by: M. Tanziel Aziezi (Researcher of LeIP)
On Wednesday, 3rd June 2020, the State Administrative Court of Jakarta issued a judgment No. 230/G/TF/2019/PTUN-JKT. In this case, the Panel of Judges granted all the applicant’s prayers for relief related to the throttling and shut down of internet access in Papua and West Papua within the period of 14 August 2019 to 9 September 2019. The lawsuit was submitted by the Alliance of Independent Journalist (AJI) and Southeast Asia Freedom of Expression Network (SAFEnet). In the verdict, the Panel of Judges consisting of Nelvy Christin, S.H., M.H. (Presiding), Baiq Yuliani, S.H., M.H., and Indah Mayasari, S.H., M.H., decided that the Government, specifically the Minister of Communication and Information (Defendant I) and the President of the Republic of Indonesia (Defendant II), had committed unlawful acts by terminating the internet access. This judgment then received positive response from human rights activists, especially those who advocate the right to freedom of expression in Indonesia.
Points of the consideration made by the Panel of Judges in this judgment are as follows:
- The right to seek, obtain and transmit information through the internet are included as rights that should be respected, protected, and guaranteed by Article 28F of the 1945 Constitution, and also stipulated in Article 14 paragraph (1) and (2) of Law No. 39 of 1999 on Human Rights and Article 19 paragraph (2) of the ICCPR. Thus, these rights must be fulfilled by the state (pp. 245-246);
- The right to obtain and submit information through the internet can be restricted, in accordance with Article 29 paragraph (2) of the UDHR, Article 28J paragraph (2) of the 1945 Constitution, Article 73 of the Human Rights Act, and Article 19 paragraph (3) of the ICCPR. Such limitation should be based on human rights principles, especially related to the right to freedom of expression and information, which is contained in: (1) The Universal Declaration of Human Rights (UDHR); (2) The International Covenant on Civil and Political Rights (ICCPR); (3) Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights; (4) The Johannesburg Principles on National Security, Freedom of Expression and Access to Information; (5) The Camden Principles on Freedom of Expression and Equality; and (6) General Comment No. 34 ICCPR concerning Article 19 of the ICCPR which regulates the right to freedom of expression (pp. 247-248);
- Based on above instruments, there are 3 (three) conditions to examine whether the throttling and termination of internet access in Papua and West Papua were conducted as a legitimate limitation:
a. the fulfilment of a legitimate aim of human rights limitation which is to recognize and respect the rights and honor of others, or to protect moral, religious values, national security, decency, public order, or public health in a democratic society;
b. the restriction must be based on law; and
c. it must be proven that such restriction was necessary and proportionate (pp. 249).
- The throttling and termination of internet access in Papua and West Papua fulfilled the first requirement, which is carried out to protect national security and public order. However, these actions did not meet the second and third requirements because they did not carried out according to the law nor proportional;
- Regarding the requirement that limitation has to be provided by law, the Panel of Judges considered the following:
a. According to Article 40 paragraph (2)(b) of the ITE Law, the Government is authorized to: (1) terminate access; and/or (2) instruct the Electronic System Provider to terminate access to electronic information and/or documents with unlawful contents. Referring to the paragraph 9 of ITE Law General Elucidation, the Panel of Judges believes that the Government is authorized to terminate the access to electronic information and/or electronic documents limited only to specific unlawful content, instead of shutting down the whole network (pp. 252-259);
b. The same is regulated under Article 18 (a) Law No. 44 Year 2008 on Pornography, that in case of pornography distribution, the Government is only authorized to terminate and block the specific content which contains pornography or pornography service offer, instead of blocking the entire access to internet. If the termination of access is conducted against the entire internet network, it will also negatively impact positive contents and the fulfillment of other rights through the internet (pp. 258);
c. The logic of restricting the right to internet access prescribed in Law No. 19 Year 2016 is in line with the principle of “no punishment without guilt”. This means that limitation of right to internet access can only be applied against the perpetrator who unlawfully misused the internet and has been prosecuted, so that the perpetrator will no longer have access to distribute electronic information and/or document with unlawful contents. Law No. 19 Year 2016 limits restrictions only to those who use internet unlawfully and consequently does not allow the termination of internet access that might impact the rights of others than the perpetrator (pp. 265-266);
d. Government’s action in terminating and throttling internet access in Papua and West Papua was not a form of restriction of human rights, instead it was a form of derogation, which is governed by Article 4 Paragraph (1) of the ICCPR. Derogation requires a declared state of emergency. In this case, the Panel of Judges used Perppu No. 23 Year 1959 on State of Emergency to test the existence of emergency so that the throttling and termination of internet access could fall within Article 4 paragraph (1) of the ICCPR. Moreover, the Panel of Judges also mentioned that Article 13 and Article 17 Paragraph (1) and (3) of Perppu No. 23 Year 1959 authorized the Government to terminate the access of internet during the state of emergency (pp. 267-268);
e. Based on Article 1 paragraph (1), Article 2, and Article 3 paragraph (1), (2), and (3) Perppu No. 23 of 1959, the “state of emergency” should be declared by the President/Commander in Chief of the Armed Forces in whole or particular part of the territory of the Republic of Indonesia. The levels are civil emergency, military emergency, or war. In addition, under such “state of emergency”, the President/Commander in Chief of the Armed Forces is assisted by a body consisting of (1) First Minister; (2) Minister of Security/Defense; (3) Minister of Internal Affairs and Regional Autonomy; (4) Minister of Foreign Affairs; (5) Chief of the Army; (6) Chief of the Navy; (7) Chief of the Air Force; (8) Head of the Indonesian National Police (pp. 268-269);
f. During trial examinations, there was no evidence showing that the President declared a state of emergency in Papua and West Papua, as previously had been done based on Presidential Decree No. 88 Year 2000 on State of Civil Emergency in Maluku and North Maluku Provinces, and Presidential Decree No. 28 Year 2003 on State of Emergency in the Level of Military Emergency in Nanggroe Aceh Darussalam Province. In addition, there is no evidence that the President has formed a special body to control the state of emergency, there’s also no evidence that the Minister of Communication and Information is one of the officials appointed to be a part of the body. Therefore, the Government’s actions in throttling and terminating internet access in Papua and West Papua are carried out in a non-emergency situation and violated Perppu No. 23 Year 1959 (pp. 269-271).
- Regarding the requirement that the restriction should be carried out proportionally, the Panel of Judges considered as follows:
a. The freedom to express opinions and information, including press freedom, through any medium considered appropriate to reach as many as possible, is a fundamental human right which becomes the basis of other rights and freedom in democratic society. It has allows people to actualize all their rights and potential for self-development, convey and reveal the truth, and actively participating in the administration of Government in order to realize a transparent, accountable, responsive, effective and efficient governance (good governance) (pp. 270-271);
b. Most people use the internet by using cellular data services and even there is almost a dependency of the people to the internet. The action of the Government in terminating and throttling internet access in Papua and West Papua resulted in the neglect of, and even limitation of the rights of other parties who are not abusers of the internet. The examples arepress freedom in which members of the press had difficulty in direct broadcasting and verifying facts in the Provinces of Papua and West Papua, and disruption of governance activites and economic rights of the people who are dependent to the internet. Therefore, the act of throttling and terminating the internet access was not necessary nor proportional in a democratic state (pp. 271-272).
- The Panel of Judges made following comments regarding the Government’s argument that the internet throttling and termination were discretions to fill a legal void:
a. The purpose of discretion under Article 22 Paragraph (2) of Law No. 30 Year 2014 concerning Government Administration are: a) accelerate the administration of government; b) fill the legal void; c) legal certainty; and d) overcome the government stagnation in certain circumstances for public interest and benefit. All purposes are cumulative. The conditions to implement such discretion is provided by Article 24 of the same laws, which requires that all purposes must be met (Article 24 (a)) and discretion must be carried out without conflicting the law (Article 24 (b)) (pp. 261-262);
b. In this case, there was no legal void regarding the termination of internet access since it has been regulated through Perppu No. 23 Year 1959 on State of Emergency, that the Government has authority to terminate internet access only when a state of emergency has been declared, either in whole or in a part of the territory of Republic of Indonesia (pp. 272);
c. By not fulfilling the objective to fill the legal void, the Government’s actions in throttling and terminating the internet access in Papua and West Papua did not qualify as a discretion regulated in the Article 24 letter a of Law No. 30 Year 2014. Moreover, these actions violated Perppu No. 23 of 1959 and consequently did not constitute a discretion under Article 24 (b) of Law No. 30 Year 2014 (pp. 272-273);
- Based on above considerations, procedurally the action of the Government to throttle and terminate the internet access violated Perppu No. 23 Year 1959 concerning State of Emergency. Substantially, it violated the requirements of human rights limitation as regulated in Article 28J Paragraph (2) of the 1945 Constitution, Article 73 of Law No. 39 Year 1999, and Article 19 Paragraph (3) of the ICCPR. Therefore, in accordance to Supreme Court Regulation No. 2 Year 2019, the Panel of Judges decided that the actions of the Government in throttling and terminating the internet access in Papua and West Papua within the period of 14 August 2019 to 9 September 2019 as unlawful acts conducted by the Government Officials (pp. 272-273);
- The internet is a neutral medium. It will be not neutral due to its user and usage. In the case of internet abuse through distribution of unlawful content, the appropriate and proportional restriction should be in the form of terminating internet access only to content that is deemed unlawful and prosecuting the perpetrators instead of limiting the entire internet. This is because the termination of the entire internet network will have greater negative impacts in the form of deprivation of other rights which can only be enjoyed through the availability of internet. As with other human rights, the right to internet can only be derogated by shutting down the internet access during a state of emergency according to existing law (pp. 273-274);
Considering its quality, this judgment deserves an appreciation and should be followed by other Judges. It is mainly due to the ability of the Panel of Judges to combine different instruments and principles of human rights especially those related to the right to freedom of expression and other relevant national regulations and came up with a thorough consideration. This judgment is an example that national regulations and universal human rights principles are complementary instead of contrary. It also proves that Indonesian judiciary is able to harmonize those two elements into a qualified legal consideration, which eventually provide justice for the people as well as strengthening the authority of the court.