ICJR Sent Amicus Curiae Brief for Baiq Nuril Maknun, a Victim of Sexual Harassment Who Is Accused of Violating Section 27 (1) of the ITE Law

On 17 July 2017, ICJR filed an Amicus Curiae brief to the Mataram District Court for the case of Baiq Nuril Maknun with case register number: 265/Pid.Sus/2017/PN.Mtr.

“Amicus curiae” or “Friends of the Court” is a practice derived from the Roman legal tradition, which then evolved and practices in the common law tradition. Through this Amicus Curiae mechanism, the court is granted permission to receive-invite third party to provide information or legal facts relating to unfamiliar issues in the court proceedings.

Amicus Curiae is a concept of court support in a case. ICJR in this event, is a party that can be an Amicus Curiae based on a long practice and focus of ICJR in criminal justice reform and prior to this ICJR has often acted as Amicus Curiae in various cases, so that this Amicus Curiae is expected can assist the Judges in trying the case of Ibu Nuril.

Baiq Nuril Maknun (Mrs. Nuril), a 36-year-old housewife, previously she was a honorary staff in SMAN 7 Mataram. But then she was dismissed by M, the principal of SMAN 7. Mrs. Nuril was reported by M on accussation of defaming M through a recorded phone conversation between M and her. Reportedly the recorded conversation is about M’s immmoral action / “sex relations” with a woman other than his wife. In addition, she was also ofttimes seduced and invited by M to stay  overnight in hotels when M was still serving as the Principal, but it was always refused by Mrs.Nuril.

The recording done by Mrs. Nuril was with the sole intention to be used as a proof that she does not have a special relationship with M. Because there was a circulated  hearsay in the school where she worked, that she has a special relationship with M due to their late evening work.

The recording then reached HIM, one of the SMAN 7 school officials, who transferred the recording to his laptop without the consent of Mrs. Nuril. Furthermore, HIM  sent the recording to several other SMAN 7 staffs including the supervisor of SMAN 7 in the Government Office of Education Youth and Sports of Mataram city.

Due to information and complaints made from the school officials for M’s actions, M was dismissed from his post as Principal. Feel embarrassed of his dismissal from his  position as principal, M then reported Nuril to Polres Mataram with Police Report number: LP/K/216/2015/Polres Mataram dated 17 March 2015 for allegedly her actions has fulfilled a violation as worded in Information and Electronic Transactions Law (or locally known as ITE law), any Person who knowingly and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with contents against propriety or defamation as regulated
in section 27 paragraph (1) of Law No. 11 of 2008 on Information and Electronic Transactions or Article 310 of the Criminal Code.

On 27 March 2017, Mrs. Nuril was summoned by the Mataram Police Investigator which she then came with her 5-year-old son because she was not expecting herself to be arrested. Mrs.Nuril was detained for approximately 2 (two) months from the investigation level to the prosecutor’s office.

Until now, by 14 June 2017, Mrs. Nuril has undergone seven sessions. The first session was took place on Wednesday, 3 May 2017, with the agenda of Reading the Charges by the Prosecutor. Mrs. Nuril is charged for violating section 27 paragraph (1) Jo. Article 45 paragraph (1) of Law No. 11 of 2008 on Information and Electronic Transactions. The trial which started on the second session on Wednesday, 10 May 2017 until the fifth session on Tuesday, 30 May 2017 followed by the agenda of the  examination of witnesses and experts’ testimonies. In the sixth session on Wednesday, 31 May 2017, Judges of Mataram district court has suspended the detention of  Mrs. Nuril from a detainee to city arrest.

The seventh trial or the prosecution was held on Wednesday, 14 June 2017. By the Prosecutor, Mrs. Nuril was considered has legally and convincingly proven guilty of a deliberate and unlawful act of distributing or transmitting electronic documents that have content against propriety, violating section 27 paragraph (1) Jo. section 45 paragraph (1) of Law No. 11 of 2008 on ITE, prosecuted for 6 months of imprisonment minus the detainment period and a fine of Rp. 500.000.000,- (five hundred million rupiah).

With regard to this matter, the ICJR considers that:

Firstly, the violation in section 27 paragraph (1) of the ITE Law is inseparable and must refer to the morality provisions as provided in the Criminal Code, because the ITE law does not provide a sufficient understanding related to section 27 paragraph (1) of the ITE Law. In line to that, the element of “in public and open place” have to be positioned as a paramount element, so the elements contained in section 27 paragraph (1) must also be referred conjointly with the “public and open space” element as provided in the section 310 of Criminal Code. The court must carefully examine the case of Mrs. Nuril, whether there was a clear intention to violate the section 27 paragraph (1) of the ITE Law as identified with the elements “in public and open space”.

Secondly, in the context of the “without authority” element of Mrs. Nuril’s action by distributing and/or transmiting and/or causing to be accessible Electronic Information and/or Electronic Records. Those should be done in an electronic setting. What happens in this case is obviously not in an electronic setting.

Thirdly, based on the court rulings on cases like this, in line with the element of “without authority” of Mrs. Nuril’s action, it should be approved whether there is any content against propriety or immoral contents and sexual harassment that can be linked to M’s action. Additionally, the action of Mrs. Nuril also can be justified because it delivers a “warning” to others, prevent them to become victims of M.

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