Calls for a Wiretapping Law After MK Annuls an Article Calling for a Regulation

en.hukumonline.com –  The Constitutional Court (MK) has annulled Article 31 (4) of Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law). The Article called for the government to issue a regulation concerning wiretapping. This annulment will result in the government, in this case the Ministry of Communication and Information Technology, not being able to issue a government regulation for that matter.

“Article 31 (4) of the EIT Law contradicts the 1945 Constitution and therefore is not binding anymore,” said Mahfud MD, at the MK Secretariat, in Jakarta on Thursday (24/2).

The request for judicial review was submitted by Anggara, Supriyadi Widodo Eddyono, and Wahyudi Djafar. They were arguing that Article 31 (4) of the EIT Law contradicts Articles 28G (1), 28J (2) of the 1945 Constitution. Furthermore, wiretapping is a limit on individual privacy rights, which are a basic human right. Therefore it has to be regulated by a law and not merely a government regulation.

In its verdict, the MK said that there is no comprehensive law or regulation regarding wiretapping. The rules for wiretapping are spread throughout several prevailing laws and regulations, with different mechanisms and procedures. For instance, the EIT Law, Law No. 40 of 1999 on Telecommunications, and Law No. 35 of 2009 on Narcotics.

“The prevailing laws and regulations do not provide clear instructions on wiretapping, such as warrants, limits, and authorized officials. This can lead to violations of constitutional rights, since all of this is based on the each institution’s policy,” said Justice M Akil Mochtar.

According to the MK, wiretapping is a violation of the right to privacy, which is part of the fundamental human rights. Even though the right itself can be limited, this should be governed by a law, as regulated under Article 28J (2) of the 1945 Constitution.

Therefore, a specific law on wiretapping is needed if wiretapping is going to take place, since mere government regulation cannot limit human rights. “It only regulates administrative matters,” explained Justice Akil.

MK referred to its decision, No. 006/PUU-I/2003, which states that “to prevent the abuse of authority through wiretapping and recording, laws and regulations on wiretapping and recording procedures are needed”. MK also referred to another decision, No. 012-016-019/PUU-IV/2006, which states that human rights limitations by wiretapping have to be regulated by law to prevent human rights violations by abuse of authority.

After the verdict, Wahyu Wagiman, one of the counsel, lauded the MK decision. “The decision protects human rights, since the Article has the potential to violate it,” he said. He also asked the government and parliament to draft a comprehensive bill on wiretapping so that it could be passed as a law.

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