Court Deals a Blow to Wiretap Investigations

The Jakarta Globe. The Constitutional Court on Thursday struck down a contentious decree governing the use of wiretaps, calling it a violation of human rights and making it more difficult for law enforcers to carry out such surveillance.

At issue in the review of the regulation that enforces an article of the 2008 Law on Information and Electronic Transactions (ITE) dealing with wiretaps.

Constitutional Court chief Mahfud M.D. said the motion against the article, brought by three lawyers last year, had been approved because enforcement through a regulation rather than a law — which must be approved by the House of Representatives — left it open to abuse.

“We declare Article 31, Chapter 4, of the 2008 ITE Law goes against the Constitution,” he said.

The court also ruled wiretapping went against the right to privacy that, based on a 2004 ruling by the court, was considered to be a basic right that could not be infringed for any reason.

“To prevent any violations by the authorities in intercepting and conducting wiretaps, the court believes there must be a single clear regulation on the issue,” Mahfud said.

Akil Mochtar, another of the judges involved in the hearing, said the problem was that several regulations already covered wiretapping.

“Hence, there’s no rigid mechanism governing interception, which makes it possible for violations to occur when wiretapping is carried out,” he said.

Akil added that only authorized institutions should carry out wiretapping and the mechanisms governing them should be precise and up to date.

“While there is an urgent need to carry out wiretapping, their execution must have a sound legal basis so that the privacy of individuals is not infringed upon,” he said.

“The rules governing interception should only be laid out in the form of a law, and not a government regulation.”

Practically speaking, the ruling means law wiretapping warrant can no longer be sought under that article of the ITE law.

Wahyu Wagiman, legal representative for the petitioners, lauded the court’s decision.

“This verdict will minimize the infringement on people’s privacy and will force the government to rearrange the existing legislation on interception,” he said after the hearing.

He added there were already several regulations on wiretaps but little monitoring of how they were carried out.

Anggara, one of the petitioners, said he filed the review because he was concerned about the possibility of having his privacy violated by the government.

“I’m an attorney and I have to protect my clients, and as a citizen I want my correspondence to be protected,” he said.

Haryono Umar, a deputy chairman at the Corruption Eradication Commission (KPK), one of the few institutions allowed to wiretap and the only one that can do so without a warrant, said intercepting phone calls was necessary because corruption was considered an extraordinary crime.

“Intelligent people are involved, including those who have cash and networks,” he said. “Modern technology is also used, so without the authority to wiretap it would be difficult to eradicate corruption.”

The KPK’s authority to conduct wiretapping is regulated under the 2002 KPK Law and is therefore not affected by Thursday’s ruling.

However, Hasril Hertanto, a legal expert from University of Indonesia, said even the KPK wiretaps were a violation.

“There’s a need to limit the authority of law enforcement institutions, even one such as the KPK,” he said. “We can’t always expect that the KPK will be helmed by clean leaders, so a separate law on wiretapping would protect the commission itself from abuse of power.”

Hasril said there were other ways to collect evidence besides conducting wiretaps.

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