ICJR Submitted Petition against Indonesia MCI Regulation on Internet Censorship to the Supreme Court

Institute for Criminal Justice Reform (ICJR), Institute for Policy Research and Advocacy (ELSAM), Legal Aid Center for Press (LBH Pers), Indonesian ICT Partnership (ICT Watch), Shelly Woyla Marliane, Damar Juniarto, Ayu Oktariani, and Suratim formally submitted a judicial review petition against the Minister of Communication and Information Regulation No. 19 of 2014 on Controlling Internet Website Containing Negative Content (19/2014 Regulation) to the Supreme Court on Friday, 21/11/2014. In the petition submission, the eight petitioners were represented by several attorneys namely Supriyadi Widodo Eddyono, Wahyudi Djafar, Erasmus Napitupulu, Robert Sidauruk, Rully Novian, Alfreus Jebabun, Zainal Abidin, Adi Condro Bawono, Asep Komarudin, and Margiyono.

There are fundamental shortfalls in the issuance of the 19/2014 Regulation. Firstly, the 19/2014 Regulation has failed to definitively formulate what is “negative content.” This has a serious implication to the enforcement of human rights, because without a clear limitation any content on the internet can be categorized as a negative content. Secondly, the issuance of the 19/2014 Regulation is based on Law No 11 of 208 on Electronic Information and Transactions (11/2008 Law) and Law No. 44 of 2008 on Pornography (Pornography Law). So the 19/2014 Regulation should only prohibits actions regulated by 11/2008 Law and Pornography Law. As an example, only regulates actions that are prohibited by Article 27-29 of the 11/2008 Law, or only prohibits websites with pornographic content.

Thirdly, it is not clear which law that gave the 19/2014 Regulation a legal ground to give the Ministry of Communication and Information (Ministry) an authority to assess whether a website is in conflict with the Laws and Regulations, moreover the authority to close that website. So the legitimacy of the Ministry in the 19/2014 Regulation is unlawful because it has no ground. Fourthly, the blocking of “prohibited content” has been actively performed by Internet Service Providers upon order from the Ministry by referring to the TRUST+Positive list that has been made based on the 19/2014 Regulation. In the implementation, the substance of these blockage provisions have restrained human rights and freedom which are guaranteed by the Constitution. The substance in the 19/2014 should be regulated by a Law to guarantee there are public participation in the discussion, and ensure transparency and accountability in the limitation efforts.

With various problems in the issuance and implementation of the 19/2014 Regulation as a background, the petitioners realize the urgency of conducting a judicial review against the 19/2014 Regulation in the Supreme Court. Because of these reasons, it was requested for the Supreme Court to perform judicial review against the whole provisions in the 19/2014 Regulation. The petitioners requested the Supreme Court to declare the 19/2014 Regulation as unlawful and generally does not in force, and also in conflict with Law No. 12 of 2011 on the Establishment of Laws and Regulations, Law No. 39 of 1999 on Human Rights, Law No. 8 of 1981 on Criminal Law Procedure, Law No. 48 of 2009 on Judicial Power, Constitutional Court Decision No. 6-13-20/PUU-VIII/2010, and Constitutional Court Decision No. 5/PUU-VIII/2010.

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