JAKARTA – A panel of judges in PTUN Jakarta, on Wednesday, June 3, 2020, has issued a ruling against the government’s internet curb in Papua and West Papua. The judges ruled that the act of throttling and reining in internet access in Papua and West Papua in August and September last year by Defendant I (the Ministry of Communications and Informatics) and Defendant II (the President of the Republic of Indonesia) was against the law. The judges also ruled the Defendants to pay the Court Fees.
The ruling was read out by Chief Judge Nelvy Christin SH. MH., together with members of the panel Judge Baiq Yuliani SH., and Judge Indah Mayasari SH. MH. The lawsuit was filed by Tim Pembela Kebebasan Pers (Press Freedom Defender Team) that consisted of the Alliance of Independent Journalists (AJI) Indonesia, the advocacy group SAFEnet (the Southeast Asia Freedom of Expression Network), the Press Legal Aid Foundation (LBH Pers), Indonesian Legal Aid Foundation (YLBHI), the Commission for Missing Persons and Victims (KontraS), the Institute for Policy Research and Advocacy (Elsam), and the Institute of Criminal Justice Reform (ICJR). Filed in November 2019, the plaintiffs requested the Judge to rule the government’s Internet curb as unlawful.
During the hearing, legal representatives of the Ministry and the Indonesian President declared that the lawsuit filed by the civil society organizations was outdated, has no legal standing, obscuur libel, and error e persona or mistaken identity. However, the judges in their ruling established that the lawsuit filed by AJI and SAFENet was still within the time limit. They also declared that both institutions were lawfully eligible to file the suit using the legal standing mechanism. Besides, the panel viewed that the lawsuit was clear or not vague. On the matter of the lawsuit against the Indonesian President, the judge says, was not error e persona. The President was correctly sued for not exercising control and correction of his subordinates when they blocked and restricted the people’s access to the Internet.
The judges also considered that the act of obstructing access to the internet violated several statutory provisions. Among others, Article 40 paragraph (2a) and (2b) of the Information and Electronic Transaction Law (UU ITE) that had become the legal basis for the Communications and Informatics Ministry in reining in and blocking internet access. The panel of judges viewed that the authority granted in the article was limited to terminating access or instructing the electronic system operator to terminate access to electronic information and or electronic documents with “unlawful contents.” "The interpretation of restricting the right to internet access as formulated in Article 40 paragraph (2b) of UU ITE only applies to electronic information and or electronic documents with unlawful content and does not warrant termination of internet access," the panel of judges said in their ruling.
Moreover, the panel of judges continued, the reason for discretion that was used by the Communication and Informatics Ministry to obstruct and curb the Internet was considered not meeting the requirements regulated in the 2014 Government Administration Law. The discretionary arrangement as regulated in the Administration Law is a cumulative unit, not an alternative, that is to: streamline government administration, fill a legal vacuum, provide legal certainty, and overcome government stagnation in exceptional circumstances for the advantage and benefit of the public.
The judges considered the Communication and Informatics Ministry’s reason in applying their discretion citing legal vacuum, was deemed inappropriate. Measures that restrict Human Rights such as curbing and blocking the Internet are only permissible when it is based on a Law—for instance, the Law on Dangerous Condition, and not on anything inferior to it. Regardless, the Government did not apply such Law when dealing with the spread of hoax information in Papua. The judges believed that the termination of internet access did not follow the procedures to restrict Human Rights as regulated in the Constitution and some other Human Rights conventions.
The Plaintiff’s Legal Representative Muhammad Isnur appreciated the PTUN ruling since it had considered many facets of Human Rights in its deliberations. Isnur added that with the government’s act of obstructing and curbing the internet access ruled as an Unlawful, it would open the opportunity for those who were aggrieved by it to file a lawsuit and request for compensation. "Of course, after [the ruling] is legally binding," Isnur said.
The curb that ended with termination to Internet access was carried out by the Ministry of Communication and Informatics following the unrest in Papua in August-September 2019. The incident was triggered by several racist and violent acts against Papuan students in East Java in Malang on August 15 and Surabaya, August 16. Under the pretext of preventing the spread of false information, the Ministry throttled and then blocked the Internet in Papua.
The complete ruling of the judges, in verbatim, was as follows:
Stating that the exceptions of Defendant I and Defendant II are not accepted
On Principal Case:
1. Grant the plaintiffs’ claim
2. Ruled that the government’s actions carried out by Defendant I and Defendant II in the form of:
1) The government’s throttling or curbing Internet access/bandwidth in several regions in West Papua and Papua on August 19, 2019, from 1 p.m. Eastern Indonesian Time to 8.30 p.m. Eastern Indonesian Time,
2) Government’s action in blocking data services and or terminating internet access entirely in Papua (29 cities/districts) and West Papua (13 cities/districts) on August 21 to at least September 4, 2019, 11 p.m. Eastern Indonesian Time,
3) and the Government’s act namely extending the blockage of data services and or the termination of internet access in four cities/regions in Papua (i.e., the capital city of Jayapura, Jayapura district, Mimika district, and Jayawijaya district) and two cities/regions in West Papua (i.e., Manokwari and Sorong) from September 4, 2019, at 11 p.m. Eastern Indonesia Time to September 9, 2019, at 8 p.m. Eastern Indonesian Time
As unlawful acts by a government agency and or official.
3. Penalize Defendant I and Defendant II to jointly pay the Court Fee of Rp457,000 (four hundred fifty-seven thousand Rupiah) (US$32.45).
The Press Freedom Defender Team’s contact:
• Muhammad Isnur 0815-1001-4395
• Ade Wahyudin 0857-7323-8190
• Abdul Manan 0818-948-316
• SAFENet 0811-9223-375