Criminal Policy and ITE Law

Law enforcement that is solely repressive without paying attention to the preventive approach will conflict with the nature and characteristics of crime that comes from the community.

Kompas

Muladi

Kompas daily (23/9/2019) on page 3, in the political and legal flashback rubric, reported that since the Electronic Information and Transaction (ITE) Law took effect in 2008, the number of criminal cases related to the law has continued to increase from year to year. From 2017 to 2019 alone, a total of 6,895 people were investigated by the National Police, with 38 percent of the investigations related to insults to national figures, authorities, public institutions, 20 percent related to the spread of deceptions, 12 percent related to hate speech and the rest to other actions.

According to Damar Juniarto, executive director of the Southeast Asia Freedom of Expression Network (SAFEnet), vulnerable groups for prosecution are journalists, anticorruption activists, environmental activists and minorities, both gender and religious. SAFEnet data shows there were 245 cases of violations of the ITE Law in the 2008 to 2018 period relating to criminal acts of defamation, hate speech, libel and threats, pornography, accusations of defamation and crimes against the general authorities.

Our memories have not been lost about the cases of Ahmad Dhani, Prita Mulyasari, Nasril "Ariel" Irham, Baiq Nuril, Buni Yani, Muhammad Arsyad, Anindya Joediono, Ratna Sarumpaet and others who were all perpetrators of criminal acts, as well as victims of the application of the ITE Law, both before being revised (Law No. 11/2008) and after being revised (Law No. 16/2016).

Looking at the data above, people begin to wonder why the law, which also contains regulations on cybercrime (vide Cybercrime Convention, 2001), is accused of being an instrument for persecution. What is wrong? This is where people have to start thinking about criminal policy, which implies a rational organization of people\'s reaction to crime. This criminal policy is part of the law enforcement policy, which is manifested both as a science and as an applied application.

Is the requirement of prosecution part of a repressive step and a sign the start of the criminal justice system has been fulfilled?

This legislative and law enforcement step as a whole is part of social policy with the target of improving the welfare and security of the community (Hoefnagels, 1969).

From that conceptual thinking framework three questions appear. First, what are the aims and nature of prosecution in the ITE Law? Second, is the requirement of prosecution part of a repressive step and a sign the start of the criminal justice system has been fulfilled? Third, what forms of preventive measures have been formulated? In this case, in addition to repressive and preventive measures without the use of criminal law, Hoefnagels also sees the important role of the mass media\'s strategic role in influencing the public\'s view of cybercrime and the intensity of its criminal convictions.

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KOMPAS/RADITYA HELABUMI

Baiq Nuril Maknun (center, in red hijab), a former contract employee of SMAN 7 Mataram senior high school in West Nusa Tenggara who has been convicted of violating the Electronic Information and Transactions (ITE) Law, arrives at the Law and Human Rights Ministry in Jakarta on Monday (8/7/2019). Baiq Nuril, accompanied by House of Representatives lawmaker Rieke Diah Pitaloka of the Indonesian Democratic Party of Struggle faction and her two lawyers, Joko Jumadi and Widodo, was at the ministry to meet with human rights minister Yasonna Laoly (not pictured) over her appeal to the President for amnesty.

The nature of criminalization

The nature and purpose of criminalizing a series of actions related to ITE is clearly not to create a "trap" of a retributive justice system. It is also not intended to make the criminal justice system easily and simply operate by itself. The justice system does not necessarily become easy, like an assembly plant or line that runs automatically with the help of robots. It will also not be as easy as a conveyor belt to smoothly collect baggage at an airport without problems.

The aim is to guarantee recognition and respect for the rights and freedoms of others. Another goal is to meet fair demands in accordance with considerations of security and public order in a democratic society in order to achieve justice, public order and legal certainty. If it turns out to have resulted in many suspects, defendants and convicts because of the ITE Law, is there an error in the prosecution process?

The original definition of criminalization is the process of making an act a criminal offense or a person an offender. This is a set of principles of legislative ethics that must be considered by lawmakers (Jargenson, 2004). In the criminal law there is the principle of legality formulated in Article 1 Paragraph (1) of the Criminal Code as nullum delictum nulla poena sine praevia lege poenali (the act can only be convicted if prior to the act there is a law or legal regulation prohibiting it, accompanied by imprisonment threats).

This principle of legality is often clarified by the terms lex praevia (prohibition of retroactivity), lex scripta (must be written), lex stricta (analogy prohibition) and lex certa (guarantee of legal certainty). This is aimed at limiting the two state authorities to be careful in criminalizing, namely, first, ius poenale, namely the state\'s right to prohibit what is against the law (onrecht) and to impose misery on those who violate the prohibition. Second is ius puniendi, namely the right of the state or state apparatuses to impose, sue, threaten and convict over certain crimes on the basis of the above ius poenale.

Criminal law experts then continue to formulate guidelines for criminalization to avoid excessive criminalization that can be considered as a misuse of criminal law sanctions (Cohen, 2012). The signs are, first, to what extent their values or interests are threatened, second, the protection of these values or interests cannot be achieved by other means, third, the criminalization is not excessive or intrusive, fourth, the imprisonment must be efficient, fifth, the costs of the criminal justice system must be measurable compared to the burden of criminalization, and sixth, the interests of victims must allow easier compensation.

From here three moralities or dimensions of interests must be protected, namely the interests of the state and society, the interests of victims, and the interests of the accused who are not necessarily guilty.

From various criticisms of the ITE Law, it appears that this law is still considered in some respects to not guarantee legal certainty, some formulations allow for multiple interpretations (flexible) so that they disrupt freedom of expression (opinion, criticism) in the era of democracy through Facebook, Twitter, YouTube and messenger services (SMS, WhatsApp and BBM).

Moreover, the ITE Law tends to trigger disputes among citizens who easily report to law enforcers and increase the source of conflict between the authorities and community members. Some articles are considered to be a duplication of the Criminal Code. Furthermore, there is an impression that the ITE Law on the one hand contains elements of protection, but also contains threats and results in anxiety.

Thus, the government and the House of Representatives (DPR) need to evaluate whether the above criminalization standards have been met to ensure the three legal functions, namely legal certainty, justice and expediency, because the revisions of Law No. 19/2016 are considered unsatisfactory. Despite these weaknesses, it must continue to be developed to improve the quality of law enforcers to be able to take action in tracking ITE crimes and neutralize negative content.

KOMPAS/ANDY RIZA HIDAYAT

Djoko Setiadi giving an explanation to journalists after being instated by President Joko Widodo as head of the National Cyber and Encryption Agency (BSSN) at the State Palace, Jakarta, Wednesday (3/1). Previously, Djoko was head of the National Encryption Agency, which has been revitalized into BSSN. Having had its position strengthened under the control of the President, the agency is responsible for building a resilient and safe cyber ecosystem in Indonesia.

Preventive measures

Meanwhile, there is a need for various preventive measures to be developed. This is because globalization and technological disruption caused by Industry 4.0 (the internet of things) are relatively new and the public does not yet understand and realize the ethical use that must accompany them. Yet, on the other hand, data about internet users continues to grow. According to Indonesian polls done in collaboration with the Indonesian Internet Service Providers Association (APJII), of the total population of 264 million in Indonesia in 2018, as many as 171.17 million people were connected to the internet.

Thus, the preventive measures that must be developed are primarily digital literacy programs. This aims to improve the ability to effectively and critically and ethically behave in navigating, evaluating and making information using various digital technologies. The targets are government civil servants, families, communities and the pres, in order for them to be able to use social media positively. Moreover, it is necessary to publicize the dangers of the internet and cybercrime and the ways to personally protect against them.

For all this, the role of mass media in the era of democracy is very strategic. In addition to making news and compiling a social agenda, the media also conducts interpretation, outreach and education. The role of the media includes persuasion and propaganda, to prevent and eradicate criminal acts involving information and electronic transactions and cybercrime in general in a professional manner.

Muladi, Professor of Criminal Law, School of Law, Diponegoro University, Semarang.