Beruflich Dokumente
Kultur Dokumente
This edition of ICLaD is special, because this edition is released at the same time with
the day that ICJR is turning into 9-year old. Throughout the 9 years of existence, ICJR is
still constantly striving to push law reform in Indonesia, both criminal law reform and
criminal justice system reform.
What was done by ICJR to reform law in Indonesia cannot be separated from numerous
cooperation which have been established by ICJR with its partners. This partnership
enables ICJR to keep growing and developing into one of the non-governmental
organizations in the law sector that earn an extraordinary place in the field of law
reform.
The road has been passed and ICJR is not going stop for the better Indonesia.
Ifdhal Kasim
Editor-in-Chief
Reconsidering Article 27 Paragraph (3) of Electronic Information and
Editor in Chief: Transaction Law in Court Decisions
Ifdhal Kasim
Author: Anggara
I. Introduction
English Editor
Ever since the internet was introduced in 1988, its development and growth ran very
Pirhot Nababan
fast. Specific to Indonesia, the internet is used by 88.1 million out of the 250 million
population, which makes Indonesia as the largest internet user in ASEAN region.
Contributors: Due to this rapid grwoth, policy-makers in Indonesia start looking at ways to regulate
the Internet, particularly by recriminalizing acts that are already included under the
Adiani Viviana Criminal Code (KUHP). Such is evident from the enactment of Law No. 11 of 2008 on
Electronic Information and Transactions (UU ITE). To be more specific, this legislation
Anggara stipulates provision regarding freedom of expression under Article 27 paragraph (3)
in conjunction with Article 45 paragraph (1). This provision is considered as
Erasmus A.T. Napitupulu duplication and prone to multiinterpretation (pasal karet) compared to a similar
provision under the existing KUHP.
Indriaswati D. Saptaningrum
After UU ITE was passed, criminal defamation cases involving internet users in
Robert Sidauruk
Indonesia are significantly increased. Due to the Indonesias challenging geographical
situation, there are difficulties to improve access to justice for the
Sriyana
suspects/defendants in these cases. In addition, the availability of advocates/lawyers
Supriyadi W. Eddyono who understand internet issues are not sufficient, especially those thaty may give
human rights approach in the respective case.
Syahrial M. Wiryawan
Wahyudi Djafar II. Article 27 Paragraph (3) UU ITE: The Setback of Criminal Policy
Wahyu Wagiman Within criminal policy, criminal law and punishment are the tools to control the
community using penal approach. Therefore, criminal policy is basically a policy to
Zainal Abidin
determine: (a) how far the prevailing criminal provisions are necessary to be changed
or updated; (b) what to do to prevent crime; (c) how to carry out the investigation,
prosecution, trials, and execution.
In the context of Indonesian criminal policy, criminalization and restrictions on freedom of expression through
various laws are not aligned and contradict the development of modern crime prevention in a democratic
society. Criminal sanction become a major instrument in limiting freedom of expression in Indonesia. This leads to
Indonesias status as Partly Free under the 2015 Freedom Houses report, sharing the same position with
Singapore, Malaysia, and Cambodia.
Under the current framework, criminal defamation is stipulated under Chapter XVI of KUHP and consists of seven
parts: defamation, libel, mild insult, insult to civil servants, libel complaint, false allegation, and defamation of the
dead. Moreover, KUHP also regulates specific forms of insult: insult to the President/Vice President, to the Head of
Friend State or representative of Foreign Countries in Indonesia, to the Government of Indonesia, to the certain
Group, to the General Public Bodies.
In addition to KUHP, other laws are also regulating criminal contempt, including Law No. 32 of 2002 on
Broadcasting; Law No. 32 of 2004 on Regional Government; Law No. 42 of 2008 on Presidential Election; Law No. 8
of 2012 on General Election; Government Regulation in lieu of Law (Perppu) No. 1 of 2014 on Election of the
Governor, Mayor, and Regent; including UU ITE.
Specific to the UU ITE, this legislation always brings controversy since its creation, especially the criminalization
part. One of the most highlighted provisions is Article 27 paragraph (3). Based on the wording of the article, there
are some major drawbacks in the elements, namely:
Issues Remarks
Weak intent or deliberate "animus injuriandi" is not required by Article 310 of KUIHP, but simply
element in the formulation requires the existence of awareness, knowledge, or understanding on the
perpetrators that his objective statement would result in and attack the
honor or reputation of a person.
No details of the key elements Some important elements are not described, such as the meaning
of 'distribute', 'transmit' and also 'make accessibility'.
The unclear elements of insult There is no clarity of insult or defamation, and therefore it must refer to
and defamation Articles 310 paragraph (2), 311 and 315 of KUHP, which is often
referred to as "genus crime" of criminal insult and defamation. This provision
must also be tested with element of crime, justification reasons, or common
doctrines
Potential violation of privacy Legal basis to determine whether or not such acts as defamation or insult
require democratic and publicity elements. Democratic requirement does not
allow/justify convictions to the statements that are not spoken or written
publicly. Therefore, 'private correspondence' and 'private conversation' are
not a subject or object of punishment. While the publicity requirement
requires such offense must be in writing on printed and electronic media or
made verbally. nsult/defamation as an offense is always based on the
element of 'with the intent to be known by public'.
No clarity of complaint offense This article formulation is not clear whether it is a complaint offense or
(delik aduan) or not not. Genus crime of this article, namely, Articles 310 par. (2), 311, and 315 of
KUHP are complaint offenses. The law enforcement officers can process the
perpetrators if there are complaints from the victim or the injured party.
Eliminating the classification of Create confusion on the maximum limit sanctions of imprisonment or fines of
insult and defamation each class of insult (defamation, libel, slander, mild insult, the complaint of
slander and false presupposition).
Eliminating justification Article 27 paragraph (3) seems to have no relation to Article 310 of KUHP,
reasoning of the insult thus it is not necessary to have justification reasoning, which is then became
the root of the problem.
From 2009 to 2015, ICJR recorded 20 cases brought before the court, in which the defendants are charged with the
Article 27 paragraph (3) of UU ITE. Out of these 20 cases, ICJR finds 7 court decisions that can be the basis to
defend cases on Article 27 paragraph (3) of UU ITE. These cases were successful, considering several key questions
regarding regular offense or complaint, distribution element, procedural and evidence law, element of "has a
charge of insult and/or defamation" and additional justification reason.
V. Key Considerations of Court Decisions Regarding Use of Article 27 Paragraph (3) of UU ITE
5.1. Regarding the Status of Article 27 Paragraph (3) UU ITE as an Absolute Complaint Offense
One fundamental weakness of Article 27 paragraph (3) of UU ITE is whether or not this offense is an ordinary
offense or an absolute complaint offense. Pursuant to the Constitutional Court Decision No. 50/PUU-VI/ 2008 and
No. 2/PUU-VII/2009, it was concluded that the interpretation and implementation of Article 27 paragraph (3) of
UU ITE is congruent with the application and interpretation of Articles 310 and 311 of KUHP as an absolute
complaint offense as stipulated in Article 72 of the Criminal Code (see also the Supreme Court Decision No. 183
K/Pid/2010). As an absolute complaint offense, only those who become 'victims' of direct insult that may report
the offense, not other people. In addition, the Raba Bima District court also affirmed the importance of mentioning
the name naming along with the allegations. Otherwise, the statement does not have a charge of contempt as
stipulated in Article 27 paragraph (3) of UU ITE.
5.2. Regarding the Criminal Procedure and Evidence Law (Digital Evidence as "Proof")
In general, there are three classifications of electronic evidence forms (digital evidence) namely electronic
documents congruent as mailing documents, electronic signatures equivalent to handwritten signatures, and
aligning the electronic mail with regular postal mail. These documents need further validation, similar to
traditional physical evidence.
Evidence in Indonesian legal framework is stipulated under procedural law, either civil or criminal. Article 184
paragraph (1) of the Criminal Procedural Code (KUHAP) stipulated five types of evidence: (1) witness statement, (2)
experts statement, (3) letter (documentary), (4) directive and (5) defendant statement. Although none of the
procedural law provisions state the position of the electronic evidence (digital evidence), but KUHAP has
established the foundation to recognize electronic evidence under Articles 41, 184 paragraph (1) letter c, and 187
letter (d).
The Supreme Court responded to the presence of electronic evidence after the enactment of the KUHAP, namely
Supreme Court Letter No. 39/ TU/88/102/Pid, dated 14 January 1988. The Letter states that microfilm or
microfiche can be used as legal evidence in a criminal case court. These types of document, however, must be
authenticated/validated from the case registration and trial proceeding. After the Reformasi era, many laws and
regulations adopt electronic evidence to become part of the legal evidence in court. In UU ITE, the electronic
evidence is not only part of the documentary (letter) and directive evidence as stipulated in KUHAP, but also a new
evidence other than evidence that already exist. With the current framework, electronic evidence in Indonesia can
be categorized into three types at the same time: documentary evidence, directive evidence, also as stand-alone
evidence.
The most important thing to understand is the Then, in Muhammad Arsyad case at the Makassar
acknowledgement of electronic evidence before the District Court, with similar legal issues, there is
Court, because electronic evidence can be difference in the validation outlined by the
manipulated by a third party and raise questions and Court. Evidence presented is a personal status print
debate on who is the owner of such electronic out of PIN number 215A000AA, created by
evidence. There are five types of electronic Muh. Zulhamdi Alam. Therefore the Makassar
evidence: websites, communication in social media, District Court considered with two-way
e-mails, text messages, and documents stored in the validation: First, by presenting two or more people
computer that have a unique challenge to make such who are friends in BBM contact with the accused PIN
electronic evidence be admitted as evidence in number to prove that the owner of the PIN BBM
court. Basically, electronic evidence is only as number is really the owner of that property;
supporting evidence which needs to be confirmed Second, if there are no witnesses who testified, then
through other evidence. Electronic evidence also has examination should be done through digital
a lower position than the witness statement forensics by informatics expert to ensure the owner
evidence in court. of BBM account and PIN numbers, as well as
determine determine whether a series of written
Theoretically, evidence is valid if the procedures to words is indeed coming from the accused phone
collect such evidence carried out according to the with such BBM and PIN numbers.
law and by the competent authority. Related to
electronic evidence (digital evidence), UU ITE 5.3. Regarding the Justification Reasoning
categorizes that retreiving evidence by violating the
law and carried out by the incompetent authority is Another fundamental weakness of Article 27
a crime according to Article 30 of UU ITE. Proof of paragraph (3) of UU ITE is regarding the chapter
conversation in the form of photocopies that was name of KUHP that is used to formulate an offense.
taken in an unlawful manner and without any order Consequently, there is no insult classification model
from the competent authority, cannot be put similar to KUHP and it makes the lack of justification
forward as valid evidence in court. reasoning as recognized in Article 310 paragraph (3)
of KUHP. In addition, law enforcers could freely
Validation of electronic evidence (digital evidence) in interpret as to when the provision can and cannot be
criminal justice process should comply with used, and at the same time determine or estimate
requirements under Article 6 of UU ITE, in which the maximum penalties of imprisonment and/or
electronic evidence is considered valid if: (1) fines for each class of insult by themselvesthough
accessible, (2) presented, (3) its entirety secured, it is limited by the maximum criminal sanctions
and (4) can be accounted as a whole to explain a under Article 45 paragraph (1) of UU ITE.
situation. These conditions are cumulative and
imperative to classify on whether an evidence
presented before the court is appropriate. Furthermore, justification reasoning under Article 27
paragraph (3) UU ITE is not clearly defined. In
Of the abovementioned 20 cases, ICJR noted two practice, the Court generally refers to the
cases that carefully consider the electronic evidence justification reasoning from Article 310 paragraph (3)
and its validation, mainly related to the offense of KUHP, that is, on the formulation of "intentionally
element of "every person". This is evident in the case and without right" or formulation of "without
of Muhammad Fajrika Firza a.k.a Boy bin A. Ganie right". Without right element is the reason on
Mustafa, who was alleged as the manager of whether a person may or may not be convicted.
@fajriska Twitter account that deemed to defame Justification reasoning is established in the
Marwan Effendi. In its consideration, the South construction of Article 310 of KUHP that is in the
Jakarta District Court confirmed ownership of the public interest or as necessary defense.
account by conducting an examination and carefully
looking at all witness statements presented in court, In the case of insult using a website, the Tangerang
where all witnesses did not know and see whether District Court emphasizes the source of formulation
such Twitter account really belongs to the is Chapter XVI Book II of KUHP based on defamation
defendant. (Article 310 of KUHP), in which the reason for
unlawful acts was dismissed (Article 310 paragraph
(3) of KUHP). If it was conducted for the public No. 50/PUU-VI/2008, and therefore it cannot be
interest or because it was necessary to defend separated from its genus: Articles 310 and 311 of
himself, the defendant has the right to distribute, KUHP.
transmit, make accessible electronic information
even though it contains an insult. Although in Second, as an absolute complaint offense, only
general the Court refers to the justification 'victim' of direct insult may report such offense.
reasoning in Article 310 paragraph (3) of KUHP, but
in practice, the court also recognizes other reasons Third, regarding validation of electronic evidence,
such as the truth of the statement and the the panel of judges need to consider the ownership
statement that caused by emotion of a of social media accounts by confirming through
circumstance, as well as the statement in order to examination and all witnesses statements in
obey the prevailing law, wherein these reasons had court. If there are no witnesses who testified, an
caused the defendant was not convicted. informatics expert must conduct digital forensic
examination.
VI. Conclusion
Fourth, regarding validity of the evidence as key
The abovementioned various court decisions evidence to the existence of a crime, the court
showed that the formulation of a crime under Article decided based on Article 5 paragraph (4) in
27 (3) of UU ITE requires many references to the conjunction with article 6 of UU ITE.
panel of judges to interpret the elements correctly.
However, there are several considerations from the Fifth, regarding justification reasoning, the Court
decisions as lesson to deal with Article 27 paragraph must conduct an assessment of "without right"
(3) of UU ITE: element, that if there are critics and for public
interest, then there is no element of insult or
First, Article 27 paragraph (3) of UU ITE is an defamation.
absolute complaint offense, the interpretation of the
norm is based on the Constitutional Court Decision
Introduction
The origins of the term corporation or corporate can be traced to the Latin language "corporatio", a
noun originated from the Latin verb corporare, which is derived from "corpus" or body/entity. In other
words,a corporation or a company is a body or an entity that created under a law. It has physical
structure and personality.
Within the current Indonesia legal system, the position of a corporation as a subject to the criminal law
can be found on many laws and regulations, except the existing Criminal Code (KUHP). However, the
2015 version of the Draft Bill on Criminal Code (RKUHP) accommodates corporation as a subject to the
criminal law. Nevertheless, a thorough and in-depth elaboration on this matter must be taken into
further discussion, due to fundamental difference between a corporation and a natural person
(natuurlijk person) as a subject to the criminal law. Consequently, this discussion will touch several basic
concepts such as determination of fault, criminal actor, corporate criminal liability, and many other
issues.
Regarding the determination of fault, the interpretation of this concept as an essential element of
criminal liability is originally aimed at human (natural person), and not aimed at a corporation as a legal
person (recht persoon). It is evident from the broader interpretation. Such problematic interpretation
can be seen from intentional crime (dolus) or merely a negligence (culpa).
In addition, determining a criminal actor is also another problem. Even though a corporation itself can
be categorized as a legal personand therefore subject to liabilityall of its actions are conducted by
the board of directors, which represents the corporation as a legal person. Due to this fact, members of
the board of directors will be liable for the actions that have been taken, instead of the corporation
itself. Consequently, only members of the board of directors that can be criminalized and punished.
The early history of corporation establishment is still unclear. However, it is fair to say that this
establishment was aimed to fulfill certain interests that cannot be satisfied by natural persons. With the
historical development, corporation was further affected by technological progress that brought great
influence in industrial activities, including changes of organization structure, human resources, assets,
capitals, and expansion of overseas business activities. Due to this development, the industrial sector
required a legal framework that may protect the interests of the employers and the society as well. Such
protection was realized in 1855 using a limitation of corporate liability, and it was shown by using the
word limited at the end of every corporations name.
France, a country that indirectly impacting The principle of "no punishment without law" is
Indonesian legal systemdue to French an essential element under the criminal
colonization to the Netherlandsincluded law. Nevertheless, this important principle is
corporation as a legal subject under the Code de not explicitly incorporated under KUHP, unlike
Commerce and Code de La Marine. This concept the legality principle that is stipulated under
was further adopted by the Dutch legal system Article 1 paragraph (1). In essence, this principle
under the Wetboek van Koopenhandel. As a forbids criminal conviction against a person
consequence, the development of this concept when there is no provisions under a law, even
also affected Indonesia, which by that time was though the respective individual had committed
the Dutchs overseas colony territories under a certain action categorized as crime. The 2015
the name Nederland Indies. version of RKUHP mentioned the principle of
"No Punishment Without Law" under Article 38
There are three phases of development in paragraph (1), stating: "No one who commits a
which corporation is treated as a subject to the
crime is convicted without fault".
criminal law. Firstly, determining that actions on
behalf of a corporation, only apply to natural Regardless, the problem remains on the
person. In other words, any action conducted implementation of such principle to a
under the corporations name is considered to corporation, as this is heavily related to the
be executed by the members of the board of attitude (intent or negligence) of human as a
directors as legal persons (naturlijk person), natural person. The element of intent or
because they have the duties to manage the negligence arises because of the elements of
corporation (zorgplicht). This concept was psychological and physical which are only found
taken into place due to the doctrine known as in human as a natural person. Therefore, a
societas non potest or university delinquere non corporation can be considered to have no fault.
potest. When the Dutch government
passed Wetboek van Straftrecht in 1881 and Van Bemmelen, additionally, believed that that
adopted the aforementioned principle, it common knowledge between members of the
influenced the Indonesian Criminal Code, and board of directors may be regarded as the
therefore limits the liablity to natural persons intention of the respective corporation. Jan
when it comes to corporation. Remmelink also shared similar opinion, stating
that the lack of action from a corporation, or
The second phase was the acknowledgement any action there is, will be represented by
that a corporation can actually commit a crime natural person. In this regard, a corporation can
(dader). However, the liability (prosecutions still have fault from its board of directors who
and convictions) was still aimed at the board of perform their duties. Hence the principle of "No
directors. Lastly, the corporate criminal liability, Punishment Without Law" still applies to a
which started to rose after World War II. During corporation.
this phase, it was possible to claim and ask for
liability against a corporation.
Institute for Criminal Justice Reform (ICJR), having established in 2007, commits to take the
initiative to support measures in realizing the proposed reformation. ICJR is formed with an
exclusive mission to support collective actions in honoring the Rule of Law and realizing criminal
justice system with strong human rights protection character.
Law No. 41 of 1999 on Forestry (Forestry Law) Article 6 of the Money Laundering Law further
states that corporation is not limited to legal
Corporate liability can be found under Article 78 entity, but also to group or other associations.
paragraph (14) of the Forestry Law. Under this In conclusion, under this law, a corporation is
provision, a corporation will be considered as considered as the actor can be held liable.
the actor, but the board of director remains as Article 6 paragraph (2) of the Money Laundering
the party that will be held liable. Law regulates criminal prosecution against a
corporation if the money laundering crime:
Law No. 32 of 2009 on the Environment
Protection and Management (Environmental 1. Conducted or ordered by the Corporate
Law) Controller Personnel
2. Conducted in order to fulfill the
The Environmental Law recognizes corporation objective and purpose of the Corporate
as a subject under Article 1 point 32, by 3. Carried out in accordance with the
expanding the definition of "everyone" (setiap duties and functions of the actors or the
orang), which includes a corporation. As a order, and
result, a corporation is considered as the actor 4. Conducted with the purpose of
and can be held liable. The corporate liability is benefitting the Corporate.
Corporation under the 2015 Draft of RKUHP The implementation of identification theory
(RKUHP 2015) creates particular criticism, in which this
doctrine is considered as legal barrier to held
Article 48 of the RKUHP 2015 states corporation liable, as this doctrine only aimed
that: "corporation is a subject to criminal
at directors or high level managers, who have
offense", which means that corporation is the authority to act for and on behalf of the
explicitly recognized as a subject to the criminal corporate.
law. The RKUHP 2015 defines corporation as
legal entity or non-legal, which is further On the contrary, if the functional perpetrator
elaborated under Article 189. With this theory is used, imposing liability is not only
definition, corporation also include CV, firma, limited to persons with certain positions, but
and other incorporation. also people who have relationship with the
corporation, members of the board of directors,
The RKUHP 2015 includes the types of crimes
or the any person acting for the corporation.
that can be committed by a corporation. Article
49 of the RKUHP 2015 has the same nuance Conclusion
with the Environmental Law in formulating
criminal offenses committed by a corporation, The various provisions under many laws and
in which a corporation is always considered to regulations regarding corporate liabilityother
committ a crime by the representation of than KUHPhas caused legal uncertainty, due
individuals. However, a question is in place in to the differences of one regulation to
regards to the formulation of "person with another. The RKUHP 2015 may harmonize all
functional position", on whether or not this the provisions, however, the concept adopted
concepts shares the same definition with in the recent draft still has shortcomings, due to
"functional actors" under the Environmental the implementation of identification theory as
Law. the basis for criminal liability. This doctrine
requires action performed by someone with a
The formulation of "functional position" under high position within a corporation to be held
RKUHP 2015 is more focused on the person liable for a crime. In contrast, the
who represents the corporation. Therefore, the Environmental Law implements functional
corporation is not the functional perpetrator in perpetrator doctrine, in which the liablity can
this article. In addition, the formulation of be broaden. Therefore, the doctrine that will be
"..was identified from board faults who have used for the corporate liability provisions must
functional position .." indicates that Article 49 consider that will fit the practical
of the RKUHP 2015 identifies actions and faults implementation.
from a corporation as directing mind (the
identification theory).
About ICLaD
Indonesia Criminal Law Digest (ICLaD) is a new feature from Institute for Criminal Justice Reform (ICJR). ICLaD is presented by
the ICJR as one of the instrument and communication medium to inform the recent development on criminal law and criminal
justice system reforms in Indonesia.