By: Febry Indra Gunawan Sitorus

Preliminary

After the fall of the New Order regime in 1998, the vocabulary of democracy became a conversation that got a place in various discussions. The existence of democracy does not come suddenly. Democracy is a long process through struggle, habituation, learning and practice. Democracy is an important keyword that is synonymous with the struggle for the reform movement launched by reform leaders and students. There is no reform without democracy. On the other hand, there is no democracy without reform.

At first glance to refresh our memory and understanding, that the essence of democracy is a state process that relies on the main role of the people as the highest holder of sovereignty. In other words, democratic government is a government that includes three basic things, namely: government of the people (government of the people), government by the people (government by the people) and government for the people (government for the people). In short, the three things above are implemented through a mechanism whereby a government that is formed becomes legitimate if the government gets the recognition and support of the majority of the people (politics legitimacy) through a democratic mechanism, namely general elections and the government formed is carried out on behalf of the people and is carried out for the benefit of the people.

In the discourse on democracy, it cannot be separated from the supporting elements. The upholding of democracy as an order of state life is very dependent on the existence of the role that is carried out by the elements that support the establishment of democracy itself. There are at least 3 (three) important elements that support the establishment of democracy, including: (1) the rule of law; (2) civil society; and (3) strategic group alliances.

It is interesting for us to explore the elements of the rule of law as a pillar of democracy. In line with the spirit and ideals of reform where it is hoped that there will be a radical improvement in democratic life in Indonesia. These changes are manifested by changes to the 1945 Constitution of the Republic of Indonesia in 4 stages starting from 1999-2002. The idea to fix democratic life in Indonesia began with changes to Article 1 paragraph (2) where there was a shift in the democratic paradigm from the system of sharing of powers by the MPR to the sovereignty of the people with a pattern of division of powers to high state institutions. In addition to fundamental changes to the position, foundation, construction and system of people’s sovereignty, there are also changes to the legal state system, where in the constitution there is an affirmation that Indonesia is a state of law (Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia after the Amendment).

Indonesia as a country that adheres to the concept of a legal state of rechtsstaat with a civil law legal system (continental Europe) certainly cannot be separated from legalistic legal characteristics, although it is not entirely the case, where at the practical level it cannot be separated from the flow of state law, the rule of law. Where in the rechtstaat legal system, legal rules have an important position and role in the legal system. Every legal norm must be stated in legislation to obtain legality and legitimacy to be applied. In Indonesia, the existence of laws and regulations is recognized even in accordance with Hans Kelsen’s tiered legal theory (stufenbau theory) arranged in a hierarchical arrangement (See Article 7 of Law No. 12/2011). Every statutory regulation is issued by an authorized body in accordance with the laws and regulations.

In practice, the implementation of democracy in Indonesia is placed within the legal corridor. This mechanism is also a method adopted by almost all democratic rule of law countries. Where in addition to the application of a democratic system, at the same time applying the principle of nomocracy (nomocracy). A democratic state of law, between democracy and nomocracy if adopted together in a country will give birth to the concept of a state that upholds the sovereignty of the people while not basing the administration of the state on the basis of power (the tastes of the rulers). In short, the implementation of democracy must be carried out based on the existing legal rules.

The public sphere is often enlivened by various massive rejections with the presence of Law No. 11 of 2008 as amended by Law No. 19 of 2016 which regulates Information and Electronic Transactions (UU ITE). The parties who reject the ITE Law, especially Article 27 paragraph (3), are based on the argument that the application of the article has clearly undermined the rights of the people guaranteed in the constitution, especially the right to express opinions. In the current era of industry 4.0, all elements feel the significance of impact and influence. Besides the positive impact, providing convenience for the global community also has a negative impact. One of them is the wave of information flow which is sometimes not balanced with critical power so that it has great potential to cause information bias. More specifically, the negative impacts that arise as well as challenges in the digitalization era are the ease of producing information, both true and false, and the ease of transmitting information without having to verify. In connection with the above, the presence of the ITE Law is the state’s response through legal instruments to maintain community values ​​so that they can be controlled so as not to harm the personal interests of others. Therefore, this short article will try to describe more comprehensively the application of the ITE Law, especially Article 27 paragraph (3) according to the optics of democracy and nomocracy.

Digitalization Era: Democracy, Law and Future Challenges

The digital era has brought various good changes as a positive impact that can be used as well as possible. But at the same time, the digital era also brings many negative impacts, so that it becomes a new challenge in human life in this digital era. Challenges in the digital era have also entered various fields such as politics, economics, socio-culture, defense, security, and information technology itself even in the legal sector. The more sophisticated digital technology today makes big changes to the world, the birth of various kinds of increasingly advanced digital technology has emerged. Various groups have been facilitated in accessing information through many ways, and can enjoy the facilities of digital technology freely and in control.

The current era of globalization has become very dependent on technological advances that can create efficiency with a wide area reach without being hindered by national boundaries. One form of technology that has succeeded in answering these needs is internet technology. Rapid changes in technology towards the advancement of globalization have an impact on almost all aspects of people’s lives. If the use of technology is not regulated properly, then there is a tendency for the use of the technology to become uncontrolled which results in law violations. Just a reminder that French Prime Minister François Fillon once said that the era of globalization is not just an era related to free markets and freedom to enrich their respective countries, but the era of globalization is an era when human rights and democracy are upheld. In a sense, that high respect for human rights and democracy will be realized when the public can understand the balance between the principles of human rights and human obligations.

This is one of the big challenges in seeing law and democracy in the frame of the digitalization era as a problem that must be faced. So far, legal observers and legal actors have only focused on looking at legal challenges in the digitalization era (industrial era 4.0) in the increasingly rapidly growing international and national online business optics. However, it should not be forgotten that one of the important challenges in the legal world related to the digitalization era is the effectiveness of using information media for individual development by minimizing legal risks that may occur. Modern society (modern society) must be able to manage the ease of information with existing limitations, so as not to make the ease of information transmission like a double-edged sword.

Furthermore, it must be understood that the rapid progress that occurs in the world community, including the Indonesian people, needs to be accompanied by a touch of law, so that the existence of a rule of law can be maintained. This means that the support provided by the government in the development of information technology must be followed by legal developments, so that technological advances can be of maximum benefit to society and the state.

Democracy within the framework of the rule of law in the era of digitalization needs to be understood as something that is not absolute. One of the points of contact between democratic values ​​and the era of digitalization is the constitutional rights of freedom of expression. Democracy in the era of digitalization must be followed by a legal response that is able to follow the patterns and developments of society. At this point, it becomes a challenge for the people of Indonesia to balance between legal awareness and democratic awareness.

Another challenge is the need for law enforcement agencies, including the police, prosecutors and judiciary institutions and advocates to prepare themselves and be able to adapt to the dynamics of Indonesian law in facing the development of digitalization. Law enforcement must be able to become a milestone in ensuring the presence of legal justice, legal certainty and legal benefits with legal developments that occur. In short, the legal and democratic challenges that will be faced by Indonesia in the era of digitalization are the ability to effectively use information media for individual development by minimizing legal risks that may occur.

Democracy Awareness v. Legal Awareness

One of the important pillars of the implementation of a good democratic life is a high awareness of democracy. Democracy awareness is the level of people’s awareness of democratic life. This is inseparable from the level of public awareness of the rights and obligations given as a result of the enactment of the democratic system. Awareness of democracy is not only interpreted as the level of public participation as voters in the implementation of general elections, but further how public awareness of all the rights and obligations that are given as a result of the logical consequences of the implementation of the democratic system.

One of the problems which, according to the author, is very basic, so that news reports on the implementation of the ITE Law are often considered as “Rubber Articles” and tend to be victims of apparatus repression is the problem of the imbalance between democratic awareness and legal awareness. On the one hand, many people are very aware of their rights as citizens, there is a guarantee of freedom of expression as outlined in the constitutional text of Article 28E paragraph (3) of the 1945 Constitution of the Republic of Indonesia. In fact, apart from being a democratic country, Indonesia is also a state of law. Where every action, deed and behavior is regulated and guided by the law.

At this point there is often a clash between freedom of expression and the protection of the dignity and rights of others. This is none other than because of the gap between democratic awareness and legal awareness. Even so, the awareness of democracy that has been built so far is not based on a complete understanding of the concept of democracy within the framework of the rule of law.

Besides these problems, more specifically, it can detect waves of framing against a condition that is popularly known as criminalization. The existence of criminalization framing that is always accused of law enforcement officers is one proof that awareness or understanding of public law is urgent to be improved. Whereas the use of criminalization terminology is appropriate if it is intended to explain efforts to formulate a category that was previously not categorized as a criminal act into a criminal act. The gap between democratic awareness and legal awareness of the community must be overcome if you want to break the chain of law violations that occur under the pretext of freedom of expression.

To overcome these problems, one way that needs to be done is to carry out legal socialization, socialization of the rule of law (nomocracy) so that people understand that the right to express opinions is not something absolute in democracy but there are restrictions if it does not comply with the human obligations imposed. These socializations need to be promoted so that the public understands that apart from a democratic state, it also adheres to the principle of nomocracy. It is also necessary to remember that in law there is a general postulate which reads “ignorantia jury non sexcusat” which means that ignorance of the law is not an excuse for forgiveness. Therefore, to avoid people trapped in the paradox of democracy and nomocracy, it is necessary to socialize Indonesia as a state of law (nomocracy).

Article 27 Paragraph (3) of the ITE Law as a Form of the State’s Presence in Responding to the Era of Digitalization Through Legal Instruments.

One of the articles that are often questioned and considered as “rubber articles” in the ITE Law is Article 27 paragraph (3) of the ITE Law. In full, Article a quo reads:

“Every person intentionally and without rights distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents that have insulting and/or defamatory content”

Furthermore, Article 45 paragraph (1) reads that:

“Everyone who fulfills the elements as referred to in Article 27 paragraph (1), paragraph (2), paragraph (3) or paragraph (4) shall be sentenced to a maximum imprisonment of 6 (six) years and/or a maximum fine of Rp. 1,000,000,000.00 (one billion rupiah)”

Indeed, to understand the a quo article, it cannot be separated from the meaning of Article 310 of the Criminal Code and Article 311 of the Criminal Code. This is in accordance with the Decision of the Constitutional Court Number 50/PUU-VI/2008 which explains that the interpretation of the norms contained in Article 27 paragraph (3) of the ITE Law cannot be separated from the criminal law norms contained in Chapter XVI concerning Humiliation contained in Article 310 and 311 of the Criminal Code. From the above formulation, it is clear that the assumption that the norm of Article 27 paragraph (3) of the ITE Law is a norm with multiple interpretations is a wrong view.

The opinion which states that Article 27 paragraph (3) is the rubber article, should also reject Article 310-311 of the Criminal Code. Because Article 27 paragraph (3) is an extension of Article 310-311 of the Criminal Code in order to be able to reach out to insults that occur in the cyber world. On the other hand, according to the author, the presence of the norm of Article 27 paragraph (3) of the ITE Law is a form of state response (law makers) in facing the development of the digitalization era. Where in this era, crime has developed, such as cyber crime, etc. Article 27 paragraph (3) of the ITE Law is a form of state presence in responding to the digitalization era, where with technological developments that occur Article 310 and Article 311 of the Criminal Code are no longer able to reach modifications to criminal acts that occur.

Furthermore, in the author’s opinion, the argument that states that the presence of Article 27 paragraph (3) of the ITE Law has the potential to be used as a tool to reduce the right to express opinions is an argument that is not very well founded. If at the practical level, there is an error on the part of the investigator or the investigator in applying Article 27 paragraph (3) as the first step to determine the suspect, then there are legal remedies that can be taken with the process of proving in court. One or two mistakes do not necessarily give legitimacy to the deletion of an article, even though it is clear that this article is very important in responding to the development of the digitalization era and the crimes that occur in it.

There is no Urgency to Revise the ITE Law

In viewing the ITE Law as a whole, it cannot be separated from how the state’s legal politics in overcoming the development of crimes that occur especially in the era of digitalization. The presence of the ITE Law must be seen as an instrument of the state to maintain order in the cyber world. The rejection of the ITE Law with the assumption that there are many “rubber articles”, reducing the right to express opinions is not appropriate. This refusal is like an insinuation in the midst of the excitement of the development of the digitalization world with all its risks. When looking holistically at the ITE Law, namely Law 11/2008 and Law 19/2016 as the amendments to the Law, we will come to the conclusion that there is no real urgency to revise the ITE Law. The refusal and attempts to discredit a rule of law, which have been echoed so far, are none other than the lack of understanding of the importance of the ITE Law in facing the era of digitalization. The argument that states that the ITE Law has taken many victims and tends to be inconsistent with the wishes of the community for reasons in accordance with the theory of legal progress. So in the author’s opinion, it is also good that we need to look at law not only from a progressive perspective, where law is for humans, not humans for law, but also needs to view the existence of the ITE Law from the perspective of Roscoe Pound’s Legal Theory that law is a social engineering tool (law as a law). tools of social engineering). Where the law is made as a means to change people’s behavior, in accordance with the goals that have been set. So from the description above, the author comes to a conclusion that there is no factual reason to revise the ITE Law.

One of the challenges ahead in the legal world and Indonesia’s democratic climate within the framework of the development of the digitalization era, in addition to the state’s response to adapting national laws, increasing the professionalism of law enforcement is the effectiveness of using information media for individual development by minimizing legal risks that may occur. The main cause of the widespread violations of the ITE Law, especially Article 27 paragraph (1) of the ITE Law is the high gap between democratic awareness compared to legal awareness. In this case, people still tend to be aware of the right to express opinions as a consequence of the democratic system compared to the understanding that besides Indonesia as a democratic country, it is also a state of law (nomocracy) where the law must be a guide and measure for action. The presence of the ITE Law, especially Article 27 paragraph (3) of the ITE Law, is a form of the state’s presence in responding to the development of crime in the digitalization era by holding an adaptive response through legal instruments. So far, there is no need for changes to the ITE Law because the building of the ITE Law and all its articles are still relevant to be used as a tool to maintain order in the cyber world.

As an effort to streamline information media, both online media and social media as instruments that can be used as information distribution media, strict action must be taken for anyone who misuses information media as a tool to injure the rights of others. Encouraging law enforcers to be able to position themselves in the context of law enforcement that is fair, certain and beneficial and still prioritizes professionalism. It is necessary to carry out active and massive socialization regarding Indonesia’s position as a state of law so that the public is aware and not easily trapped in negative insinuations against law enforcement, in addition to the need for socialization of every new legal product so that the public will understand more about the law.

READING MATERIAL

Book

  • Dikdik M. Arief Mansur, Cyber Law : Aspek Hukum Teknologi Informasi, Grafindo, Jakarta, 2015
  • Elizabeth Longworth, “The Possibilities for a Legal Framework for Cyberspace”, GP Publications, Wellington-New Zealand, 1999
  • E.M.Katsh, “Law in a Digital World”, Oxford University Press, Oxford, 1995
  • Josua Sitompul, Cyberspaces Cybercrime Cyberlaw : Tinjauan Aspek Hukum Pidana, Tatanusa, Jakarta, 2016
  • Maskun, Kejahatan Siber (Cyber Crime), Grafindo, Jakarta, 2017
  • Muhammad Rustamani, Pilar-Pilar Hukum Progresif : Menyelami Pemikiran Satjipto Rahardjo, Thafa Media, Yogyakarta, 2017
  • Prakoso Kuspriyatno, “Tindak Pidana Pada Cakram Optik (Optical Disc) Dalam Perspektif Kebijakan Hukum Pidana Di Indonesia”, Tesis Program Pascasarjana Universitas Udayana, Denpasar, 2006
  • Ubaedillah, Pancasila Demokrasi dan Nomokrasi, Prenada Media Group, Jakarta, 2015

Journal

Wawan Setiawan, Era Digital dan Tantangannya, Universitas Pendidikan Indonesia, 2015

Internet

Riana Afifah & Tri Wahono, “Era Globalisasi adalah Era Demokrasi”,             http://internasional.kompas.com/read/2011/07/01/22573843/Era.Globalisasi.adalah.Erademokrasi , diakses tanggal 10 Agustus 2021

Laws and regulations

  • Undang-Undang Dasar Negara Republik Indonesia Tahun 1945
  • Undang-Undang Nomor 11 Tahun 2008 Tentang Informasi dan Transaksi Elektronik
  • Undang-Undang Nomor 19 Tahun 2016 Tentang Perubahan atas Undang-Undang Nomor 11 Tahun 2008 Tentang Informasi dan Transaksi Elektronik