Constitutional Court Deemed Wiretapping Illegal

Posted on Feb 26, 2011

The Indonesian Constitutional Court (MK) has decided that the article 31 paragraph 4 of the Information and Electronic Transactions (ITE) Act has no binding legal force. The specific clause allows provision of wiretaps through government regulation.

The said article reads “further provisions on procedures for interception (wiretapping) referred to in paragraph 3 are regulated further by Government Regulation”

Wiretapping is incompaticle with human rights

“(The court) Grant the petition of the applicant for all. It is decided that the Article 31 paragraph 4 of the ITE Act is in contrary to the 1945 Constitution,” said the Court Chairman Mahfud MD, in the verdict on Thursday.

The Court has assessed the provisions of the said article that allows the Government to intercept or wiretaps through further government regulation have the potential to harm the constitutional rights of citizens in general. Mahfud in his opinion was agreed by six other constitutional court judges.

The petition to challenge the provision was filed by the Human Rights Division of the Indonesia Legal Aid Association (PBHI) and Institute of Democracy and Human Rights on the ground that the regulation is incompatible with the protection of human rights of the applicants.

“Government regulations should not set restrictions on human rights,” opine Constitution Judge Ahmad Sumadi.

He says that the government regulation is only for administrative arrangement and does not have the authority to accommodate the limitations of human rights.

The Court also said that the referred regulation that regulates wiretapping does not exist yet, so that said article delegate to something that has not been set.

Anggara from PHBI and Supriyadi Widodo Eddyono says that the verdict is appropriate and very reasonable.

Petitioners considers wiretapping by law enforcement or official state institutions remains controversial because it is an invasive practice of the privacy rights of its citizens which include privacy of personal life, family, and correspondence.

In addition, the applicant also believes that wiretapping as a means of prevention and detection of crime also has a dangerous tendency for human rights, as the arrangement is open to abuse due to weakness of thie arrangement.