Legal Argument ALSA LC UNUD Volume 03 No. 1

Volume 03 No. 1

ALSA LC UNUD LEGAL

RACISM AGAINST PAPUA: FROM SHOUTING MONKEY UNTIL RESTRICT THE FREEDOM OF SPEECH

ALSA

English Development Division

LC UNUD LEGAL ARGUMENT

Author : I Komang Dananjaya Universitas Udayana

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ALSA LC UNUD LEGAL ARGUMENT RACISM AGAINST PAPUA: FROM SHOUTING MONKEY UNTIL RESTRICT THE FREEDOM OF SPEECH I Komang Dananjaya Universitas Udayana

I.

FACTS In August 2019, there were several Papuan students facing discrimination

done by nationalist organizations. The action sparked due to the Indonesian flag that fell upon the drainage around the Papuan students’ dormitory in Surabaya.

People who claimed themselves nationalists start gathering around the dorm. They mocked Papuans by calling “Monkey, Dog, Papuan Bastard”. Aside from that, the protesters also threw teargas to the dorm, resulted in many people were in a dangerous situation. As the problem widespread on the internet, the Indonesian police officers investigated the one who shares videos related to the racism act.

However, the police officers did not protect the Papuan students’ despite facing a difficult circumstance. In addition, the Ministry of Communication and Informatics

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blocked the internet to decrease the number of hoaxes that circulated in cyberspace.

II.

ISSUES Having established the fact, two issues will be discussed in this argument.

1. Is the government’s internet restriction justifiable?

2. In the context of handling racism case, is that productive?

III.

RULES

For the convincing purpose, here are the rules that the argument based on: 1. Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 2. International Covenant on Civil and Political Right 3. Undang-Undang Nomor 12 Tahun 2005 tentang Pengesahan International Covenant on Civil and Political Rights (Kovenan Internasional Tentang Hak-Hak Sipil dan Politik) 4. Undang-Undang Nomor 40 Tahun 2008 tentang Penghapusan Diskriminasi Ras dan Etnis 5. Undang-undang Nomor 19 Tahun 2016 tentang perubahan atas UU Nomor 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik (ITE). 1 6. Peraturan Pemerintah Pengganti Undang-Undang No. 23 Tahun 1959 tentang Keadaan Bahaya.

IV. ANALYSIS In accordance with Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (“UUD NRI 1945”) Article 1 Section (3), Indonesia is a legal state (rechtsstaat). A legal state, according to Friedrich Julius Stahl,1 has to fulfill the basic human rights, 1 since the fulfillment of basic human rights is one of the elements that a legal state must own.

Speaking of basic human rights, the right to protection from discrimination is one of the important issues that Indonesia should pay attention to since many racist acts happened.

Moreover, several laws ensure this right, namely: UUD NRI 1945 Article 28B Section (2) and Article 3 Section (3) of Undang-Undang No. 39 Year 1999 (The law concerning human rights). Furthermore, people who commit to racists acts can be punished according to Undang-Undang No. 40 Year 2008 (the law concerning the elimination of racial and ethnic discrimination). Therefore, as the legal state, Indonesia has to comply with the right of being protected from any kind of discrimination.

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Prihandono, T. A. Kusriyah, S. K., & Widayati, W. (2018). Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia. Jurnal Daulat Hukum, 1(4), page. 1003

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Racism cases in Indonesia mainly targeted Papuans since they are the minority. For instance, in the case of Papuan students were mocked by nationalists organizations. However, in handling this case, the government took a controversial action, that is blocking the internet in Papua. It is considered controversial because of two reasons. First, it restricts freedom of speech. Society nowadays inevitably has various channels to address their opinion, one of them is through the internet (e,g social media). Internet restriction affected the process of channeling their opinion. Second, it hampers people from gaining information related to the issue.

Racism issue is undoubtedly a crucial issue. All Indonesian, especially Papuans (as the victim) need to know the progress of the case for transparency purposes.

However, the internet as one of the most up to date sources to gain information

restricted instead.

From the law perspective, an internet restriction is a form of violation to human rights. In Article 28E Section (3) UUD NRI 1945, it is stated that “Setiap orang berhak atas kebebasan berserikat, berkumpul dan mengeluarkan pendapat” which means the freedom of addressing opinion should be guaranteed. Moreover, the freedom of gaining information is also guaranteed under Article 28F UUD NRI 1945 which stated that “Setiap orang berhak untuk berkomunikasi dan memperoleh informasi untuk mengembangkan pribadi dan lingkungan sosialnya, serta berhak untuk mencari, memperoleh, menyampaikan informasi dengan menggunakan segala jenis saluran yang tersedia”.

According to CNN Indonesia,2 even though the government understood the Feri

2

Agus

Setyawan,

“Jokowi

Sebut

Blokir

Internet

di

Papua

untuk

Kebaikan

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human rights issue, they still restrict the internet to stop the spread of hoaxes, manipulative, and provocative content in social media. The basis for the action is Article 28J Section (2) UUD NRI 1945, which stated that there’s a limitation of human rights. Subsequently, Rudiantara (the minister of communication and informatics at that time) 3stated that the action is also in accordance with Article 40 Section (2a) 3 Undang-Undang No. 19 Tahun 2016 concerning about the change of Undang-Undang No. 11 Tahun 2008 related to Information and Electronic Transaction that says “Pemerintah wajib melakukan pencegahan penyebarluasan dan penggunaan Informasi Elektronik dan/atau Dokumen Elektronik yang memiliki muatan yang dilarang sesuai dengan ketentuan peraturan perundang-undangan.” which means that the government has the authority to prevent the spread of prohibited content under the statute.

Several responses to the government’s reason for restricting the internet.

First, the circumstance did not exceed the criteria for being able to limit human rights. International Covenant on Civil and Political Right (ICCPR) that has been ratified by Indonesia through Undang-Undang No. 12 Year 2005 has established the provision on limiting human rights. Article 4 of ICCPR stated that “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” In the context of Indonesia, there are two types of emergency state according to Peraturan Pemerintah Pengganti Undang-Undang No. 23 Year 1959 (The law concerning emergency state), namely: civil emergency (keadaan darurat sipil) and martial law (keadaan darurat militer). Based on Article 12 UUD NRI 1945, every time the nation faces an emergency state, the president shall officially announce it. Furthermore, in accordance with article 22 section (1) UUD NRI 1945, the president has the right to establish Peraturan Pemerintah Pengganti UndangUndang (PERPU) or government regulation as the substitute of the statute. In the case of racism against Papuan students, the circumstance was not a civil emergency nor martial law, given the fact that the president did not announce officially and neither establish PERPU. Therefore, the restriction should have not been done.

Bersama”https://www.cnnindonesia.com/nasional/20190822182250-20-423886/jokowi-sebutblokir-internet-di-pap ua-untuk-kebaikan-bersama, accessed on August 6th, 2020.

3 Dylan Aprialdo Rachman, “Dasar Hukum Kominfo soal Pembatasan Internet di Papua Dinilai Lemah”, https://nasional.kompas.com/read/2019/08/25/10123501/dasar-hukum-kominfo-soalpembatasan-internetdi-papua-dinilai-lemah?page=1, accessed on August 6th, 2020.

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Second, the Article 40 Section (2a) Undang-Undang No. 19 Tahun 2016 concerning about the change of Undang-Undang No. 11 Tahun 2008 related to Information and Electronic Transaction that the government based on, should rely on article 12 UUD NRI 1945. According to Damar, 4the director executive of Southeast 4 Asia Freedom of Expression Network (SAFE Net), if the government found the circumstance as an emergency state, following Article 12 UUD NRI 1945, the one who is capable to announce it is the President, not the ministry of communication and informatics. Furthermore, if the government’s goal was only to stop the spread of prohibited content, then the restriction should have been merely done to the target, not the entire internet.

According to a law principle “Lex Rejicit Superflua, Pugnantia, Incongura”, the law rejects superfluous, contradictory, and incongruous things. Internet restriction, in this case, can be considered as a thing that the law should reject.

Moreover, the action should be deemed as the violation of human rights, which a legal state should have not done. Therefore, internet restriction is unjustifiable.

Aside from the measurement of justification, it is also important to measure the productiveness of internet restriction in handling the case. The government’s goal by internet restriction was to reduce the number of fake news and provocative contents that widespread on the internet because if not, it will spark more conflicts.

Therefore, the government will focus on handling the racism case. The internet restriction, however, did not necessarily reduce the number of hoaxes. Even though the internet was restricted, Short Message Service (SMS) was still available. It worsens the situation because it lead the society to gain uncertain information and without internet access, they could not clarify it. Moreover, instead of minimalizing conflicts, internet restriction leads to public anger rise higher. According to CNN Indonesia,5 there was a protest done by SAFE Net and 17 other organizations in 5 front of the ministry of communication and informatics’ building. They wanted the ministry to reopen internet access.

Based on the facts above, the premises of internet restriction could reduce the number of hoaxes, and minimalize conflicts are not valid. By restricting the internet, it was a lot harder to clarify misleading things and the government could not focus on handling the racism case due to the public anger rise higher. Therefore, internet restriction is not productive in handling the case.

The government should have let the internet accessible instead. By not

4

Loc. cit Safir Makki, “Masyarakat Gelar Demo Minta Kominfo Buka Akses Internet Papua” https://www.cnnindonesia.com/teknologi/20190823111912-192-424033/masyarakat-gelardemo-minta-k ominfo-buka-akses-internet-papua, accessed on August 6th, 2020.

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restricting the internet, it would have been much easier to clarify fake news and the public anger would not rise higher. Moreover, the government will not violate the human rights that every Indonesians deserve.

V.

CONCLUSION From all the explanation above, it can be concluded that: 1. The restriction of the internet done by the government is unjustifiable.

2. The restriction of the internet done by the government is counterproductive in handling racism case.

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REFERENCES ● Prihandono, T. A.Kusriyah, S. K., & Widayati, W. (2018). Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia. Jurnal Daulat Hukum, 1(4), 1003-1012. ● Feri Agus Setyawan, “Jokowi Sebut Blokir Internet di

Papua

untuk

Kebaikan

Bersama”,https://www.cnnindonesia.com/nasional/2 0190822182250-20-423886

/jokowi-sebut-blokir-

internet-di-papua-untuk-kebaikan-bersama, accessed on August 6th, 2020. ● Dylan Aprialdo Rachman, “Dasar Hukum Kominfo soal Pembatasan Internet di Papua Dinilai Lemah”, https://nasional.kompas.com/read/2019/08/25/10123 501/dasar-hukum-kominfosoal-pembatasaninternet-di-papua-dinilai-lemah?page=1, accessed on August 6th, 2020. ● Safir Makki, “Masyarakat Gelar Demo Minta Kominfo

Buka

Akses

Internet

Papua”,https://www.cnnindonesia.com/teknologi/20 190823111912-192-424033/

masyarakat-gelar-

demo-minta-kominfo-buka-akses-internet-papua, accessed on August 6th, 2020.