By: Hendra J. Kede
Deputy Chair of the Indonesian Public Information Commission / Coordinator of the Formulating Team for the Amendment of the Information Commission’s Regulation on Public Information Service Standards for the Central Information Commission
The Information Commission Regulation Formulation Team on Public Information Service Standards (Perki SLIP) has completed its task and has submitted the results of the formulation to then enter the political-legal stage for decisions to be made at the plenary session of the Central Information Commission (KI Pusat).
As you have understood, one of the products of reform is Amendment II to the 1945 Constitution of the Republic of Indonesia (UUD NRI), one of which gave birth to Article 28F which is in the Chapter of Human Rights.
In addition to changing the public information management regime in Indonesia, this article also recognizes the right to information as a human right (HAM) and grants the right to information as a constitutional right for all Indonesian citizens (WNI).
The recognition and granting of these two rights is intended so that all Indonesian people can develop themselves and their environment optimally to create physical and mental well-being, including protecting themselves and their families and their assets.
So, in order for this to be realized, then, all channels that will help optimize the fulfillment of the Indonesian Citizens’ Human Rights and Constitutional Rights should be optimized, including and not limited to providing Legal Standing as Information Applicants and Information Dispute Applicants to journalists and advocates.
The press is the fourth pillar of democracy which according to Article 6 letter a of Law Number 40 of 1999 concerning the Press states that the national press plays a role as fulfilling the people’s right to know.
Meanwhile, on the other hand, Law Number 14 of 2008 concerning Public Information Disclosure is intended to guarantee the fulfillment of the rights of Indonesian citizens to information, intended to fulfill the public’s right to know.
Meanwhile, Advocates according to Article 5 paragraph (1) of Law no. 18 of 2003 concerning Advocates states that Advocates have the status of law enforcers, are free and independent who are guaranteed by laws and regulations.
So, thus, the position of an advocate is equal or equal to other law enforcement officers (Police, Attorney, Judge). In this case, they carry out their duties to fight for the legal rights of Indonesian citizens who are facing legal problems.
However, there are differences between law enforcers other than advocates and law enforcement advocates regarding access to information sources in the context of law enforcement and the fulfillment of citizens’ legal rights.
Law enforcers other than advocates have relatively unrestricted access to the sources of information required for law enforcement activities, even confiscation.
Meanwhile, law enforcement advocates do not have as broad a range of access as other law enforcers to sources of information in law enforcement activities to fight for the legal rights of citizens who are having legal problems.
Moving on from the above reality, the author argues that it is necessary to consider giving legal standing to journalists who are working to fulfill the public’s right to know as Information Applicants and Information Dispute Applicants as referred to in Law 14 of 2008 concerning Public Information Disclosure as additional rights besides all rights which has been given and protected by Law Number 40 of 1999 concerning the Press.
The author also believes that an advocate who is a law enforcer needs to be considered to be given legal standing as an Information Applicants and Information Dispute Applicants as referred to in Law Number 14 of 2008 concerning Public Information Disclosure as long as the advocate is carrying out a duty to fight for the legal rights of citizens who are currently entangled in a concrete legal case and limited to information related to his duties in that concrete case to fight for the legal rights of his clients.
So that thus there is equal access to information between law enforcement advocates and other law enforcers in law enforcement in concrete cases and at the same time there is an opportunity for citizens who are facing legal problems to be able to fight for their legal rights through the availability of information needed which may be that information under control of the agency public.
Public Information Management Regime
Before Article 28F of the 1945 Constitution of the Republic of Indonesia was born, the information management regime that was stored in the documents of the State Public Agency was in effect that all such information has basic legal status as confidential information, closed information, unless stated as information that is exempted from closed information after undergoing a series of process and ends with the determination as open information.
Amendment II to the 1945 Constitution of the Republic of Indonesia changes the information management regime into all information stored in the documents of State Public Bodies having basic legal status as open information. Therefore it can be accessed, requested, stored, processed, used and disseminated by all citizens, unless it is stated as information that is exempt from open information after undergoing a series of processes (consequence test) and ending with a determination as excluded (closed) information.
Settings In Raperki SLIP
The question is where will the arrangements for granting legal standing as an Information applicant and Information Dispute applicant to journalists and advocates be regulated?
The author, in his capacity as the Coordinator of the Amendment to the Information Commission Regulation (Perki) Number 1 of 2010 concerning Public Information Service Standards (SLIP), which finally agreed to give birth to a new Perki and has canceled Perki Number 1 of 2010, has suggested that the granting of legal standing as an information applicant and applicants for Information Disputes to journalists and advocates, including the part that is regulated in the Draft Perki SLIP.
The placement in the Perki on SLIP is based on the consideration that after Article 28F of the NRI Constitution, Law 14 of 2008 and Government Regulation Number 61 of 2010, both of which are concerning Public Information Disclosure, then, the next hierarchical arrangement is in the Perki on SLIP. Other perki refers to the SLIP Perki later (for example, the Information Dispute Resolution Checkpoint and so on).
After going through the stages of formulating the Problem Inventory List (DIM), formulating Academic Paper, formulating the norms of the SLIP Raperki by involving the public and related parties and conducting public tests, at the end of December 2020 the Information Commission Regulation Formulation Team on Public Information Service Standards (SLIP) had completed the task of compiling the intended SLIP Raperki and has submitted the results of the formulation of the SLIP Raperki to the Chairman of the Central Information Commission (KI Pusat).
Furthermore, entering the legal political process stage in the form of decision making in the Central KI plenary which is planned today, Thursday, January 14, 2021, at the KI Pusat office, Wisma BSG 9th floor, Jln. Abdul Muis no. 40, Central Jakarta. After that the process of inviting to the Ministry of Law and Human Rights.
One of the materials that will be decided in the plenary session of the Central KI is whether journalists and advocates are approved or not approved by being given legal standing as applicants for information and applicants for information disputes. It may be that the acclamation is approved, however, it seems almost impossible for the acclamation to be disapproved because the author, Insya Allah, will not change his view.
Decisions must indeed be made and cannot be ignored or set aside, either by acclamation or by voting, because the material has been agreed to be included in the original draft Raperki SLIP produced by the Formulating Team and submitted to the Chairperson of the Central KI through an official note from the Deputy Chairperson of the Central KI as the Coordinator of the Formulating Team Raperki SLIP to take decisions at the plenary of the Central KI.
The author remains in the view that journalists need to be given legal standing as applicants for information and applicants for information disputes as part of efforts to optimize the services of human rights and constitutional rights of the public to obtain information in order to develop themselves and their environment.
Aren’t journalists really working to fulfill the people’s right to know under the Press Law? Isn’t it true that not all people can fight for the right to information independently according to the procedural law mechanism for obtaining information?
The author will also continue to argue that advocates need to be given the same legal standing. This is simply so that people whose legal rights are being fought for by advocates can maximally access the information they need to fight for the legal rights of these citizens which are being fought for by the advocates who are empowered to do so.
Advocates only have this legal standing as long as it is being and to fight for legal rights over concrete cases faced by citizens whose advocates have the power to do so. Advocates who are not currently handling concrete cases do not have the legal standing.
From the explanation above, it can be understood that the profession of journalist and advocate is not the basis of the argument for granting legal standing as an Information applicant and Information Dispute applicant to journalists and advocates. It is the interests of citizens that are the core and main basis, namely the interests of citizens to be able to optimally access and obtain information, as well as the interests of citizens who are facing concrete legal cases to be able to fight for their legal rights optimally.
Design Norms
The following is the draft of norms regulating the legal standing of journalists and advocates as Information applicants and Information Dispute applicants in the Raperki SLIP which are included in Chapter V which regulates service standards.
Article 31
(1) Everyone has the right to obtain public information by viewing, knowing and / or obtaining a copy of the public information.
(2) Journalists in carrying out their professional duties to carry out journalistic activities as stipulated in the Press Law, are entitled to obtain public information by seeing, knowing and / or obtaining copies of public information.
(3) In carrying out their professional duties to provide legal services as regulated in the Advocate Law, an Advocate has the right to obtain public information by seeing, knowing and / or obtaining a copy of public information.
(4) Journalists as referred to in paragraph (2) are those who meet the following requirements:
a. work for a press company that has met the qualifications and requirements as stipulated in the Press Law;
b. registered as a member of a press organization as stipulated in the Press Law;
c. has a journalist competency certificate issued by the Press Council; and
d. currently carrying out professional duties: doing journalistic activities.
(5) Advocates as referred to in paragraph (2) are those who meet the following requirements:
a. has taken an oath as an Advocate by the High Court in its area of legal domicile at an open court as stipulated in the Advocate Law;
b. registered as a member of an advocate organization as defined in the Advocate Law;
c. have an Advocate Identification Card issued by an advocate organization; and
d. is carrying out professional duties: assisting and / or representing clients, both inside and outside the court.
(6) Further provisions regarding the procedure for requesting public information from Journalists and Advocates as referred to in paragraph (2) and (3) shall be regulated based on the Decision of the Head of the Central Information Commission.
Closing
In contrast to the Press Law, the granting of legal standing to journalists under the Public Information Disclosure Law requires public bodies to answer journalists’ questions, cannot be answered with “no comment” and journalists can raise objections and even submit a dispute over not providing information. Whether the dispute is submitted to the Information Commission at all levels (mediation and / or non-litigation adjudication) or to the court to appeal to the Supreme Court (Litigation Adjudication).
Likewise with advocates, with this legal standing an advocate can access information controlled by public bodies to fight for the legal rights of citizens that are being fought for, equal access to other law enforcers.
Even if the Central KI plenary does not approve of granting legal standing to journalists and advocates, at least the initial traces of this journey are already there. It’s in DIM, it’s in academic manuscripts, it’s in Raperki and it’s in this paper. So, if in social development and the promotion of a sense of justice that is always alive and well in the midst of society in the future, there is a situation where granting legal standing to journalists and advocates is very helpful for citizens, then the next step can be taken. No need to start over.
Thanks. Hopefully Indonesia will become a major world power through inspirational works of the nation’s children who live in a culture of information disclosure that will soon be fulfilled. Amen.
*) Deputy Chairman of the Indonesian Central Information Commission
