Assessing Insufficient Legal Readiness: Extent of the Impropriety of the Draft Cybersecurity and Cyber Resilience Law’s (RUU KKS) Creation
Mon, 06 Jan 2020 || By Andja Karunia

Introduction

            In the creation of policies, before practical guidelines can give way for direct application, a part of the establishing pillar is the legal basis of it. However, before these laws can take place, drafts must be presented. One of Indonesia’s experience on this method is the Draft of the Cybersecurity and Cyber Resilience Law. The Draft made its way to the public on the 16th of September 2019 through the announced special committee meeting on the issue.[1] With the rumor that it was to be officialized on the 30th of September, this naturally provoked concerns, most notably from Damar Juniarto, an observer from SAFEnet.

Damar states several flaws, such as the lack of proper duration given for consultation on the draft, the lack of inclusivity with related stakeholders, and the deprivation of citizens’ rights.[2] After the finalization stage was terminated due to the absence of stakeholders from related ministries,[3] the Ministry of Communication and Information (Kemenkominfo) announced that it is interested in restarting a process of legislation for a similarly themed draft, marking a potential for a better legal solution if a proper reflection and revision has adhered.

 

Dangerous Detriments on the

First Draft, with a total time of 5 days between the first instance of the proposal and finalized draft formulation, this indeed poses several questions.[4] As SAFEnet’s Damar Juniarto has pointed out, this is troublesome since the short amount of time provides no room for discussion with related stakeholders. Experts can be argued to be fortunate since the draft has been canceled since then. With a planned restart of a discussion for similar draft legislation from the Ministry of Communication and Information Technology,[5] this can be a chance to finally create a more proper piece of legislation with more stakeholders. A recourse that ELSAM has recommended.[6]

Second, the Draft reduces proper involvement in the legislative process from related stakeholders, especially non-government parties. The Draft was made while the nation-wide riots on various other draft legislations took place.[7] During the course of 5 days since its initial inception in the legislative process up until the creation of the draft, there has been no formal meeting to speak on the draft with related experts. Namely the lack of discussion with the Indonesian Chamber of Commerce and Industry (KADIN), the cybersecurity industry, and university academicians.[8]

Third, the draft is not in the interest of the people. Damar Juniarto from SAFEnet has observed that it goes against not only rights prescribed by Indonesian national law, but also guidelines prescribed by the UN.[9] The major theme that Damar has voiced against on the matter of the Draft was the immense power that the Draft potentially can give to the Indonesian State Cyber and Crypto Agency (BSSN). Powers such as internet traffic surveillance, internet censorship, cutting internet access, and mandatory certification from BSSN are vested unto the Agency if the Draft passed. Too much surveillance might give constraints for citizens' activity on the web. Internet censorship might make BSSN overlap with other institutions, such as the Ministry of Communication and Information. Meanwhile, the cutting of internet access may hamper freedom of expression on the internet. Too many regulations also might spell the slowing down of the proliferation of start-ups in Indonesia.

Fourth, the proposal for a renewed draft seems to lose momentum. Even though there is an appetite from the Ministry of Communication and Information for another round of discussion on a similar law, other state institutions seem not to echo the same sentiment. If the cancellation is not followed through with corresponding legal drafting as signaled by the Ministry of Information and Communication, cybersecurity-related matters in the scope of the law might be on limbo for some more time.

 

Conclusion

LSI have pointed out how the trust of citizens toward state institutions have been especially lowest to lawmakers (DPR) and political parties.[10] As mentioned in previous paragraphs regarding the rush and lack of inclusivity of the draft, this might endanger the overall review and trust of state institutions. If we extrapolate the discussion toward the proper employment of democracy within the competitive elitist model, we can see how the function of politicians is undermined by the process mentioned above in RUU KKS. They lack in their supposed representative and deliberative capacity on citizens’ interest.[11]With the idea from Kemenkominfo that they are keen on starting another discussion on having a new and improved draft, legislators and state officials might have a chance at redeeming themselves. Especially after the nation-wide riots all over Indonesia, which can also be a sign of little confidence from the people,[12] much-needed proper legislation might be what the lawmakers need to get the people’s trust back.


Author: Andja Karunia 
Editor: Amelinda Pandu Kusumaningtyas

Read more article written by Andja Karunia

 

[1] CNN Indonesia. (2019). RUU KKS: Dirancang Diam-diam, Dibahas Kilat 5 Hari. CNN Indonesia. [online]. Available at: https://www.cnnindonesia.com/teknologi/20190926093935-185-434166/ruu-kks-dirancang-diam-diam-dibahas-kilat-5-hari. [Accessed 24 Nov. 2019].

[2] CNN Indonesia. (2019). 7 Masalah RUU KKS yang Akan Disahkan DPR. CNN Indonesia. [online]. Available at: https://www.cnnindonesia.com/teknologi/20190926152946-185-434335/7-masalah-ruu-kks-yang-akan-disahkan-dpr. [Accessed 26 Nov. 2019].

[3] CNBC Indonesia. Para Menteri Absen, Rapat Pansus RUU Siber Batal. CNBC Indonesia. [online]. Available at: https://www.cnbcindonesia.com/news/20190927160415-4-102745/para-menteri-absen-rapat-pansus-ruu-siber-batal.  [Accessed 27 Nov. 2019].

[4] CNN Indonesia. (2019). RUU KKS: Dirancang Diam-diam, Dibahas Kilat 5 Hari. CNN Indonesia. [online]. Available at: https://www.cnnindonesia.com/teknologi/20190926093935-185-434166/ruu-kks-dirancang-diam-diam-dibahas-kilat-5-hari. [Accessed 24 Nov. 2019].

[5] CNN Indonesia. (2019). Kominfo Upaya Susun Ulang Draf Aturan KKS Dengan Konsep Baru. CNN Indonesia. [online]. Available at: https://www.cnnindonesia.com/teknologi/20191009181715-185-438158/kominfo-upaya-susun-ulang-draf-aturan-kks-dengan-konsep-baru. [Accessed 29 Nov. 2019].

[6] CNN Indonesia. (2019). Pembahasan RUU KKS Diharap Libatkan Korporasi dan Akademisi. CNN Indonesia. [online]. Available at: https://www.cnnindonesia.com/teknologi/20191010142346-185-438412/pembahasan-ruu-kks-diharap-libatkan-korporasi-dan-akademisi. [Accessed 27 Nov. 2019].

[7] Ibid.

[8] CNN Indonesia. (2019). 7 Masalah RUU KKS yang Akan Disahkan DPR. CNN Indonesia. [online]. Available at: https://www.cnnindonesia.com/teknologi/20190926152946-185-434335/7-masalah-ruu-kks-yang-akan-disahkan-dpr. [Accessed 26 Nov. 2019].

[9] Juniarto, D. (2019). RUU KKS Diajukan Secara Diam-diam, Lalu Dibahas Super Kilat Oleh DPR. Mojok.co. [online]. Available at: https://mojok.co/terminal/ruu-kks-diajukan-secara-diam-diam-lalu-dibahas-super-kilat-oleh-dpr/. [Accessed the 24th of November 2019].

[10] Ramadhan, F. (2019). Survei LSI: KPK Paling Dipercaya Rakyat, Parpol Terendah. katadata.co.id. [online]. Available at: https://katadata.co.id/berita/2019/08/29/survei-lsi-kpk-paling-dipercaya-rakyat-parpol-terendah. [Accessed the 24th of November 2019].

[11] See Competitive Elitist Democracy in Models on Democracy by Held, D. (2006). Cambridge: Polity, pp. 134-137.

[12] Demokrasi Dikorupsi proves to be one of the significant civil demonstrations that occurred in Indonesia during 2019, for more information regarding the demands and scope, see for example tirto.id. (2019). Reformasi Dikorupsi: Bentrok Polisi dan Demonstran di DPR. tirto.id. [online]. Available at: https://tirto.id/reformasi-dikorupsi-bentrok-polisi-dan-demonstran-di-dpr-eiJX. [Accessed the 29th of November 2019).