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Adv. Djudju Purwantoro: UU ITE Terus Menjadi Momok Bagi Masyarakat

CORPSNEWS, JAKARTA – Undang-Undang No.11 tahun 2008, sebagaimana diubah dengan UU No.19 tahun 2016 tentang ITE, terus saja memakan korban, dan menjadi momok bagi anggota masyarakat. Aparat hukum masih saja sedemikian represif, yang katanya demi penegakkan hukum dan keadilan bagi pelaku tindak pidana melalui medsos, atau media elektronik.

Contoh kasus, pada Jumat, 13/3/20, seorang mahasiswa (Hisbun Payu) dari Universitas Muhammadiyah, Solo,   disangkakan karena mengkritik pemerintah dan dianggap menghina presiden, dan langsung ditahan.

Dalam kasus itu, lagi-lagi aparat polisi menggunakan pasal ‘pukat harimau, yaitu _Pasal 27 (ayat 3) UU ITE tentang penghinaan dan pencemaran nama baik, serta Pasal 28 (ayat 2) UU ITE_ tentang ujaran kebencian. Pasal-pasal tersebut yang biasa juga disebut ‘pasal karet’, secara subyektif sering sekali digunakan oleh aparat kepolisian menetapkan seseorang sebagai tersangka tinda pidana UU ITE.  

Klausul pasal yang disebut _”penghinaan”, “pencemaran nama baik”, ataupun “menimbulkan rasa kebencian atau permusuhan” secara sepihak mudah ditafsirkan (multi tafsir) oleh aparat penegak hukum.

 

Akibat kritikannya melalui medsos, antara lain ;    _”kebijakan Presiden Jokowi yang lebih mementingkan investasi dibandingkan kondisi rakyatnya_,”_ Mahasiswa tersebut akhirnya ditahan oleh Polda Jateng. Semestinya aparat hukum juga mempertimbangkan bahwa apa yang diungkapkan (ujaran) tersebut adalah merupakan ‘kritik konstruktif’ kepada pemerintah dalam menangani kondisi ekonomi yang semakin terpuruk melanda negeri ini. Kita juga masih temukan contoh kasus pidana UU ITE baru-baru ini yang membuat heboh, yaitu tentang kedatangan para TKA dari China di Sultra. Polisi sempat menangkap dan memeriksa pelaku pengunggah video tersebut. Karena demikian derasnya kritikan penangkapan tersebut, akhirnya si pelaku dibebaskan.

 

Perihal kritikan kepada Presiden, berdasarkan *Keputusan Mahkamah Konstitusi No. 013-022/PUU-IV/2006*, memutuskan pejabat yang dihina harus melaporkan sendiri ke polisi. Ia tidak bisa memberikan kuasa kepada orang lain. Atau orang lain mengaku mewakili pejabat itu.

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Kasus tersebut adalah *Delik Aduan*, jadi semestinya Presiden Jokowi sendirilah yang membuat pengaduan ke polisi, jika memang merasa dirugikan.

 

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 Pasal 27 ayat (3) UU ITE :

 

_”Setiap orang dengan sengaja dan tanpa hak mendistribusikan dan/atau mentransmisikan dan/atau membuat dapat diaksesnya Informasi Elektronik dan/atau Dokumen Elektronik yang memiliki muatan penghinaan dan/atau pencemaran nama baik.”_

 

Padahal, secara historis ketentuan _Pasal 27 ayat (3) UU ITE,_ mengacu pada ketentuan penghinaan atau pencemaran nama baik yang diatur dalam _Pasal 310 dan Pasal 311 KUHP_. Dalam KUHP diatur dengan tegas bahwa penghinaan merupakan “delik aduan”.

 

Pasal 28 ayat (2) UU ITE ;

 

_”Setiap Orang dengan sengaja dan tanpa hak menyebarkan informasi yang ditujukan untuk menimbulkan rasa kebencian atau permusuhan individu dan/atau kelompok masyarakat tertentu berdasarkan atas suku, agama, ras, dan antargolongan (SARA).”_

 

Teknologi telah memudahkan untuk mengadukan suatu penghinaan yang dialaminya. Jadi tidak relevan argumentasi bahwa korban penghinaan kesulitan melakukan pengaduan dan/atau pelaporan sendiri atas penghinaan yang dialaminya.

 

Pasal 28 ayat (2) UU ITE :

 

_”Setiap Orang dengan sengaja dan tanpa hak menyebarkan informasi yang ditujukan untuk menimbulkan rasa kebencian atau permusuhan individu dan/atau kelompok masyarakat tertentu berdasarkan atas suku, agama, ras, dan antargolongan (SARA).”

 

Jakarta, 20/3/2020.
Penulis: Adv. Djudju Purwantoro.
Sekjend IKAMI (Ikatan Advokat Muslim Indonesia)

 

 

CORPSNEWS – SOPHIE SUPRIATIN

Terbitkan Pada: 20 Maret 2020 by Corps News

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