Timur Abimanyu, SH.

MH

Against Violation of Law perspective No. 11 Year 2008 on Information and Electronic Transaction What Not to Have Government Regulation might entrap of Criminal Sanctions and analysis

TABLE OF CONTENTS

Chapter I

: Introduction

Chapter II : Crime Information and Electronic Transaction A. Scope and Definition. 1. Understanding Crime Information and Electronic Transactions. 2. Assured Answer Criminal Information And Electronic Transactions. 3. Basic Law. 4. Problem formulation. B. According to Law No. Policy. 11 Year 2008 And Opinions Of Draft Regulation of the Law No. 11 of 2008. C. Case Example Chapter III : Policy Implementation Law. 11 Year 2008 And Public Opinion Against Draft Government Regulation of Law No.. 11 of 2008. A. Implementation of the Internal Policy. B. Implementation of the External Policy. Chapter IV : Conclusion - Conclusion - Suggestions

Preface
Violation Information and electronic Tranasksi according to Law no. 11 Year 2008 is one of the discourses that arise with advances in technology activities as well as in national development efforts is an ongoing process that must constantly respond to the various dynamics that occur in society. In the era of globalization of information has placed Indonesia as part of the world information society that requires the establishment of arrangements for the management of Information and Electronic Transaction at the national level so that the development of Information Technology can be performed optimally, evenly, and spread to all walks of life to the intellectual life of the nation. In the development and advancement of Information Technology has led to such rapid changes in the activities of human life in various fields which directly influenced the birth of the forms of new legal acts, as well as utilization of Information Technology plays an important role in trade and national economic growth for the welfare of society.Adjustments should be made through the Information Technology infrastructure that the law is done safely to prevent abuse by taking into account the values of religion and social culture, Indonesia In this case, in criminal cases who have been indicted Prita Mulyasari as perpetrators of violations of the Law no. 11 Year 2008 on the ITE. Actually this law to protect the public or to entrap people delama domains or jurisdiction, if this happens it can be categorized as a violation of Human Rights and classified as hostage (Gezeling). That must be considered carefully is in which position there as a consumer Mulyasari Pritchard (weak people) to be protected by the Act and the policies this government has bertetangan 1945 Constitution Article 28C Paragraph 1 and Paragraph 2 and Article 28D paragraph 1 and paragraph 2. Impressed that the Law No.. 11 Year 2008 on the ITE has set aside the 1945 Constitution, especially the chapters 28C and 28D. The problem is if rumuan Law No. 11 Year 2008 on Information and Electronic Transaction not yet have government regulation as mentioned in the closing provisions of article 54 paragraph 2 of the law, whether criminal provisions can be applied ? On the basis of such consideration, the author chose the title of the paper "perspective Against Violation of Law No. 11 Year 2008 on ITE What Not to Have Government Regulation And Criminal Sanctions might entrap analysis "in order to detect the extent to which legislation ITE can contribute to society and the state law of Indonesia. By Timur Abimanyu, SH.MH.

CHAPTER I Violation Information and Electronic Transaction A. Scope and Definition. 1. Understanding Crime Information and Electronic Transaction - Electronic information is one or a set of electronic data, including but not limited to text, sound, images, maps, designs, photographs, electronic data interchange (EDI), electronic mail (electronic mail), telegram, telex, telecopy or the like, the letter , marks, numbers, access codes, symbols or perforations that have been processed that have meaning or be understood by people who are able to understand. - Electronic Transactions is a legal act performed by using a computer, computer network, and / or other electronic media. - Information technology is a technique for collecting, preparing, storing, processing, announcing, analyze, and / or disseminate information. - Electronic Document means any electronic information created, transmitted, sent, received, or stored in the form of analog, digital, electromagnetic, optical, or the like, which can be viewed, displayed, and / or heard through the Computer or Electronic Systems, including but not limited to text, sound, images, maps, designs, photographs or the like, letters, signs, numbers, access codes, symbols or perforations having meaning or significance or can be understood by people who are able to understand. - Electronic Systems is a series of electronic devices and procedures that serve to prepare, collect, process, analyze, store, display, publish, transmit, and / or spread of Electronic Information. - Operation of Electronic Systems Electronic Systems is the use by state officials, People, Business Entities, and / or community. - Network Electronic Systems Electronic Systems is interlinked two or more, which is closed or open. - Agent Electronics is the device of an Electronic System which is made to perform an action on a particular electronic information is automatically organized by People.

- Electronic Certificate is a certificate that contains the electronic nature Electronic Signature and the identity that shows the status of legal subjects of the parties in the Electronic Transactions issued by the Operator Certification Electronics. - Electronic Operator Certification is a legal entity that serves as a trustworthy party, which provides and audit the Electronic Certificate. - Reliability Certification Institute is an independent agency established by a recognized professional, authorized and supervised by the Government with the authority to audit and issue a certificate of reliability in Electronic Transactions. - Electronic Signature is a signature consisting of electronic information that is attached to, associated or related to other electronic information that is used as a means of verification and authentication. - Markers Hand is the subject of legal terasosiasikan or related to Electronic Signature. - The computer is a tool for electronic data processing, magnetic, optical, or systems that perform logic functions, arithmetic, and storage. - Access the activity to interact with the Electronic System stand-alone or in the network. - Access Code is a number, letter, symbol, other characters or combinations of them, which is the key to be able to access the computer and / or other Electronic Systems. - Electronic Contract is an agreement of the parties created through the Electronic System. - The sender is the subject of law that transmit electronic information and / or Electronic Documents. - The recipient is a legal subjects receiving electronic information and / or Electronic Documents of the sender. - Domain name is the internet address of the organizer country, people, business entities, and / or community, which can be used in communicating over the Internet, in the form of code or arrangement of characters that are unique to show a specific location on the Internet. - A person is an individual, a good citizen of Indonesia, foreign nationals, or legal entity. - Enterprises is a proprietorship or partnership firms, whether incorporated or not incorporated. - Government is the Minister or other officials designated by the President. 2. Assured Answer Criminal Information And Electronic Transactions.

In terms of accountability to the Book of Law Criminal Law Indonesia pins arrangement,

however, regulated by Law No. terendiri. 11 Year 2008 on Information and Electronic Transasksi. In chapter VIII: Settlement of Disputes, in particular on Article 38 of subsection (1) Any person may file a lawsuit against the party that organizes the Electronic Systems and / or using information technology to incur losses and (2) The public can file a lawsuit as representatives of the parties conducting Electronic Systems and / or use of Information Technology resulting in adverse public, in accordance with the provisions of legislation. In terms of law enforcement devices regulated in Chapter X: Special Investigator on Article 42 of the investigations on criminal acts as referred to in this Act, made pursuant to the provisions in the Criminal Procedure Code and the provisions in this legislation. And in Article 43 of the paragraph : (1) In addition to investigating officers at the Police of the Republic of Indonesia, certain Civil Servants within the Government that the scope of duties and responsibilities in the field of Information Technology and Electronic Transactions granted special authority as investigators as referred to in the Law on Criminal Proceedings, to conduct an investigation criminal acts in the field of Information Technology and Electronic Transactions. (2) Investigations in the field of Information Technology and Electronic Transactions referred to in paragraph (1) conducted with due regard to protection of privacy, confidentiality, the smoothness of the public service, data integrity, or the integrity of data in accordance with the provisions of legislation. (3) A search and / or seizure of electronic systems related to the alleged criminal act must be done with permission from the local chairman of the district court. (4) In conducting the search and / or seizure referred to in paragraph (3), the investigator must keep the interests of maintaining public services. (5) Civil Servant Investigators as referred to in paragraph (1) authorized: a. receive reports or complaints from individuals concerning a criminal act under the provisions of this Act. b. summon any person or any other party to be heard and / or examined as a suspect or witness in connection with the alleged criminal acts in areas related to the provisions of this Act. c. verify a report or information relating to criminal offenses pursuant to the provisions of this Act.

d. investigate a person and / or business entities that should be suspected of committing a crime under this Act. e. conduct an examination of the tool and / or facilities related to information technology allegedly used to commit criminal acts under this Act. f. do a search on a particular place allegedly used as a place to commit criminal acts under the provisions of this legislation. g. do the sealing and seizure of equipment or facilities and Information Technology activities Legislation. h. request expert of assistance criminal is required conduct in the investigation under of the crime Act under this Act; and / or i. termination investigations is in accordance with the provisions of criminal procedure applicable. (6) In the event of arrest and detention, the investigator through the public prosecutor shall request the establishment of local chairman of the district court within one time twenty-four hours. (7) Civil Servant Investigators as referred to in paragraph (1) coordinate with the investigating officers at the Police of the Republic of Indonesia informed the commencement of the investigation and communicate the results to the public prosecutor. (8) In order to reveal the crime of Electronic Information and Electronic Transaction, investigators can work together with investigators of other countries to share information and evidence. Verification arrangements provided for in Article 44 of the Evidence of investigation, prosecution and examination in court under the provisions of this Act are as follows: a. evidence referred to in the provisions of legislation; and b. other pieces of evidence in the form of electronic information and / or Electronic Documents referred to in Article 1 number 1 and number 4 and Article 5 paragraph (1), subsection (2), and paragraph (3). Basic Law is Article 5 paragraph (1) and Article 20 of the Constitution of the Republic of Indonesia Year 1945; Problem formulation: that allegedly used deviate from the provisions

- Is the Law No. 11 Year 2008 on Information and Electronic Transactions that do not have government regulation as mentioned in the closing provisions of article 54 paragraph 2 of the law, can apply the penal provisions as in the implementation of investigation and punishment until the imposition of sanctions ? 3. According to Law No. Policy. 11 Year 2008 And Opinions Of Draft Regulation of the Law no. 11 of 2008. Both the basic policies and policy enforcement of Law no. 11 Year 2008 on the ITE, is clearly contrary to the legal basis to use the 1945 Article 5 paragraph (1) and Article 20, but the legal basis of Law no. 11 In 2008 it was contrary to Article 28C of the 1945 Constitution and article 28 D. Similarly, in terms of the investigation provided for in Chapter X: Investigators, in particular Article 42 has not efekif can be run in the implementation carried out by the police and prosecutorial dikarena Government Regulations provided for in Article 54 paragraph (2) the Government should set a maximum 2 (two) years after enactment of the Act. However, until now still a draft Regulation of Governments, whether this is a wrong policy and violates the order of legislation, because the state of Indonesia adopted the Civil Law legal system. Viewing Case Mulyasari Pritchard Vs RS.Omni International. Viewing of civil cases Pritchard, in which the defendant defamation case against Omni International Pritchard Vs Mulyasari, the judge Supreme Court (MA) received an appeal filed while rejecting an appeal Prita Omni stronghold. This ruling makes mother of two children free of lawsuits and damages of Rp 20 billion proposed Omni. "Omni lawsuit against Pritchard on appeal was rejected. If the District Court and High Court accepted a lawsuit Omni. In civil cases in the first instance, Pritchard was sentenced to pay compensation amounting to Rp 304 million. Then Pritchard appealed and the judges in the High Court (PT ) Bull mengkorting compensation to $ 204 million. The decision of the appeal, Pritchard appealed to the Supreme Court. Next termohonan Omni camp also filed an appeal and the Supreme Court refused to grant the appeal and cassation Omni Pritchard. But in the case of criminal cases Prita very opposite of the decision was civil, which sentenced him to Pritchard, the Supreme Court (MA) is now the opposite verdict in a criminal verdict in the same case. Supreme Court granted the appeal the prosecutor

(prosecutor). Diketok verdict by the presiding justices of the Main Zaharuddin, Salman Luthan, and Imam Harjadi. Assembly declared, the prosecution accepted. However, the Supreme Court did not explain how long confinement to be served Prita body. Clearly, the prosecutors had previously demanded the mother of three children six months in jail. In a previous trial in the District Court (PN) Jakarta, the judge sentenced Pritchard free. He was acquitted because the elements of defamation charges are not appropriate because the electronic mail (email) written Pritchard is just plain a patient complaint. Because acquitted, the prosecutor then appealed to the Supreme Court, but in the appeal petition the Public Prosecutor (Prosecutor) granted by the Supreme Court. Analysis of the writer, if you see a case of sitting on the case, it appears that the basic policies and policy enforcement of the law enforcement agencies have ignored the legal basis of the 1945 grounding of sociological, philosophical, humanitarian principles. Where in the discretion has been shown that a law enforcement agency that should protect the community or its people, contrary to impose on the public / citizens to carry out the policies are contradictory, which is clearly contrary to the 1945 Constitution and Human Rights. Moreover, if we are telescoped further, that the Law Number. 11 Year 2008 on information and electronic transactions do not have a Government that is still in early stages of completion, whether the problem is logical, if in Article 54 paragraph 2 to the Act explains that the Government should have established more than 2 (two) years after the enactment of this Act, but until now this government regulation has not been completed. Based on the news: Napier, Ministry of Communications and Informatics (Kemkominfo) of the Republic of Indonesia is currently completing the draft of Government Regulation (PP) of the Information and Electronic Transactions (ITE) as an elaboration of Law Number 11 Year 2008 on the ITE. Ferdinand Setu, SH, MH, Head of Drafting Regulations Application Information Directorate Ministry of Communications and Information Technology, confirmed this as a resource person in Training and Certification of Local Government Officials Cultural Documentation in the Makassar Golden Hotel (MGH), Tuesday (7 / 6). PP is expected to bridge the technical and operational constraints of the law at the field level. As delivered one of the participants of Parepare, Spirits Rahman, that although the Act has been enacted since 2008, but in practice it is not yet completely implementatif, due to a lack

of understanding and lack of technical rules are more detailed than the Act. He gave an example, autontifikasi letters electronically in financial administration that have not received the financial management of local governments. "In this Act has indeed been clearly stipulated that such electronic mail facsimile is valid and the evidence could be sanksi administration in finance. But in this field do not aplicable. People in the area of finance, especially in Parepare, unwilling to blindly accept such evidence. For them, a valid mailing if it results print out and wet signature, "he said. In order to accelerate service delivery, Spirits Rahman hoped that this issue can be addressed Ministry of Communications and Information Technology, and acted in the form of regulation on a technical level, the minimum circular to district / city governments are emphasizing that the letters such as electronic faxes can be evidence of the administration in the transaction finance. Answering this, Ferdinand promised, this issue will be submitted to the leadership level and is expected to immediately respond. He also said the problems presented in the training feed into it. "Here I will present to the chairman of the meeting or meetings, and hopefully can be addressed at least made a regulation," he said. http://www.Pareparekota.com

Chapter III Policy Implementation Act Number 11 of 2008 And Public Opinion Against Government Regulation Plan of Law Number 11 of 2008

A. Implementation of the Internal Policy.

Analysis of implementation of internal factors on improving electronic technology, despite being based on legislation which covered the Article 5 paragraph (1) and Article 20 of the Constitution of the Republic of Indonesia Year 1945, Law Number 11 Year 2008 on the ITE, but do not yet have a standard and government regulation is still in the stage of completion of the draft Regulation. On the basis of these thoughts then by internal factors, the basic policy of the Law no. 11 of 2008 is said can not run because it will clash with the 1945 Constitution, Article 28C and Article 28D and Human Rights Law, if this continues then there will be ongoing inner conflict and distrust for law enforcement officers. This is caused by conflicting policies and the clash between the forces / institutions with each other.

B. Implementation of the External Policy.

Ekstenal factor analysis, where the basic policies and policy enforcement from both prodak legislation and law enforcement executive from the contradictory and there is no sync between the legal considerations of environmental justice on the one with the legal considerations of environmental justice on the other. This is what the external factors can cause inner conflict and social conflict that would lead to arrogance and distrust nature to law enforcement.

CHAPTER IV

Conclusions and Suggestions

Conclusion: 1. Law Number. 11 Year 2008 concerning Electronic Transactions and Information. In chapter VIII: Settlement of Disputes, in particular on Article 38 of subsection (1) Any person may file a lawsuit against the party that organizes the Electronic Systems and / or using information technology to incur losses and (2) The public can file a lawsuit as representatives of the parties conducting Electronic Systems and / or use of Information Technology resulting in adverse public, in accordance with the provisions of legislation. 2. Law enforcement devices regulated in Chapter X: Special Investigator on Article 42 of the investigations on criminal acts as referred to in this Act, made pursuant to the provisions in the Criminal Procedure Code and the provisions in this legislation. And in Article 43 of the paragraph: (1) In addition to investigating officers at the Police of the Republic of Indonesia, certain Civil Servants within the Government that the scope of duties and responsibilities in the field of Information Technology and Electronic Transactions granted special authority as investigators as referred to in Law Law on Criminal Proceedings, to conduct criminal investigations in the field of Information Technology and Electronic Transaction, (2) Investigations in the field of Information Technology and Electronic Transactions referred to in paragraph (1) conducted with due regard to protection of privacy, confidentiality, the smoothness of the public service, integrity data, or data integrity in accordance with the provisions of legislation, (3) A search and / or seizure of electronic systems related to the alleged criminal act must be done with permission from the local chairman of the state court, (4) In conducting the search and / or foreclosure as referred to in paragraph (3), the investigator must keep the interests of maintaining public services and (5) Civil Servant Investigators as referred to in paragraph (1) authorized; 3. Verification arrangements provided for in Article 44 of the Evidence of investigation, prosecution and examination in court under the provisions of this Act are as follows: a.

evidence referred to in the provisions of legislation; and b.alat other evidence in the form of electronic information and / or Electronic Documents referred to in Article 1 number 1 and number 4 and Article 5 paragraph (1), subsection (2), and ( 3). 4. Basic Law is Article 5 paragraph (1) and Article 20 of the Constitution of the Republic of Indonesia Year 1945; 5. Basic policies and policy enforcement of Law no. 11 Year 2008 on the ITE, is clearly contrary to the legal basis to use the 1945 Article 5 paragraph (1) and Article 20, but the legal basis of Law no. 11 In 2008 it was contrary to Article 28C of the 1945 Constitution and article 28 D. 6. In terms of the investigation provided for in Chapter X: Investigators, in particular Article 42 has not been able to run in implementainya efekif conducted by the police and prosecutors, dikarena Government Regulations provided for in Article 54 paragraph (2) that government regulation should be set no later than 2 ( two) years after the enactment of the Act. However, until now still a draft Regulation of Governments, whether this is a wrong policy and violates the order of legislation, because the state of Indonesia adopted the Civil Law legal system. 7. Between the Civil Cassation ruling by the Criminal Cassation Decision in the Supreme Court contradictory, and very confusing justice seekers who are victims of the government institutions / countries that impressed no harmony between one another. Suggestions : 1. Should Law Number. 11 Year 2008 on Information and Electronic Transasksi, should direfisi disosialiaikan back as well as with related institutions, especially with the police, prosecutors and court / Supreme Court that nothing in the implementation of justice seekers feel aggrieved and not to impress disregard for Human Rights. 2. Devices enforcement / investigator, should be wise in following up the reporting party, and do klasifikasai against acts that are considered violations of the Information and Electronic Transaction, so that in regards to making the BAP did not interpret the Law. 11 of 2008. 3. In terms of proof provided for in Article 44 of the Evidence of investigation, prosecution and examination in the trial court must clarify whether personal emails can be used as evidence, given in the case of Pritchard is a consumer party, which according to the definitions and rules of law the consumer must be protected by legislation even though the email is vilify the producers, because they feel not satisfied with the treatment of producers (RS.Omni). 4. In terms of the legal basis of Law no. 11 of 2008 is Article 5 paragraph (1) and Article 20 of the Constitution of the Republic of Indonesia Year 1945, the ruling has set aside deed Section

28C and Section 28D. 5. Better in terms of the particular Article 42 investigation is not yet able to run because inside efekif implementainya, conducted by the police and prosecutors and to remember that government regulation stipulated in Article 54 paragraph (2) that government regulation should be set no later than 2 (two) years after enactment of the Act, up to now still a draft Regulation of Governments, this needs to be considered by the Supreme Court and other relevant institutions. 7. Better to avoid inner conflict and prolonged social conflicts, which will lead to arrogant nature of the society due to dissatisfaction of the treatment of law enforcement, the Supreme Court must act wisely towards contradiction that the consideration and decision. Bibliography: Http://www.infomediailmiah.com http://www.scribd/tlooh.com http://www.yahoo.com http://www.pareparekota.com http://www.antara.com http://www.detik.ocm http://www.kompas.com http://padangekspres.co.id http://www.tempointeraktif.com