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Not a Threat, This Is Legal Explanation of Hary Tanoe's SMS to Prosecutor Yulianto

08 Juli 2017 15:53
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Not a Threat, This Is Legal Explanation of Hary Tanoe's SMS to Prosecutor Yulianto

JAKARTA - Text message from Chairman of Perindo Party, Hary Tanoesoedibjo, to Prosecutor, Yulianto, is not a threat. In fact, the content confirm Hary Tanoe's good intention to make Indonesia as a better country.

"Mas (Mr.) Yulianto, we will prove who is wrong and who is right. Who is professional and who is an aggressor.

You must remember that power does not last. One of my reasons in entering politics is to eradicate law enforcement officials who are unprincipled, transactional, and who are abusing their power.

Mark my words, I will be a leader in this country. Then only will Indonesia be cleansed."

"Mas (Mr.) Yulianto. We will prove who is wrong and who is right. Who is professional and who is an aggressor.

You must remember that power does not last. I entered politics because I want to advance Indonesia in a real sense, including enforcing law professionally, not transactionally, and not acting in an unprincipled manner for the sake of popularity and abuse of power.

One day I will become a leader in this country. Then only will Indonesia change and be cleansed of the things that are unjust.

Pity the people; the poor in our country keep on increasing, while other countries are growing and advancing."

Law and language expert confirmed that the text messages consist no threats for the receiver. Yet, Hary Tanoe is alleged has violated Electronic Information and Transaction Law (UU ITE).

Article 29 of the UU ITE of 2008 says: "Any Person intentionally, and with no right, sending Electronic Information and/or Electronic Document containing threat of violence or intimidation to another person."

And the amandment Article 45B of the ITE Law of 2016 says: "Any Person intentionally, and with no right, sending Electronic Information and/or Electronic Document containing threat of violence or intimidation to another person as mentioned in Article 29 is indicted with an imprisonment sentence of a maximum of 4 (four) years and/or fined as many as Rp.750,000,000.00 (seven hundred and fifty million rupiahs)."

"The condition of this Article including the Law the Article is in, covers cyber bullying, which addresses threat of violence or intimidation resulting in physical violence, psychological damage, and/or material loss."

Which in facts, has not proven. By legal explanation, Hary Tanoe neither has the power nor the capacity to conduct or implement what he said, so there is nothing to be fearful of. Besides, Hary Tanoe has no intentions of intimidating.

The sentence “eradicate unprincipled officials” are meant to be plural, not directed to a particular person. Mr. Yulianto should not have overreacted and feel intimidated.

The sentence “eradicate law enforcement officials who are unprincipled, transactional, and who are abusing their power” is an explanation to one of the reasons why Hary Tanoe entered politics. This sentence is of nature that is normative, positive, and of good intentions. Of course, other intentions of Hary Tanoe entering politics is to increase the livelihood of Indonesians, especially the grassroots, eradicate corruption, etc., so that Indonesia can be a developed country.

In understanding this issue, the sentences should not have been fragmented, but instead seen as a whole, and that the SMS dated January 5 and WA dated January 7 are integral parts that cannot be separated from one another.

In Article 29 of the ITE Law of 2008, amended by Article 45B in 2016, it is clearly mentioned for a need of threat of violence and intimidation for the Law to apply. Neither the SMS nor the WA contain any threat of violence whatsoever.

If the SMS and WA are understood by perhaps intimidating words, they must be interpreted within context, as the Article clearly states “a sentence containing threat of physical violence.” Hence the “intimidation” in the Article is to mean, “intimidating with an act of physical violence.” If the word “intimidation” is taken as is, such will make any sentence be loosely interpreted as intimidation, even if it is with good intentions, for example: “If I am the leader of this company, I will eradicate those who are corrupt,” can also be categorized as intimidation, even if it is a normative, positive sentence, with good intentions.

It is the same as a political rhetoric broadcasted on TV, where someone says: “If we win, corruption will be eradicated, law enforcement officials who are transactional will also be cleansed, etc.,” then he/she can also fall into the ITE Law with charge of intimidation.

Obviously, this case happened 1.5 years ago in early 2016, and has ceased for a long period of time.

There has even been a recommendation from the special committee in Commission III DPR RI dated March 17, 2016, saying this SMS and WA case is not intimidation.

However, it was resurfaced in early May 2017, post the Jakarta Gubernatorial Election, where Hary Tanoe supported and contributed to the victory of candidates Anies/Sandi. The case is elevated out of proportion in the media as if it was major, and as though there were many anomalies in the legal process. It is likely that the intention of this, is more of a political revenge.

One more noteworthy fact is the banning of the Perindo Hymn from television and radio broadcast since early May of 2017, coinciding with the resurfacing of this SMS/WA case after a 1.5-year hiatus.

The understanding of the ITE Law of 2009 Article 29 in conjunction with Article 45B of 2016 clearly state a threat of physical violence or intimidation (to an act of violence).

This understanding has to be laid clear. If a threat or intimidation is perceivable to all context, all politicians can be penalized. For example in a political campaign covered by TV and online media, someone said “if our party wins, then corruption and drug abuse will be eradicated down to the roots,” can be indicted with ITE Law even if the sentence is a normative and positive sentence, with good intentions.

It is the same with a case of a debtor who could not pay his mortgage and the one of the bank officials sends an SMS to him: “your house will be auctioned if you could not pay by next month,” then the ITE Law would also be used.

The sentence in the SMS/WA to Yulianto says: “eradicate law enforcement officials who are unprincipled, transactional, and who are abusing their power” that is a normative, positive sentence, and with good intentions, would then share the same fate with the previous examples.

Furthermore, the sentence is not intended solely for Yulianto, as the context explains that it is one of the reasons of (the sender) entering politics. It is intended to the “unprincipled officials,” which is plural and not singular.

Baca juga: Kapolri Resmi Lantik Irwasum dan Kabarhakam Polri

Sumber: news.okezone.com

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