The wiretapping loophole: A hasty future for Indonesian law fter last month's controver- saying this legal gap was "by de- Analysis sial passage of the revised Criminal Law Procedures Code (KUHAP) bill, concerns have emerged regarding a significant legal loophole: wiretaps. Activists say that if left unchecked, law en- forcement agencies like the Na- tional Police will have leeway to wiretap anyone at any time with- out formal mechanisms and re- strictions once the KUHAP comes into force on Jan. 2. Under Article 136(1) of the newly passed bill, "investigators may conduct wiretapping for an investigation", while the following section, Article 136(2), states that a separate law will regulate eaves- dropping. However, no wiretap ping law exists yet, creating a legal void that is ripe for abuse in future investigations. House of Representatives Com- mission III chair Habiburokhman, who oversaw the drafting of the KUHAP bill, dismissed these fears, sign". The lawmaker, who hails from the ruling Gerindra Party, made assurances that a majori- ty of House members agreed that wiretaps must be carried out care- fully and only with court permis- sion, and that these safeguards would be stipulated in a forthcom- ing wiretapping law. However, in the absence of a draft law open to public scru- tiny, concerns are growing that this new law will not be enacted before the KUHAP comes into force. While last week saw some development at the latest House plenary session, where the bill was introduced for inclusion in the National Legislation Pro- gram (Prolegnas), no actual de liberation has taken place. With the legislature now in recess un- til Jan. 12, it is highly unlikely that a draft wiretapping law will be completed before the new KU- HAP is implemented. By Tenggara Strategics Jakarta In the meantime, the House Legislation Body (Baleg) has been tapped as caretaker of the wire- tapping bill. This marks a shift in responsibility, as the KUHAP was deliberated and ratified by House Commission III, which oversees law enforcement, while Baleg is known as the legislature's "fast track" and the preferred channel for expediting passage of a bill. This was demonstrated earlier this year when Baleg revised and approved the Mining Law in just three days. Regardless of legisla- tive efficiency, the rushed pro- cess invited more criticism than praise for its lack of public par- ticipation, expert consultation, and clear urgency. The new Mining Law allows re- ligious organizations, small and medium enterprises (SMEs), and cooperatives to obtain mining rights, fueling accusations that the revised legislation was a trans- actional move to secure political support from mass organizations. As the wiretapping bill is now a priority legislation, the House must strike a balance be- tween the KUHAP's upcoming implementation and mounting concerns from the public and experts. Civil society groups, in- cluding the Coalition for KUHAP Reform, have consistently urged the restriction of wiretaps to in- vestigations of serious crimes and that they be subject to in- dependent checks and balances through court approval. If Baleg is willing to accommo- date public input, it does not have to look far to find this. Meanwhile, the Corruption Eradication Commission (KPK) has voiced its willingness to pro- vide key recommendations for the wiretapping bill, arguing that the new KUHAP limits wiretaps to the investigation stage, effec- tively restricting the KPK's pow- ers. Unless this is addressed in the draft law, it would mark an- other major setback for an insti- tution that has been weakened since its independence was cur- tailed by the 2019 KPK Law. At present, the antigraft body has the authority to conduct wiretap- ping during the preliminary in- quiry stage in investigations of corruption, which is deemed an extraordinary crime. With just three weeks left to the year and the House in recess, it seems inevitable that a peri- od of legal uncertainty will ex- ist between the KUHAP entering into force and the wiretapping bill becoming law. The pressing question is, how long will that period last? law
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