The wiretapping loophole: A hasty future for Indonesian law

After last month's controversial 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 enforcement agencies like the National Police will have leeway to wiretap anyone at any time without formal mechanisms and restrictions 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 eavesdropping. However, no wiretapping law exists yet, creating a legal void that is ripe for abuse in future investigations.

House of Representatives Commission III chair Habiburokhman, who oversaw the drafting of the KUHAP bill, dismissed these fears, saying this legal gap was "by design". The lawmaker, who hails from the ruling Gerindra Party, made assurances that a majority of House members agreed that wiretaps must be carried out carefully and only with court permission, and that these safeguards would be stipulated in a forthcoming wiretapping law.

However, in the absence of a draft law open to public scrutiny, 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 Program (Prolegnas), no actual deliberation has taken place. With the legislature now in recess until Jan. 12, it is highly unlikely that a draft wiretapping law will be completed before the new KUHAP is implemented.

In the meantime, the House Legislation Body (Baleg) has been tapped as caretaker of the wiretapping 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 legislative efficiency, the rushed process invited more criticism than praise for its lack of public participation, expert consultation, and clear urgency.

The new Mining Law allows religious organizations, small and medium enterprises (SMEs), and cooperatives to obtain mining rights, fueling accusations that the revised legislation was a transactional move to secure political support from mass organizations.

As the wiretapping bill is now a priority legislation, the House must strike a balance between the KUHAP's upcoming implementation and mounting concerns from the public and experts. Civil society groups, including the Coalition for KUHAP Reform, have consistently urged the restriction of wiretaps to investigations of serious crimes and that they be subject to independent checks and balances through court approval.

If Baleg is willing to accommodate public input, it does not have to look far to find this.

Meanwhile, the Corruption Eradication Commission (KPK) has voiced its willingness to provide key recommendations for the wiretapping bill, arguing that the new KUHAP limits wiretaps to the investigation stage, effectively restricting the KPK's powers. Unless this is addressed in the draft law, it would mark another major setback for an institution that has been weakened since its independence was curtailed by the 2019 KPK Law. At present, the antigraft body has the authority to conduct wiretapping during the preliminary inquiry 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 period of legal uncertainty will exist between the KUHAP entering into force and the wiretapping bill becoming law. The pressing question is, how long will that period last?