The new intelligence law: Not smart enough

by Fitri Bintang Timur

When one comes across new legislation, they should ask: What does this bill regulate? For example, the Law on Internet Security should ideally regulate people using the Internet, while the Law on the Indonesian Military (TNI) should contain directives for members of the military corps.

Having the law’s name different from its objective is equivalent to implementing ineffective regulation because cases arising on the issue might not refer to the law. The same goes for the new State Intelligence Law.

Let us take a look at Indonesia’s recent Intelligence Law that was passed by the House of Representatives on Tuesday.

The law is probably one of the most prolonged legal drafts in Indonesia’s history, taking more than eight years to complete since it was first raised in 2002. Unfortunately, the result is not optimum.

The sharpest criticism was expressed by Kontras human rights group in its Oct. 6, 2011, press release regarding insufficiencies in the Intelligence Law in order to support democracy in Indonesia. Kontras warned that the draft might even jeopardize the country to a condition of lack of transparency by allowing intelligence to conduct wiretapping and secret interrogations to seek information (‘pengamanan’ and ‘penggalian informasi’, in Article 6 and Article 36 of the legal draft).

One thing that is disturbing is that the new law does not regulate penalties for intelligence agents that abuse special powers provided to them. An ideal law on state intelligence should regulate intelligence bodies, or otherwise it should be given another name.

Nevertheless, whenever this problem has been brought before lawmakers, the answer is usually sidetracked to issues of accountability and oversight.

There are articles on the two issues, but nevertheless, they are not enough. Article 42 only states that the accountability of state intelligence operations would be ensured by provision of a written report to the President.

Within the institution, accountability is achieved simply by providing a report to the head of the institution. Issues regarding oversight are stated in Article 43, which states that intelligence agency supervision would be done by internal mechanisms and a special commission created within the House. These two mechanisms, however, seem to be insufficient.

Advisors helping to create this state intelligence law have underestimated the risk of intelligence officials making mistakes. Similar to the New Order government, the future remains the same. Let us not be naive in repeating the answer given to then vice president Mohammad Hatta’s question when he was involved in formulating the 1945 Constitution on whether the rights of the people should be stated.

On the meeting of the Preparation Agency for Indonesian Independence (BPUPKI), Hatta’s input was, “We should not give unlimited power to the state to enable it to become a state based on power” (BPUPKI Monograph, State Secretary, Ris.209). But his suggestion was dismissed simply because there was no historic experience following colonial rule whereby the new independent state led by Indonesian rulers could also abuse other Indonesians with less power; less education and less capital.

With our experience under the New Order regime, we should be wiser and smarter. What happens if the intelligence body abuses its power? Should there be a corridor for people to demand justice?

Answers to these questions are not provided in the new Law. If we do not raise such concerns now, when the incident occurs and inquiries arise, the intelligence institution runs the risk of being accused of conducting covert operations to dismiss people’s objections.

Imagine what would happen if intelligence operations were carried out against people demanding justice for Munir because the new law excluded victims’ rights to inquire in intelligence operations.

Another strange thing of the new law is the existence of punishment imposed on people in general should they leak intelligence secrets (see Article 45). The logic behind this regulation should be questioned. Where do common people have access on intelligence secrets in the first place, if it is not from the intelligence agent and/or intelligence institution? We should focus on the main sources of leakage because they are the persons responsible for guarding secrets.

It would not serve justice to prosecute someone who discloses information that they may not have realized was confidential in the first place. Moreover, the limitation given to people in disclosing information actually contradicts the 1945 Constitution under Article 28F, which states: “Every person has the right to communicate and to distribute information using any means possible”.

If lawmakers decide to keep the secrecy regulations in the draft, it will be wiser to keep the regulation only to rule upon the intelligence service or issue a state secrecy law prior to the intelligence law in order to fairly inform the public of their civil rights and obligations in regard to handling the confidential affairs of the Republic of Indonesia. Indonesia still does not have a law on state secrets after its legalization was declined in 2009 reportedly due to poor drafting.

Noting that the public has voiced their readiness to take the new State Intelligence Law to the Constitutional Court once it has been legalized, the legislature think about perfecting the law before it is issued.

Again, they should be reminded of Bung Hatta’s statement in his book: “Toward Indonesian Independence (Ke Arah Indonesia Merdeka, 1932), “Law must rest upon the feeling of justice and truth that lives in the conscience of the people.”

The writer holds a Master’s degree in Defense Management at ITB-Cranfield, UK and is currently acts as a associate research fellow at Rajaratnam School of International Studies, Nanyang Technological University, Singapore.

Published in Jakarta Post, 19 October 2011

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