Last week, the Constitutional Court rejected a controversial challenge to the Criminal Code that sought…
The smoke had barely cleared on Jalan Thamrin after the tragic 14 January terror attack before intelligence chief Sutiyoso made a call for greater powers for the State Intelligence Agency (BIN). It was inevitable. The intelligence body has been campaigning for the power to arrest and detain terror suspects for more than a decade. Since the first Bali bombing in 2002, the government response to terror has been to strengthen coercive state institutions, such as BIN, the National Police (Polri) and the Indonesian Military (TNI).
The Joko Widodo administration and the national legislature also appear to agree on the need for revision of Law No. 15/2003 on the Eradication of Terrorism. Suggested reforms have included powers to revoke the citizenship of Indonesians who join the Islamic State of Iraq and the Levant (ISIL), creating new offences for Indonesians who travel to ISIL-controlled areas, and providing police with greater powers to detain suspects. But any law reform should be approached with great caution. To see why, one only needs to recall the long debate over the State Intelligence Law, passed in 2011.
Discussions on the intelligence bill can be divided into two phases: the initial period, from 2002 to 2003, when the Bali bombing influenced the spirit of the bill; and a second period, from 2004 to 2011, when concerns over the erosion of human rights and security sector reform had a more prominent role in debate. This culminated in a challenge of the law at the Constitutional Court in 2012, which was ultimately unsuccessful.
Under the first controversial draft of the state intelligence bill – widely suspected to have been drafted by BIN – the spy agency had the power to arrest and detain suspects for 90 days and leaking intelligence secrets carried the death penalty. The supposedly confidential bill was first exposed by the late director of Imparsial, Munir Said Thalib, during a hearing at the national legislature to discuss the government regulation that was eventually converted into the 2003 Terrorism Law. The 2002 intelligence bill was shouted down by the public, who accused BIN of ambitions of becoming a Stasi-like secret police, rather than a professional spy agency. The debate concluded with BIN refusing to acknowledge that it had drawn up the bill.
In 2003, another intelligence bill was leaked to the public. This time, it provided BIN with the power to detain suspects for 30 days without access to legal assistance, procure its own weapons, and establish regional offices at the provincial level. Although it would have been directly responsible to the president, the agency would not have been subject to control from the government or legislature. The bill again prompted a huge backlash from civil society over concerns of a return to Soeharto-era surveillance and the fear that BIN hoped to become a new military-style body.
In short, during the first phase of discussion, concerns over intelligence weaknesses at the time of the Bali bombing led to proposals for sweeping powers for BIN. Problematically, these early proposals revoked fundamental rights for suspects and detainees, including the right to complain against unlawful detention and the right to counsel.
The national legislature then made discussion of the bill a priority under the 2004-2009 National Legislation Program. A 2006 version of the bill drawn up by the government proposed making BIN responsible for coordinating all intelligence activities, including those under the National Police, the Attorney General Office and the TNI. One problematic article provided BIN with the power to arrest and interrogate citizens, conduct wiretapping, and investigate accounts and open letters considered to endanger security. Following further controversy, the bill was sent back to the government for revision.
After a few years of stagnation, the government submitted another draft bill to the legislature in 2010. The debate quickly heated up again, especially because the government also proposed a bill on national security (RUU Keamanan Nasional), and both provided BIN with the power to detain suspects. The national security bill would have even given similar powers to the TNI and the National Counter-Terrorism Agency (BNPT).
Civil society organizations launched a fierce campaign in opposition to both bills. With the government continuing to push for greater powers for BIN, the legislature eventually reached a compromise and in October 2011, the bill was passed as Law No. 17/2011 on State Intelligence. BIN’s authority to arrest and interrogate suspects had been dropped but a number of strict provisions proposed by the government were accommodated. The bill on national security, meanwhile, was shelved, and there have only recently been moves to revive it.
The vague language and broad reach of the 2011 State Intelligence Law led a coalition of civil society organizations to seek judicial review of the law by the Constitutional Court in 2012. The coalition challenged 16 articles that it felt had the potential for abuse of power. Although the Court rejected the request, it provided civil society with a prominent forum to remind BIN that abuses of power would not be tolerated.
The public is certainly not short on reasons to be wary of overreach from BIN. High-ranking BIN officials were implicated in the murder of human rights defender Munir in 2004. BIN officials also exploited the institution’s authority to oversee the eradication of counterfeit currency. Seven BIN officials were eventually convicted in 2005 for printing and circulating counterfeit bank notes.
Given the convoluted history of the Intelligence Law it is no surprise that BIN is now publicly calling for an amendment to insert an article on detention of suspects. But what about the 2003 Terrorism Law? Following the Jakarta attack, Indonesian terror experts have argued that existing counter-terror legislation does have real weaknesses that prevent the authorities from taking desirable steps against violent jihadists.
Although more could be done to tackle the threat posed by the flow of Indonesian jihadists to Syria, revising Law No. 15 of 2003 on Terrorism is not the answer. Mimicking the draconian Internal Security Act of Singapore or Malaysia – as government figures have suggested – could be disastrous. The Criminal Code does not mention terrorism crime specifically, but it already provides the means to prosecute terrorists, for example under articles on murder (338, 340) or treason (107). Further, Indonesia could exercise extraterritorial jurisdiction and prosecute Indonesians abroad under the active nationality principle of international law. Articles 4 and 5 of the Criminal Code also provide for the prosecution of Indonesian citizens who commit offences outside Indonesia. Likewise, other states could prosecute Indonesians in their territories under the universality principle. If the other country does not regulate the exact crime, it may be possible to extradite the perpetrator to Indonesia.
After its separation from the Indonesian military, the National Police has undergone significant change, with huge budget increases and a major expansion in the size of the force. Police already have the authority to conduct investigations, detain and charge suspects under the 2003 Terrorism Law, although they are limited by law to respect and protect human rights. The prominent role of the police in terrorism eradication has, however, caused jealousy in the military, which also wants a slice of anti-terror powers. Strengthening police powers further could exacerbate this turf war.
The current debate shows the reactive nature of efforts to eradicate terrorism in Indonesia. Security literature recognizes a distinction between counter-terrorism and anti-terrorism. Counter-terrorism is a coercive policy and consists of the repressive measures taken by the state against perpetrators of terrorism. It therefore demands professionalism and proportionality from security forces. Anti-terrorism, meanwhile, encompasses total state efforts to eradicate terrorism, and includes social, cultural, economic, and political dimensions that focus on addressing the underlying causes of terrorism. Indonesian government efforts have focused too much on counter-terrorism, causing an imbalance between security and liberty.
Despite the real threat of terrorism faced by Indonesia the country must resist the temptation to revise the State Intelligence Law or Terrorism Law and provide the BIN or police with greater powers. Intelligence agencies must not be able to exploit the current fear to extend their authority to take unauthorized or unlawful actions that violate human rights. For more than a decade, only the coordinated efforts of civil society have prevented the winding back of hard-won security sector reforms since 1998. The government can be sure that any efforts to revise these laws will once again be met with bitter resistance from civil society.