By: Mufti Makaarim A.
During 13 years of Indonesia transition after the fall of Soeharto’s authoritarian regime in 1998, efforts have been done in enforcing reform of governance and democratization of politic, economic and state administration. Some of the strategic achievements include the review of many policies and decisions, as well as the previous government’s actions in their ruling period of 32 years, also the revisions of those policies and regulations as demanded by public when they brought down General Soeharto and his military regime. Soon after the resignation of Soeharto, People’s Consultative Assembly of the Republic of Indonesia (MPR-RI) released several decrees on the amendment of MPR’s order, the source of law and order of regulations, the recommendation of corruption eradication, the resolution of Aceh and Papua, the resolution of past human rights abuses, the recommendation of provincial autonomy, the separation of police and military, and the description of police and military roles. Most of these decrees passed in 1999-2000 and are good in its content and openness process due to the strong pressure of civil society as well as ‘international community’ on Indonesian transition to democracy after Soeharto’s regime was forced to be reformed by massive demonstration in 1998.
Specifically on the sector of defense and security, in the year 2000 the House of People’s Representatives on the Republic of Indonesia (DPR-RI) passed an important Law on Defense (Law Number 3/2000) and Law on Indonesian National Police/Polri (Law Number 2/2000). In 2004, DPR finalized and passed Law on Indonesian National Military/TNI (Law Number 34/2004). Up to now, other legislations are still on the process in parliament and government as bill, such as on Amendment of Military Court; State Secret Bill; National Security Bill; State Intelligence bill; Reserve Component Bill and Defense Industry Bill.
Meanwhile, specifically on human rights promotion and protection, in 1999 Indonesian parliament passed Law on Human Rights (Law Number 39/1999) which strengthen the indivisible, undeniable and basic for fundamental rights of people as recognized in International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) –it was anti-thesis of Soeharto’s military regime policies that denied and rejected any obligation of the state to respect, to protect and to fulfill all kind of human rights. In the year 2000, DPR and government passed Law on Human Rights Court (Law Number 26/2000) which has recognition on crimes against humanity and genocide as gross violation of human rights and demanded special mechanism of court to ensure its accountability, independency and justice. In 2004, Indonesian Parliament passed law on Truth and Reconciliation Commission (Law Number 27/2004), nevertheless in 2006 the Constitutional Court cancel the law by reason of its inability to ensure state responsibility to fulfill the rights of victims and its inconsistency with the constitution. Following these 3 basic legislations, in year 2002, Indonesian government and parliament passed Law on the Protection of Children Rights (Law Number 23/2002). In 2004, the parliament also passed Law on Eradication of Domestic Violence (Law Number 24/2004). In 2006, Indonesia passed Law on the Witness and Victims Protections (Law Number 13/2006). Indonesia also ratified ICCPR and ICESCR in 2005, few years after, some other convention such as ILO Convention, CEDAW, CERD and CAT were ratified.
In 2008, the Indonesian parliament initiated and passed the Freedom of Information Act, titled “The Law on the Openness of Public Information (Law Number 14/2008). It was great achievement for the advocacy on freedom of information, since we had experienced secrecy practices done by the government and security institutions of the country. The law adopted some international norms and principles of human rights and rights to information, underlined the principle of information as public goods except on some limited category, and arranged complain mechanism in case of the unwillingness of public institution to release public information as requested. Since 2010, this legislation effectively regulates all of public institution, including all branches of executive apparatus, parliament, and other public institutions.
The journey of Indonesian reform is not only filled with the story of success, but also various challenges and obstacles from the legislation level, and also the cultural resistance from the government, conservatives elites and political parties, and the group ‘presumed’ as perpetrators or person-in-charge for crimes and violations in the past. Especially in security sectors, the resistance of reform from internal institution remains. It is not stated openly but had been shown by some of the ‘actions’ done in the executive, legislative, or even on judicative level.
This short overview will observes those legislations in the security sectors and the relation to freedom of information, whether the regulations of the bills recognized it or not, and what are the impacts of these situation. First, in general I would like to identify the comprehensiveness of our regulations or bills in term of information clearness or properness, then to the adoption of mechanism on public information access during the implementation of these regulations or bills –when it passed as laws with the recent problematic contents. Then I will close this paper with some conclusions and underline an important step to ensure the appropriateness of the security sectors laws with the rights of the people to public information, including in the security sector.
The Established Legislations: ‘Have No Teeth to Bite’
Indonesia’s Defense Law is more focused on normative concept of defense rather strengthens the democratic concept on defense arrangement by having good, accountable and professional authorities or policy makers. It still uses old paradigm of conventional threat and land-based defense policies, within it has assumption of internal threat is dominant rather than external asymmetrical attacks. Its regulate the mechanism of mobilization of military or other defense component including the citizen, without any clear explanation on the context and the time of mobilization, consequences and rewards, and have no sufficient analyzes on its compatibility to recent threats, geographical context, capability to finance, or other non-military solution. Up to now, the national defense council (Dewan Pertahanan Nasional) as assistant body to the President as mandated by this law to identify defense problems and to recommend policies still not exists. The important role of this body is also in delivering sufficient public information on defense matters, trough the defense ministry, president or parliament, or even directly in case of emergency and by the permission of president. Since the information of internal dynamic on defense policies is limited, the effectiveness on this law still questioned.
The recent defense policies mostly come by ‘bottom up procedure’ or decided by the military themselves then proceed by the ministry rather as the ‘administrative management’ then the political supremacy on directing or overseeing them.
Law number 2/2000 on Indonesian National Police tends to demilitarize Indonesian Police after their separation from the Military, and specify their roles on law enforcements, public orders and services. It is quite detail in identifying the functions and authorities of police, but fails to ensure sufficient accountability and control mechanism. As an excess of this situation, the practices of abuse of power or other violations by the police are occurred widely in the country, especially in provinces, without any sufficient control by executive and legislative. Information of the progress of police services (especially for ordinary crimes or petty crimes that widely exist in daily life of people); the accountable law enforcement for police brutality or abuse of power; or even other actual information that are important for public are still difficult to get. With huge budget and lack of control and accountability, police is now acknowledged to have problems and it becomes a serious issue of Indonesia’s judiciary system reform, as well as of its security sector reform. Hiding behind the exception of information (the secret of police information in general), all of the effort to set control to them not really work properly. Parliament is too weak to oversee the police, since they have their own problem of their capacity and concern which is criticized right now by most of people.
The fundamental problems of our National Military Law are on the acknowledgment on their dominant roles for domestic security, their involvement directly in policy making and it ineffectiveness in the implementation. According to the law, military operations other then war (MOOTW) are included in several internal security issues such as separatism; terrorism; or assisting government (in administration or governance), without any clear policies whether it needs request from the civilian authority due to police inability or not. Until now, the transformation of military’s economic activities is still questioned due to unfinished process in the government, despite the law had mandated that the activities should be resolved 5 years after the law had been passed (now is almost 7 years after). As Head of Police, the Military Commander is also part of the President cabinet member, and is actively involved in most of policy making process. The role of the Defense Minister is mostly to take care for administrative rather than to oversee the military as political authority. Many public complaints were raised toward the gap of the normative reform in legislation, the continuity of military violation of law and human rights, and the cases that are not processed in just and accountable manner. Another actor contributed to the failure to ensure consistent military reform is the parliament inappropriate oversights toward them. Again, the problem of information secrecy on the internal dynamic of military ‘hijacked’ public access to their accountability even based on their own law parameters.
One of serious problems in terms of our democratization, promotion of human rights as well as security sector reforms is an agenda of war against terrorism. Indonesia as a country suffered from terrorist attack since year 2000 had finally decided to set law on terrorism (Law Number 15/2003). After Bali Bombing in 12 October 2002, the government passed government regulation on terrorism, which adopted as law one year after the regulation issued. Most of arrest and detention activities are not respecting the presumption of innocence and due-process of law principles, and tend to legalize the practices of incomunicado detentions and enforced or involuntary disappearance. The police, intelligence and even the military are main issue of these problems and until now, the debate on the revision if this law is still not focused on reducing human rights violation, but to strengthen the power of intelligence and police to be more repressive. In the context of freedom of information, the Article 20 of the terrorism law said, “everyone who use their force or use an intimidation of using force, or intimidate the investigator, prosecutor, or judge on the court of terrorism crime and affected to the disturbance of the court, shall be punish by 3 year of prison in minimum or 15 years of prison in maximum.” These words of ‘using force’ and ‘intimidate’ have multi-interpretation (elastic, not-rigid), which might be interpreted by personal opinion of the officer, and cannot be divided whether you argued or protested or disturb the court, by the issues of contempt of the court.
The Bills: Another Door of Democracy and Human Rights Degradation
State Secret Bill is one of civil society concern for the last 7 years, since the parliament initiated Freedom of Information (FoA) Bill in 2004. During the process of Freedom of Information Bill, the idea behind the proposal of state secrecy bill is to ask the parliamentarian to pass first this bill, then the FoA Bill. The government wanted public information as an exemption of secret information, with assumption that all information is secret except the limited information that is acknowledged as public information, which is against MALE principles. Although the FoA stressed that secret information is limited and does not have lifetime retention period, the government still puts huge aspect of secrecy in the name of security, defense, intelligence, foreign affairs, economic, natural resources protection, and other kind of information that are defined as secret by law. The law also regulate long period of retention, which it can be repeatedly extended without any restriction for it to end its secrecy period. The bill also criminalized people who unintentionally accessed the secret document, but not the officer or institution that have direct responsibility for guarding the secret information.
Right now, the legislation process of Intelligence Bill is on going in the parliament. Several critics on the bill draft are 1) unclear objectives of the law; 2) unclear idea of the law (whether to regulate Indonesia’s strategic intelligence, to coordinate all or only one particular intelligence institution); 3) there is demand for involving military and law enforcement intelligence in national intelligence body (BIN); 4) there is demand for authority to arrest or conduct incommunicado detention and to wiretap without court permit; 5) the bill also have problem on classification of secret intelligence information and its retention period; and also 6) limited oversight mechanism of the intelligence body. Moreover all intelligence information is difficult to be use in court in case there is public complaint on illegal operation of the intelligence agent. What is feared is that through this legislation, the privilege of military and police is returning, which they can use their power to conduct illegal operation and hide behind the secret of intelligence operation, such as to arrest people without court permit as they did during Soeharto’s regime.
As reaction and response to both of bill, since 2010 some of activities and program conducted. Regarding the state secret bill, CSOs organized massive campaign to criticize the bill and to ask the government to revise it, otherwise the CSOs and others group such as media or academic institution will reject it and organize politic and legal advocacy on it. In 2009, after simultaneous media pressure, public pressure and national petition on rejection of this bill, President Soesilo Bambang Yudhoyono asks Minister of Defense Juwono Sudarsono to withdraw the bill from parliament by a consideration of public disapproval. The dilemma of this rejection is the continuity of secrecy practices in all branch of executive and security sector on behalf of state secret, even by using the article of exception in FoA. This situation triggered an initiative of CSOs in 2010 to have an alternative draft of state secret bill as a comparator of government bill which is planned to be discussing in recent period parliamentarian as part of national legislation plan 2010-2014. The alternative draft of CSOs extracted exception articles in FoA and focused strategic information on national security as the only reason of making state secret, that mean mostly related to strategic information of defense, security, intelligence and encryption.
For intelligence bill, CSOs organized coalition to set a massive advocacy and campaign to criticize the bill and its regulation process in parliament and government. Since the parliament plan to finalized the legislation process before July 2011, CSOs underline the delay of this deadline and ask revision of the bill by considering public input, sufficient public hearing by government and parliament, and consistent commitment to ensure intelligence reform than only to regulate them and give the more extra ordinary power by the reasons of recent threat such as terrorism. CSOs called up the parliament to ensure the protection of civil liberties and human rights as well as accountable and professional intelligence without any permissive policies to them for abusing the law and human rights, otherwise the law and intelligence institution will faced a lot of complain next, especially on the problem of ‘the dangerous impact’ of intelligence operation and the secrecy practice by intelligence operation.
In general, the achievements and obstacles or democratization and reformation are sometimes equally existed in some county, and its proportion depended on the political consensus and pressure among the stake holders and society. The political will and the ability of state to cut off all of their relation with previous government interest are important milestone of transition, especially for country that living in long time period under the authoritarian regime. For Indonesia, the CSOs recent struggle is to keep the consistency of democratization process which is included adoption of good governance, security sector reform, transitional justice and promotion of human rights.
Somehow, we recognize all of the effort to consistently reform the legislation, but we feel more strong effort is importance and urgent. As the government and parliament succeed on stabilize politic and economic situation, the concern and effort on ensuring some reform above needed. The government also needs to feel the gap between their assumption and claim of ‘successful reform’ for the last 13 years with the realty and public want. Normative indicators such as laws and policies need the other follow up steps such as: 1). It effectiveness in transforming the institution to be more reformist; 2). It impact to social life, including public safety and prosperity; 3). The accountability of institutions and sectors who implement the laws and policies, including in access of information; 4). Evaluation of its achievements and problems based on public opinion; and 5). Public participation in planning, implementing and evaluating the laws and policies.
Jakarta, 13 May 2011
 Mufti Makaarim is an Executive Director of the Institute for Defense, Security and Peace Studies (IDSPS), based in Jakarta, Indonesia. He works on advocacy of Indonesian Security Sector Reform (SSR) in general, and on legislation in security sector in particular. He was member of Expert Team on Alternative Draft of State Secret Bill and State Intelligence Bill conducted by Indonesia’s Civil Society Coalition.
 The resolution is concerning the conflict between the state with local resistant named Gerakan Aceh Merdeka (Free Aceh Movement) and Organisasi Papua Merdeka (Organization of Papua Independence). Nevertheless the general recommendation is not clearly demanded peaceful dialog or political negotiation; it is only mention that Jakarta’s should have plan to end the long-period of human rights’ violation and conflict in Aceh and Papua.
 During Soeharto’s administration, the Indonesian National Police (Polri) and the Indonesian National Army (TNI) were combined under the Indonesian Armed Forces (ABRI) and share their role in security matters, especially for domestic security. The serious critic due ABRI’s role and the demand of separation of military and police are related to the military’s dominant role trough dual-function (dwifungsi) concept in government (executive) and parliament. The armed forces were also involved politic, economic and social roles. As an impact of this long period involvement, various abuse of power and serious violation of laws and human rights took place.
 Another great achievement of this period is an amendment of Indonesia’s constitution which now includes the state responsibility to respect, to protect and to fulfill fundamental rights and other human rights as acknowledges in Universal Declaration of Human Rights.
 At the time, Indonesia has problem of widespread and systematic crimes in East Timor after the referendum had been won by an option of independence. Most of the perpetrators are local militias that embedded to Indonesian military and police; and on some cases directly and indirectly involving Indonesian military and police officers and soldiers. Threaten by international investigation of UN and given the pressure of international community, Indonesian government decided to have its own investigation and human rights court, which triggered the existence of the Law on Human Rights Court.
 This law is based on MPR-RI decree in year 2000 on the strengthening of national unity trough the truth and reconciliation commission. The commission is an extra-judicial institution for fact finding on past abuses (especially on human rights violation) and had created an agenda of justice and reconciliation. The 2004 law was criticized since it is unable to provide justice and accountability process, as well as it has potential to become an impunity mechanism, and according to some organizations who criticize it, the Law only asks the annulment of some articles in law that potentially making the law to become ineffective. But finally, the constitutional court decided ultra-petita decision by canceling all of the law.
 For instance, in East Timor case, the ad hoc human rights court released all the military officers alleged and charge them as person who are not guilty in the factual accident of killings, burnings, forced evictions and mobilization of people to move out from their homeland, rapes and tortures, and other massive violations. From the beginning, the court becomes non independent because of the political pressure from the chauvinistic politician, military institution, or even from mass organizations who have affiliation to them. In legislation process for example, they had been involved in influencing the final decision of legislation that could endanger democracy and the accountability of the government, such as in the case of intelligence bill that was proposed by State Intelligence Agency (BIN) in 2002, 2003 and 2006 and rejected to be discussed by DPR-RI. BIN had drafted the bill that is planned to regulate them themselves, inserted some request on privileges such as having authority to arrest, ownership of small arms, full secrecy, and allow self-financing.
 The Head of Polri is directly appointed and reported to the president. There is no ministerial control toward the police institution as generally represent supremacy of civilian government to control the police as an instrument of the state for internal security issues. The head of police is in equal position with the ministers, they sit down together as a member of the President’s cabinet. Whilst the national commission of police is an institution fully controlled by the Head of Polri, appointed by him and only has advisory function to him or to the president.
 The law just mentioned the state decision on approving military roles in operation other than war, without any explanation on its detail procedures. In many cases, the military run this kind of operation without any political orders, such as in their involvement in land conflict with the citizen that ideally should be handled first by civilian authority or police.