Overbroad Provisions Facilitate Repression
Indonesia should protect its citizens against terrorism and other threats, but the loose language of the intelligence law invites dangerous misuse. If the government wants a good intelligence law, it needs to start over.
Elaine Pearson, deputy Asia director at Human Rights Watch
(New York) – Indonesia’s recently enacted intelligence law could be used to impose repressive practices reminiscent of the Suharto era, Human Rights Watch said today. The Indonesian parliament, which passed the law on October 12, 2011, should repeal or amend the act to meet international human rights standards, Human Rights Watch said.
“Indonesia should protect its citizens against terrorism and other threats, but the loose language of the intelligence law invites dangerous misuse,” said Elaine Pearson, deputy Asia director at Human Rights Watch. “If the government wants a good intelligence law, it needs to start over.”
The new “Law on State Intelligence,” contains vague and overbroad language that could facilitate abuse, Human Rights Watch said. Article 6 broadly authorizes the Indonesian State Intelligence Agency (Badan Intelijen Negara, BIN) to engage in efforts “to prevent and/or to fight any effort, work, intelligence activity, and/or opponents that may be harmful to national interests and national security.”
“Opponent” is loosely defined as any “party from inside and outside the country engaged in effort, work, activities and action that may be detrimental to national interest and national stability.” BIN’s activities include efforts “to prevent, to deter and to overcome” – the meaning of which is vague – “every possible threat to the national interest and national security.”
Human Rights Watch said the law’s broad provisions could be used to legitimize government efforts to oppress political opposition. The phrases “national stability” and “opponents” were common terms during Suharto’s rule, from 1967 to 1998, invoked to justify crackdowns on pro-democracy activists, students, and human rights groups. Earlier draft versions of the law contained even more worrisome provisions, but they were removed as a result of advocacy by legal and civil society groups.
The new law also contains provisions that could be used to violate freedom of speech and the press, Human Rights Watch said. Articles 44 and 45 broadly state that “anyone” who deliberately or even negligently leaks confidential information about intelligence activities is subject to imprisonment. This language could easily be used to prosecute journalists, political opposition members, or human rights activists who publish information in the public interest about government abuses. For instance, journalists who produced media reports in August 2011 revealing that Indonesia’s military intelligence services were involved in the surveillance of activists, politicians, and clergy in easternmost Papua province might be subject to prosecution, Human Rights Watch said. The Papua revelations were based on hundreds of pages of internal military documents from 2006 to 2009 that Australian journalists had obtained. Indonesian authorities have a track record of using legal mechanisms to threaten journalists and civil society activists.
“Indonesian authorities have long used dubious laws as a pretext to harass civil society and silence government criticism,” Pearson said. “The new intelligence law will make repression even easier.”
The law grants BIN the power to conduct surveillance under a court order. Under Article 31, BIN has “special powers” to intercept communications and examine the flow of funds “strongly suspected for the financing of terrorism and separatism.” Because Indonesian courts are not adequately independent of political interference or BIN pressure, Human Rights Watch is concerned that granting BIN surveillance powers, even with court oversight, will allow the agency to use spying as a tool of political repression against opposition parties, political activists, and indigenous groups. Surveillance of civil society was common during the Suharto era.
Human Rights Watch called for improved and independent oversight of BIN. The new law establishes BIN as the chief intelligence body in Indonesia under the president’s direct control. Regulation of agency activities is subject only to the Office of the President and to parliamentary oversight. Until the law is repealed or revised the government should create an independent mechanism reporting to parliament to oversee the intelligence agency, such as an inspector general or ombudsman, Human Rights Watch said.
Another provision of the law could be misused to protect abusive members of the intelligence agency from prosecution or to provide the agency with legal cover if it decides not to cooperate in criminal proceedings, Human Rights Watch said. Article 17 states that BIN officers and their families are entitled to receive “protection” – a term that is not defined – when an intelligence officer is “carrying out his intelligence duties, efforts, work, activities and functions.”
Human Rights Watch said that lack of cooperation from BIN officials hindered the prosecution of former BIN director Maj. Gen. Muchdi Purwopranjono for the murder of human rights defender Munir bin Thalib in September 2004. After Purwopranjono’s acquittal, an independent team examining the trial in 2010 found that, among other problems, BIN had not cooperated or handed over key documentation that may have been necessary to support the prosecution’s case.
“Indonesian activists are rightly concerned about a law encouraging surveillance of their activities and one that could provide immunity to abusive intelligence agents,” Pearson said.