"Intelligence Law May Violate Human Rights"

There are at least nine laws which authorize a number of state agencies of wiretapping.

Rabu, 12 Oktober 2011, 15:27 Arfi Bambani Amri
(Antara/ R Rekotomo)

VIVAnews - The House of Representatives passed the State Intelligence Bill after nine years of indecision. A number of crucial articles such as the intelligence agency’s authority of wiretapping were included in the new law.

The Institute for Policy Research and Advocacy (Elsam) assessed that the State Intelligence Law is potential of repressing people or silencing critics. It is considered too premature and insufficient for the law to be applied as a guideline for the reform of intelligence agency, which in the past did a lot of practices that are against human rights and citizens' rights.

One of the provisions attached in the State Intelligence Law that has high potential to threaten citizens' freedom, particularly those related to the privacy rights, is the wiretapping - communications interception, which are not restrictive.

Wiretapping set out in Article 32 of the State Intelligence Law, though seemingly provides restrictions and requirements for intelligence agency to its authority, is not enough to provide protection for citizens.

In principle, according to Elsam, from the aspect of the function and authority, the state intelligence agency are duly authorized to conduct interception of communications or wiretapping. But the rules stated in the Act instead have the potential of violating human rights.

In international practice, the law governing the wiretapping authority for intelligence agencies must firmly set on the following matters: (1) interception measures that can be done, (2) the purpose of the interception, (3) object-categorization of the intercepted individuals, (4) the threshold of suspicion- the initial proof required to justify the use of interception measures, (5) the regulation on the duration restriction of the interception, (6) procedures for authorization, licensing, and (7) supervision and review of the conducted interception.

Strict provisions shall apply to the communications interception activity, because this activity is an action that restricts a person's human rights, particularly related to one's privacy rights. In the context of Indonesia, a similar assertion is also provided by a number of national laws and regulations, such as the provisions of Article 32 of Law no. 39 of 1999 on Human Rights and Law no. 12 of 2005 on the Ratification of the International Covenant on Civil and Political Rights (ICCPR).

This provision is further enhanced by the Constitutional Court in several rulings. At least three of the Constitutional Court’s rulings which specifically confirm the guaranteed privacy right and its relation to interception communication purposes by the state apparatuses, within the framework of law enforcement. Finally the Court affirmed in its ruling on case No. 5/PUU-VIII/2010 on the test of Article 31 point (4) Law no. 11 of 2008 on Information and Electronic Transactions.

In consideration of the legal ruling, the Constitutional Court stated that the wiretapping is an act that violates the privacy of others and therefore violates human rights, but for the broader national interest, such as law enforcement, these rights can be restricted. According to the Constitutional Court, the provisions in the law will ensure the transparency and legality of wiretapping.

Currently in Indonesia, there are at least nine laws which authorize a number of state agencies of wiretapping, with different mechanisms. The nine laws are: (1) Chapter XXVII WvS on Profesional Crimes, (2) Law no. 5 of 1997 on Psychotropic Substances, (3) Law no. 31 on 1999 on Corruption Eradication, (4) Law no. 36 on 1999 on Telecommunications, (5) regulation in lieu of law (Perpu) No. 1 of 2002 on fight against terrorism, (6) Law no. 18 of 2003 on Advocates, (7) Law no. 21 of 2007 on the Eradication of the Human Trafficking Crime, (8) Law no. 11 of 2008 on Information and Electronic Transactions and (9) Law no. 35 of 2009 on Narcotics.

In addition to the nine laws, there are also at least two government regulations, and two Ministerial Regulations, which regulate wiretapping, namely: (i) Government Regulation No. 19 of 2000 on the Joint Team of Corruption Eradication, (ii) of Government Regulation No. 52 of 2000 on Telecommunications Services, (iii) Information and communication Minister Regulation No. 11 of 2006 on Technicalities of Information Wiretapping, (iv) Ministerial Regulation No. 01/P/M.KOMINFO/03/2008 on Recording Information for the interest of State Defense and Security.

Therefore, in line with international practice and international human rights law, the regulation on granting special authority to intelligence agency for wiretapping - of communication interception, in the State Intelligence Bill, it is sufficient to state about the granting of authority to conduct wiretapping or interception. The rest, regarding authorization, procedures, supervision, and the use of wiretapping, as well as the mechanism for the victims’ complaint, must refer to other regulations (the laws on wiretapping).

The wiretapping in particular in the State Intelligence Law has clearly deviated from what is mandated by the Constitutional Court's ruling, which requires the centralized regulation on wiretapping law. Not in accordance with the Constitutional Court’s ruling, the legislators instead made the State Intelligence Law into a special statute governing wiretapping conducted by intelligence agencies, and free the intelligence agencies from the compliance to the rules that must be set in the wiretapping laws.

Another concern due to the provision of wiretapping in the State Intelligence Law is associated with many institutions which are authorized to tap, if the agency is part of the state intelligence elements. Apart from State Intelligence Agency (BIN), the TNI and the Police Intelligence Service also the ministry intelligence are also given authority for tapping. This is certainly a very large threat against the protection of civil rights, which is strictly and constitutionally guaranteed by the 1945 Constitution.

Another problem regarding the State Intelligence Law is related to the vagueness of complaint and recovery mechanism. Although in the provisions of Article 15 of the State Intelligence Law governing the availability of recovery for victims of intelligence operation practice, they do not expressly regulate the mechanism of the provided recovery accessible for the victims.

On the other hand, this law actually provide heavy sentence of offence for those who are considered leaking secret intelligence information. Any person who intentionally, or due to negligence commits this can be sentenced to 10 years in prison and 7 years in prison. This means, besides putting the civil liberties and human rights protection in danger, the birth of the State Intelligence Law also has spawned a new criminalization regime against citizens.

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