Countries are rearranging strategies and security systems to achieve national interests amid the complex threats that emerged after the Cold War — a situation exacerbated by globalization, democratization, human rights, technological advances, rapid information exchange and intra-state conflicts.
Changes in a nation’s strategy and security systems have often been conducted under security sector reform programs by many countries, including Indonesia.
During the reform era, Indonesia’s security sector reform agenda recorded positive achievements, such as the enactment of the Defense Law, the National Police Law and the Indonesian Military Law.
However, those achievements failed to comprehensively regulate the security sector, specifically Indonesia’s intelligence community. So far regulations on national intelligence bodies are covered only by presidential decree. Due to that concern, the House of Representatives drafted a bill on intelligence.
Enacting an intelligence law should be part of the intelligence reform agenda. Therefore, the law should not only be aimed at strengthening the capacity of intelligence agencies but also re-arranging the structure and functions of their activities in a democratic way.
There are several basic democratic principles that the House’s proposed bill should not miss include human rights, civilian supremacy over the security sector, the division of responsibilities, a legal foundation, political non-partisanship, transparency and accountability.
Unprofessional and ineffective intelligence communities are characterized by excessive military influence, misuse of intelligence agencies for political interests, extra-constitutional activity, a lack of legal liability for malfeasance and a lack general and budgetary of oversight.
Unfortunately the House’s intelligence bill contains various weaknesses as it has not fully accommodated democratic principles.
The human rights NGO Imparsial, for example, expressed concern on the unlimited authority to intercept communications given by the bill to the nation’s intelligence agencies.
Based on a Constitutional Court decision in February, another rights group, Elsam, insisted that eavesdropping be regulated by a new law, separated from the proposed bill on intelligence.
Meanwhile, the National Commission on Human Rights is concerned about the absence of a complaint mechanism for citizens who might fall victims to abusive intelligence operations. In some cases, intelligence information might be used to support private political or economic interests.
There is no doubt that Indonesian intelligence agencies need the authority to intercept suspicious communications.
However, such authority needs to be regulated by standard procedures such as the prior consent of a court or prosecutor. Unfortunately, the intelligence bill fails to require such oversight.
Furthermore, the definition of intelligence information secrecy as stated in articles 24 and 39 of the bill is not sufficiently specific and may lead to multiple interpretations and threaten the freedom of information and the freedom of press.
Moreover, the government proposed that the final bill authorize intelligence agencies such as the State Intelligence Agency (BIN) to make arrests. This authority might violate human rights as it may legitimize abductions considering the secretive nature of intelligence operations.
The BIN and other intelligence agencies are not law enforcement agencies and should be kept separate from law enforcement institutions. Under the rule of law, arrest authority is the sole province of law enforcement agencies such as police or prosecutors.
Giving intelligence agencies arrest authority might not only undermine the criminal justice system but also lead to overlapping authority among security actors.
The BIN’s primary function is to collect, process, select and analyze information that will be submitted to the President or other authorized stakeholders.
In addition, intelligence agencies have the authority to conduct covert and counterintelligence operations. However such operations cannot be carried out against citizens or institutions but only against foreign powers.
Intelligence should serve as tool to support foreign policy and be aimed at foreign governments or people or groups outside the country.
In order to enhance intelligence accountability, multiple levels of oversight should be established and conducted not only by the House but also the intelligence community itself, in addition to executive oversight, judicial oversight and popular oversight.
In an organizational context, the structure of the intelligence community should be differentiated through a strict division of job areas such as foreign intelligence, domestic intelligence, military intelligence and law enforcement intelligence.
Unfortunately, the substance of the intelligence bill focuses on a new body called the National Intelligence Coordinating Body (LKIN).
There were cases previously when intelligence agents or other security actors had to obey the decisions of their commanders although they violated the law and human rights. As a result, operational intelligence agents were brought to court but their superiors enjoyed impunity.
Therefore, it is important to regulate the objection and complaint mechanism for intelligence agents when it comes to the potential for an operation to break the law.
Such objections and complaints should be addressed to the intelligence commission in the House before the operation is conducted. This mechanism is important to prevent human right violations.
Finally, the intelligence bill should consider the balance between national security and personal liberty.
Al Araf is the Imparsial program director and Diandra Megaputri studies defense management at the Indonesian Defense University.
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