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IV.  State Secrets and Criminal Penalties for Disclosure

The General Provisions of the Elucidation simultaneously invoke the benefits of increased transparency⁴⁰ and reiterate that any intelligence organization must function in a closed (secara tutup) manner.⁴¹  The underlying principle of state secrecy is further reiterated in Article 11 (1).⁴²  Article 15 seems to grant a blanket power to maintain complete secrecy about intelligence activities conducted by BIN or by members of the Intelligence Community under BIN’s direction.⁴³  Of particular concern to Human Rights Watch is Article 47, which mandates the death penalty for persons convicted of working for foreign intelligence.

Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty, irreversibility, and arbitrariness. Human Rights Watch strongly urges that the provision for capital          punishment in Article 47 be removed from the bill.

Human Rights Watch finds the provisions on the intentional and negligent leaking of state secrets to be particularly troubling.  Article 48 provides for a criminal sentence of up to 20 years for individuals intentionally leaking state secrets.  Article 49 provides for a criminal sentence of up to 5 years for negligently leaking state secrets. 

Human Rights Watch is concerned that criminal provisions punishing the intentional or negligent leaking of state secrets might be used to intimidate or imprison Indonesian journalists or “whistleblowers” exercising their right to report on government activity.  The penalties proposed in draft Articles 48 and 49,  in light of the overbroad and ambiguous language in the Bill, are excessive.  A five-year penalty for the negligent leaking of state secrets, if enforced, would likely lead to serious self-censorship in the press, and the threat of such severe criminal penalties could be easily abused by unaccountable intelligence officials to silence critics or discourage journalists from pursuing legitimate stories.  Human Rights Watch suggests that if such provisions are left in the bill at all, the crimes should be narrowly construed and contain adequate safeguards to prevent their misuse, such as by allowing for  a “public interest” defense in the language of Articles 48 and 49.