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V.  Arrest and Detention 

Article 26 of the draft gives intelligence operatives the power to “arrest” any person strongly suspected of direct or indirect involvement with a threat to the nation for up to 7 days.⁴⁴  Article 27, however, provides for the “detention” of suspects for up to 90 days for the purpose of interrogation,⁴⁵ extendable up to 9 months,⁴⁶ in a location to be determined by the BIN Director.⁴⁷  “Location” as defined in the Elucidation includes military prisons, as well as police and prosecution detention facilities.⁴⁸

Human Rights Watch is concerned at the extension of the time frame for detention without any criminal charge.  These provisions represent a dramatic departure from the requirements of the Indonesian Criminal Procedure Code.  Indeed, these provisions violate KUHAP requirements for an arrest warrant (KUHAP 18) and extend the length of a preliminary detention from 1 to 7 days (KUHAP 19).  The provisions on detention further extend the total length of detention allowed under the KUHAP, which cannot exceed 20 days without the intervention of some judicial authority (KUHAP 24, Section Two generally). 

The bill makes no provision for a habeas corpus-type proceeding in which detainees or their representatives can challenge the legality of an arrest or detention.  At the very least, it should be made clear in the draft that these provisions do not override provisions in the Criminal Procedure Code such as KUHAP 124, which allows a suspect, family member or lawyer to seek a determination of the legality of a detention before a judge,⁴⁹ and KUHAP 95, which gives detainees the right to seek restitution for an unlawful detention.⁵⁰

Human Rights Watch also expresses concern at the inclusion of military prisons as a possible place of detention of civilians under the provisions of the draft law.   Human Rights is concerned that the use of  military detention facilities may contribute to a lack of accountability and increased violation of detainee rights.

Article 28 explicitly denies suspects fundamental due process rights.  It states that suspects have no right to counsel,⁵¹ no right to remain silent or to refuse to answer questions,⁵² no right to bail,⁵³ no right to house or city arrest,⁵⁴ and no right to communicate to the outside parties including family.⁵⁵  The Elucidation to Article 28 (a) further states that a suspect will not be entitled to a presumption of innocence, and will be considered an “object of interrogation” (obyek pemeriksaan).⁵⁶

Article 30 seems once again to invoke a legal standard of some kind stating that if sufficiently strong evidence (cukup kuat bukti-bukti awal) that the suspect is involved in threatening activity exists, the suspect will be given over to the national police or attorney general’s office for prosecution,⁵⁷ and if insufficient evidence is found, the person will be released.⁵⁸  Article 29 interestingly seems to indicate that information gathered during an intelligence interrogation cannot be used as the basis for an indictment.⁵⁹

Article 28 conflicts with Indonesia’s own Criminal Procedure Code.  Article 28 of the current bill fails to address or directly conflicts with the rights of a suspect as set forth in the KUHAP, including the right to a speedy trial before a judicial body (KUHAP 50), to be informed of the reasons for there arrest (KUHAP 18) and suspicions against him or her at the beginning of an interrogation (KUHAP 51), right to a translator (KUHAP 53), right to a lawyer during interrogation (KUHAP 54),⁶⁰ right to contact family and children (KUHAP 59-60), and the possibility of city or house arrest (KUHAP 22).

Human Rights Watch is concerned that the provisions of Article 28 are also in conflict with fundamental principles of international human rights law on the treatment of criminal suspects.  For instance, the denial of a presumption of innocence is irreconcilable with the International Covenant on Civil and Political Rights (ICCPR) Article 14 (2) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (“Principles”), Principle 36.  The denial of prompt hearings before a judicial authority is similarly incompatible with ICCPR, Article 9 and Principle 11.   The denial of a right against self-incrimination (ICCPR, Article 14 (g)), the denial of the right to counsel (ICCPR Article 14 (3) (d); Principle 17) and the denial of access to family members (Principle 19; Standard Minimum Rules for the Treatment of Prisoners, Rule 37) are similarly troubling.

Human Rights Watch is also concerned at the lack of clarity in the law regarding the relationship between intelligence bodies and the criminal justice system.  The provisions of Article 29 and 30 require clarification in this regard.