Mr. Agung Laksono, DPR Speaker
Mr. Theo L. Sambuaga, Chair Commission I
Dear Mr. Laksono and Mr. Sambuaga:
I write to you on behalf of Human Rights Watch, an international human rights organization based in New York, to offer our suggestions on draft legislation under consideration by Indonesia's National Intelligence Body (BIN).
Although the schedule for the consideration of this bill is unclear, we would like to take this opportunity to convey some of our key concerns with this draft legislation before it is approved by parliament.
To this end Human Rights Watch has prepared an analysis of the January 2002 RUU BIN for your attention. We have also recently come into possession of another draft of the intelligence bill, dated September 5, 2003.
While there are some positive changes in the new draft, it still falls far short of the standards set by both international law and by Indonesia's own Criminal Procedure Code. The new draft fails to address many of the most serious deficiencies in the 2002 draft, which we have elaborated on in the accompanying document.
The new draft streamlines the language of the previous draft, consolidates some of the provisions appearing in the 2002 draft, and eliminates others. Unfortunately, these changes have in many cases only increased the uncertainty about the nature and scope of the powers of BIN and its operatives. For instance, in the new draft, the lengthy and numerous definitions of various intelligence activities have been removed and replaced by a poorly defined reference to 'positive' and 'negative' intelligence. We can only guess that this is a reference to intelligence and counter-intelligence activities (new Article 14 (1)).
Because of overly broad and vague language employed throughout the draft, it remains unclear precisely what types of activities BIN operatives would be empowered to undertake.
The main problems identified by Human Rights Watch in its analysis of the 2002 draft remain. These include:
- Lack of clarity whether or not BIN agents are required to comply with the warrant provisions of the Indonesian Criminal Procedure Code (KUHAP) when conducting searches or detaining suspects.
- The definition of national security (new Article 1 (2)) and the 'intelligence community' (new Article 28) remain poorly defined, as do the provisions on funding mechanisms and the nature of BIN's accountability to the DPR (new Article 27).
- Of particular concern to Human Rights Watch is the fact that the provisions on the death penalty (new Article 34) and criminal penalties for the disclosure of intelligence (new Articles 35-36) have not been removed from the new draft. The provisions on the issuance of firearms (new Article 23) and the immigration powers of the BIN Director (new Article 24) also remain intact.
- The new draft Article 21 reduces the amount of time that a person can be detained to 30 days, where the earlier draft allowed for detention extendable up to 9 months. Although this may reflect an attempt to address human rights concerns, 30 days remains an impermissibly long time to be detained beyond any judicial supervision or control, without being charged with a criminal offense, and without being given the opportunity to be heard before a judge.
One laudable change in the new draft is its omission of what was Article 28 in the January 2002 draft, which explicitly denied those detained under the bill a variety of rights - such as a right to counsel and a presumption of innocence. Human Rights Watch hopes that any future drafts of the bill will include a provision explicitly recognizing those rights, or at the very least, clarifying that persons detained under the bill remain entitled to the rights granted them under the Indonesian Criminal Procedure Code.
We urge you to consider the attached analysis of the January 2002 draft and bear our concerns in mind when this proposed piece of legislation comes before parliament.
Yours Faithfully
Brad Adams
Executive Director
Asia Division
Human Rights Watch
cc: President Mr. Susilo Bambang Yudhoyono
Minister of Justice and Human Rights, Mr. Hamid Awaluddin
Chief, Indonesia's National Intelligence Body, Mr. Syamsir Siregar
Chair Commission III,
