An interview with Wahyudi Djafar published by the Asian Human Rights Commission
Wahyudi Djafar, a lawyer and researcher at the Institute for Policy Research and Advocacy (ELSAM) in Indonesia spoke to the Asian Human Rights Commission (AHRC) on the recent judgment of the Constitutional Court concerning the Law on Intelligent. He also shared his observation as well as experience on human rights and legislation trend in the country.
AHRC: Does Indonesia need a law on intelligent?
Wahyudi: Indonesia needs a law on intelligent, indeed. This law is needed to push reform within the state intelligent body is taking place. It is important to bear in mind that, since the fall of the New Order, the only security institutions that have never been audited were the State Intelligent Agency (Badan Intelijen Negara, BIN) as well as other state intelligent bodies, despite the fact that they were used as repressive tools by the authoritarian regime. The bad track records of intelligent bodies in the past, as can be seen in the May 1998 tragedy, have led to many discussions on the significance of the intelligent reform. In fact, in one of its recommendations, the Fact Finding Joint Team (Tim Gabungan Pencari Fakta, TGPF) of the May 1998 mentioned the urgency to draft a law on intelligent which clarifies the main responsibilities, function, and limits of the intelligent bodies’ scope of operation towards the relevant state authorities, so that both national security and human rights can be respected at the same time. The presence of a law on intelligence is hoped to contribute in ensuring an effective oversight on intelligent bodies by monitoring agencies so that such bodies will not be used as a political instrument by particular groups.
AHRC: To what extent was the civil society involved in the legislation process of the law?
Wahyudi: Civil society was involved in the drafting process of the Intelligent Law in the parliament, although it was really limited and not really well planned. Several NGOs were invited by the parliament towards the end of the drafting process. Yet what unfortunate is the groups of victims who experienced the bad intelligent practices in the past were not involved in the process for their voices and opinion to be heard. A group of NGOs were systematically and consistently trying to contribute in the process — from writing a policy paper concerning intelligent reform to conducting public campaign so that public could be more involved in the drafting process. Civil society groups were also actively providing critics and suggestions regarding crucial substances, especially those which are potentially will threat civil liberties and the protection of human rights. We also actively lobbied the member of parliaments and provide many suggestions concerning the intelligent law. The number of our suggestions adopted by the parliament, however, was very limited.
AHRC: The Indonesian Constitutional Court has recently delivered its judgment on the review of Intelligent Law submitted by a group of NGOs in Indonesia. Can you please describe why did the NGOs challenge the law in the first place? Why is the law problematic?
Wahyudi: The Intelligent Law was enacted in a rush in October 2011 — this has led to many substantial problems as most of the contents were too premature. Instead of being a law that serves the purpose of being the guidance for intelligent reform in Indonesia — as it was supposed to be- it contains provisions which are not in complain with human rights and the spirit of reform.
Several articles in the law are threats to the guarantees of civil liberties, human rights protection and the freedom of the press. This law was meant to ensure the accountability of intelligent bodies. But, instead, some of its provisions have given the space for misconduct by intelligent to take place. As a result, this law has failed to reach the aim to reform the intelligent. Given these, we, the Coalition of Advocacy on the Intelligent Law, submitted a review of the law request to the Constitutional Court. Petitioners involved in the review included several NGOs who are members of the coalition, a number of victims of intelligent bodies’ bad practices in the past, individuals who are concerned with the reform of the intelligent, as well as several journalists.
After studying and analysing the law, we came to the conclusion that there are at least 17 problematic provisions which potentially violate the constitutional rights of citizens due to their substances which are not in accordance with human rights and the Constitution. Those problematic provisions include the vague definition on what constitutes ‘threats’ and ‘enemies’; the overly broad categorisation of ‘intelligence’s secret’ which deprive the right to access to information; criminalisation on the basis of leaking intelligence’s secret; the authorisation given to intelligent bodies to ‘dig information’; and the special authority to conduct surveillance which is not in compliance with the right to privacy.
AHRC: What did the government and the parliament say to justify the enactment of such law?
Wahyudi: The government and parliament put the argument that the law is important to legitimise the institutionalisation and the works of the intelligent bodies. According to them, this law will make coordination and control over those bodies. In addition that, the government claimed that the enacted of the law is in accordance with the rule of law principle — as it has created the rules to clarify the limit and monitoring over state intelligent agencies. We, from the civil society, disagree with such opinion provided by the government. With terrible substances it carries, the enactment of intelligent law is not in line with rule of law but, instead, reflects the state’s adherence to the rule by law.
AHRC: What do you think of the reasoning put by the judges in dismissing the claims submitted by the NGOs in the review of the law on intelligent?
Wahyudi: We are of the view that the legal reasoning (ratio decidendi) put by the Constitutional Court in its judgment did not really address the arguments given by the petitioners who claimed that the formulation of some phrases, paragraphs and articles under the Intelligent Law are problematic and not in accordance with the 1945 Constitution. To us, in its judgment, the Constitutional Court only linked one rule with another in the law and had failed to deeply explored the good practices of intelligence’s works in democracy era, neither has it comprehensively examined the discourse concerning national security. As an example, on the issue of surveillance, the Constitutional Court has ‘forgotten’ its previous judgement on Electronic Information and Transaction Law. This means the Court is not being consistent in delivering its judgments. The Court, instead, only referred to its judgments on the Corruption Eradication Commission in 2004 and 2006 which established that surveillance may be conducted as, according to Article 28J (2) of the 1945 Constitution, the right to privacy is a qualified right.
In the judgment concerning the Electronic Information and Transaction Law in 2010, the Court had rightly pointed out the significant of having a detailed and strict regulation concerning the practice of surveillance. It in fact recommended the legislators stakeholders to create a separate law on this so the regulation is centralised. However, in the judgement on intelligent law, the Court is oddly referred to Article 28F of the Constitution on the right to information — which has nothing to do with surveillance whatsoever- when it was actually supposed to analyse under the right to privacy framework which was guaranteed under Article 28 G.
AHRC: Now the Court has decided such law is not against the Constitution, what will be the next steps taken by the civil society?
Wahyudi: After the Court dismissed our claims, we may conduct a legal examination on the court’s judgment, to give comments and annotations on it. We will also guard the drafting process of the executing regulations mandated by the law – both those in the form of government regulations and institutions’ internal regulations; ensure the establishment of sub-commission on intelligence’s monitoring at the parliament; overseeing the implementation of the Intelligent Law to ensure that it is in compliance with legal principles, human rights and democracy. We may also submit another review request to the Constitutional Court on several articles — which is actually possible to do under Article 60 (g) of the Law on Constitutional Court, so long as we provide different constitutional arguments. Re-reviewing the provisions on surveillance under the law, in my opinion, is something really possible to do.
AHRC: How do you see the legislation trend in Indonesia in the last three years? Is it more in favour of human rights?
Wahyudi: On security issues, the enactment of repressive laws such as the Intelligent Law reflects the decline of government commitment to protect human rights. Constitutional legitimisation of Intelligent Law will only reaffirm the existing politic regime at the moment which aims for the expansion of oppressive and repressive power of security institutions, on the name of national security. The tendency to use security approach affirmed by legislations was started with the enactment of the Intelligent Law which was followed by the Law on Social Conflict, the drafting of Social Organisation Bill and, the latest, the discussion on the National Security Bill. The substances being discussed in the National Security Bill are actually similar with those formulated under the Intelligent Law when it was still a bill discussed by the parliament in 2010 to 2011. The government and parliament is somehow a bit reluctant recently to provide adequate human rights protections to its citizens. This can be seen from their reluctance to promptly ratify the Rome Statute and the Convention on Enforced Disappearances.
AHRC: What are things need to be done to ensure that the laws produced by the Parliament are not in violation of human rights?
Wahyudi: In every drafting process of a law, the parliament has not successfully internalised human rights norms, which can be seen from the substances of the bills being discussed or the discussion that raised up during the process. The discussions took place were more on semantics issues and rarely touched the substances of the law — unless the law is considered to have a high strategic value for them. This tendency reflects that there has not been any indicator or parameter used by the parliaments to measure whether a legislative product is in compliance with human rights.
For this reason, the parliament needs to prepare the parameters on human rights themselves to be implemented consistently in every drafting process of a law. It is also essential that the parliament synchronise and harmonise the bills with all relevant international human rights instruments, particularly those that have been ratified by Indonesia. Internalisation of human rights values in every drafting process as well as allowing substantial public participation in the legislation process are also essential — those things should not only be formality. It is the task of civil society to encourage and ensure all of them are implemented by the parliament.
AHRC: What are the challenges faced by civil society in ensuring the compliance of laws and regulations in Indonesia with international human rights standards?
Wahyudi: The low commitment of the government and the parliament in the promotion, fulfilment, and enforcement of human rights is the main challenge. The weak roles of the parliament and the government can be concluded, for instance, from their lack of commitment to produce laws that are ‘human rights-friendly’ and could be used as guidance for the enhancement and protection of human rights. Another challenge is the bad method of synchronisation and harmonisation of legislation drafts with international human rights instruments. Those instruments we have ratified are hardly taken into considerations in the process of legislation that their ratifications are almost useless. The tendency of high political transaction between fractions in the parliament during the legislation process is also a significant challenge. They do not prioritise human rights principles in doing so, but instead, their own interests. Negotiation and transaction of interests like that is what then leads to the enactment of laws that violate human rights.
AHRC: How do you see the role of the Constitutional Court in enhancing human rights protection in Indonesia? Does it help to address the human rights issues ’caused’ by the Parliament in the laws it produced?
Wahyudi: The Constitutional Court should actively contribute to the protection of human rights. The aim of its establishment was to ensure the supremacy of the constitution and to introduce a ‘new human rights culture’ which reflects the commitment to constitutionalism. As rightly pointed by Ruti G. Teitel, the Constitutional Court was created as a response to the possibility of totalitarian ideology’s reborn. The Constitutional Court is the ultimate protector of human rights and the citizens, especially when their constitutional rights are breached. To date, it actually has been quite helpful in correcting the laws produced by the parliament which are incompatible with human rights, although in other instances it also had defended the constitutionality of legislations that we consider to be in violation of human rights. As an additional note, if the checks and balances mechanism is well implemented, the parliament should be given particular attention to recommendations given by the Constitutional Court in each review of law it conducted that the parliament will not do the same mistakes.
The AHRC is not responsible for the views shared in this article, which do not necessarily reflect its own.