Badan Intelijen Nasional

By Yveline Ruaud

The Indonesian transition from a 32-years long authoritarian regime to a democracy is internationally recognised as quite a successful process. In doing so, the country has been faced with numerous challenges every new democracy must overcome. It has been confronted to the persistence of a former State apparatus that was used as a control and repression mechanism and must now be reformed to comply with democratic principles and implement new State policies. The reform of the system naturally raises the issue of finding the adequate balance between State security imperatives and civil rights.

This question is at the heart of the new intelligence bill that has recently been passed by Parliament and which now awaits signature by the President.[1] The bill redefines the role and functions of the Indonesian Intelligence Agency (Badan Intelijen Nasional, "BIN") and provides it with several new powers.

The administration of President Susilo Bambang Yudhoyono has been advocating for an extension of the powers given to the BIN while diminishing the oversight and control of its action. This repressive line has raised great concern amongst civil society organizations and had generated an intense debate on specific provisions of the bill.[2] In particular, the controversy has focused on whether it would be appropriate to give the BIN arrest and detention powers, and wiretapping and other intercepts powers without a court order.[3]More important, it has been pointed out that the bill does not provide for oversight and accountability mechanisms; civil society organizations are therefore concerned that this might lead to abuses as they have seen in the past. Indeed, the security threats asserted by the Government are mainly internal ones: separatism, terrorism and sectarianism. As a result, the new powers given to the BIN would mainly target Indonesian nationals and thus present the risk to be used again as a repressive tool. Civil society organizations agree that it is necessary to reform Indonesian intelligence regulations, but require those changes to meet democratic standards and include solid safeguards against human rights violations.

Civil society organizations, scholars, human rights activists and lawyers have been very active since the very beginning of the legislative process and have advocated for a complete reform of the State security apparatus following American and European models.[4] In August 2005, a group of academics published an alternative proposal now known as the Pacivis draft,[5] in which they called for the implementation of intelligence services whose action would be under parliamentarian oversight and in compliance with international standards; the draft was mainly inspired by the American model which separates foreign and domestic intelligence. This proposal shows how Indonesian civil society organizations have sought for more and more involvement into the legislative process, calling for the implementation of international human rights standards. Some of their proposals have occasionally been taken into account in the process of reforming the intelligence regulation. In May 2011, civil society organizations met with Commission I legislators to ask for the respect of democratic and human rights principles in the draft bill, unfortunately few of them were included in the parliamentarian draft. Therefore, their concern about the lack of oversight and accountability mechanisms and the extension of BIN’s powers remain, and they fear a return to past practices.

The debate over a new intelligence bill in Indonesia has begun after the 2002 terrorist attack in Bali. As it is usually the case after such an attack, the government was asked to take action and was pressured to quickly provide a security answer by its population. In those cases, governments often rush into strengthening the anti-terrorism regulations and agencies, to the expense of fundamental civil rights. Indonesia was not the only country that has sought to increase the powers of its intelligence services.

It is essential, when the powers of state agents in charge of domestic and foreign security are being increased, to counter-balance them with efficient oversight and accountability mechanisms. This requirement becomes crucial when the structure you are giving these powers to was formerly part of an authoritarian regime that used it as a repressive tool against its opponents. In this case, the integration of the former authoritarian structure into the new democracy would require very strong oversight and accountability mechanisms, as well as a clear redefinition of its mandate and role, a proper recruitment (ideally from outside the military, considering BIN's past) and training of its staff.

The aforementioned are requirements the new intelligence bill mainly fails to meet. Although the bill seems to head in this direction, it lacks the precise definitions and developments that such legislation requires. It does not define the role and functions of the BIN precisely enough, which creates an overall confusion and an overlapping of the mandates between security agencies, and with law enforcement. For instance, there is no clear distinction between foreign and domestic intelligence as both fall under the mandate of several agencies. In a majority of democratic countries, foreign and domestic intelligence are separated and assigned to two different agencies and many opponents to the bill have asked the government to follow American and European models such as in Great Britain, France or the United States.

The confusion of mandates that persists with the new intelligence bill naturally makes it more difficult to oversee the action of each agency, especially when those mechanisms are not clearly defined and left to a Parliament that is not familiar with such processes and not trained to undertake such control. The loopholes of the bill are also very striking when one considers the lack of accountability mechanisms. Indeed, the bill does not include any investigation or sanction procedure in case of rights violation, nor does it provide for recourse to the courts.

This is not an isolated problem and the Indonesian legal system is crippled by the confusion of mandates and lack of control mechanisms, as it is the case, for instance, with anti-corruption regulations, or international mutual legal assistance (MLA) regulations. Despite their clear legal authority to do so, the Indonesian Corruption Eradication Commission (Komisi Pemberantasan Korupsi, KPK) has not yet successfully claimed effective control of its mandate to supervise and coordinate the anti-corruption law enforcement activities of the Indonesian National Police and the Attorney General’s Office. Similarly, MLA processes run by the Ministry of Law and Human Rights (MoLHR) since its authorization to do so in 2006 are still operating at a sub-optimal level primarily because that shift in authorization was not accompanied with appropriate shifting of resources and administrative preparation.

Giving wiretapping, arrest and detention powers is not a inconsequent act and should not be done without properly rethinking the role of the structure such powers will be given to. The implementation of an effective check and balance mechanism is crucial. Beyond the fundamental need of oversight and accountability to ensure the respect of fundamental rights, the confusion of mandates also creates logistical problems as no clear processes or chain of command are defined in the legislations. This lack of coordination is extremely problematic between intelligence agencies. It will make it more difficult for them to fulfil their mandate, and threatens fundamental liberties as it makes oversight and accountability extremely difficult.

In the aftermath of 9/11 terrorist attacks, numerous countries have followed the lead of the United States and adopted new counter-terrorism regulations that broadened the powers of intelligence agencies and were often seen as liberty-threatening measures by civil society organizations. Indeed, a number of countries have developed practices within the framework of those regulations that have led to serious human rights abuses. Clear examples of such abuses were the British extraordinary rendition flights to the United States.

In 2009, an eight member panel of jurists published in collaboration with the International Commission of jurists (ICJ) a three-year study that shows how the hasty response to terrorism after September 2001 has resulted into human rights violations, including torture, enforced disappearances, secret and arbitrary detentions, and unfair trials.[6]

In particular, the study found that within the new counter-terrorism context, the resources, mandate and powers of intelligence agencies have grown significantly.  They were given new powers of surveillance, arrest, detention and interrogation, in both criminal and non-criminal contexts, thus overlapping with traditional law enforcement prerogatives but without the corresponding oversight and accountability mechanisms. As a result, their role has become central not only at a national level but also at an international level. Agencies have increased transnational cooperation, which created some loopholes in oversight mechanisms and allowed democratic countries to collect intelligence from countries less concerned with human rights principles, sometimes even supporting practices such as extraordinary renditions, secret detentions, enforced disappearances, torture and other proscribed ill-treatment.

The work of the panel of jurists for the ICJ is a good example of the international reaction towards the increase of severe human rights violations. After the general outcry against the abuses in Abu Ghraib and Guantanamo, numerous civil rights organizations have started to lobby for the respect of human rights within the new counter-terrorism context. Major international organizations such as Human Rights Watch, Amnesty International or the International Crisis Group have repeatedly denounced the abuses tolerated in the name of the fight against terrorism. In addition, numerous NGOs have lobbied at a national level not only to ask for the respect of fundamental rights, but also to seek accountability for human rights violations. A network of organizations has thus emerged, especially amongst civil rights NGOs where several “Human Rights and Counter-terrorism” programs were created, and amongst NGOs dedicated to the fight against torture. In particular, there has been a development of litigating NGOs and private lawyers, such as the European Centre for Constitutional and Human Rights in Germany, which is specifically working to ensure accountability for severe human rights violations. It is also important to mention the work of the United Nations Office of the High Commissioner for Human Rights, where the special rapporteurs, working groups and treaty bodies have lobbied for State Parties to respect the commitment they had taken before the United Nations.

Despite the work of the international community, there are still too many abuses and very little accountability for human rights violations in the context of the fight against terrorism. The international response to terrorism has modified the international legal order, thus jeopardizing the established democratic and human rights principles.

The Indonesian intelligence bill seemed to follow the international tendency and was heading towards the establishment of a strong intelligence agency with extensive powers but with literally no oversight, accountability and, consequently, legitimacy. These concerns are not completely ameliorated in the latest form of the bill that has now been passed.

It was indeed necessary to give Indonesian security agencies a coherent legal basis and to redefine their role and functions. Unfortunately, it seems that too many key elements such a reform would require were left aside. It lacks a comprehensive assessment of threats and challenges to national security, a proper consultation with civil society organizations and key actors of the sectors, and the establishment of effective oversight and accountability mechanisms.

As the majority of the civil society has called for, the project should have been postponed in order to address the abovementioned issues and provide Indonesia with an adequate security system that is able to meet the new challenges of terrorism without forgetting the democratic and human rights safeguards sorely acquired 32 years under authoritarian rule.