Proposed Revisions Regarding The Anti-Terror Law
On Monday, 31 August, the Ministry of Politics, Law, and Security (Polhukam) proposed to the House of Representatives Commission I for the Anti-Terrorism law to be revised, especially on the addition of 2 year arrest and detention, the involvement of BIN/TNI in the handling of terrorism, and the establishment of the Counter Terrorism Coordination Body (BKPT).
We do respect the government's desire to combat terrorism more seriously. But all three of these suggestions are excessive and immeasurable. These suggestions mix strengthening the role of law enforcement and defence capacity, potentially even giving rise to human rights violations which definitely go against the constitution and law. We ask the Parliament to be critical. If not, we fear that the Anti-Terror Law revisions of repeating the practices of Law No.11/PNPS/1963 on Anti-Subversion which is excessive & used solely for the sake of power.
Below is an explanation why the proposal is undisputed.
First, the proposed addition of up to 2 years imprisonment by reference to the UK is an inappropriate example. Jurisprudence of the European Court of Human Rights on the United Kingdom has stated that arrest from 1 to 2 years cannot be justified as proportional for a real threat. It is even more wrong to reference Malaysia which has done the fatal mistake of exploiting this authority to silence oppositions. Two year arrests are no longer arrests, but a form of incommunicado detention, kidnappings that resemble disappearances by force. This is a severe violation of human rights.
Secondly, strengthening the role and authority of TNI/BIN in handling terrorism would never be effective because of the capacity of these institutions is not as enforcers of law, and is also prone possibilities of severe human rights violations. The assassination case of human rights activist Munir began from a BIN letter labelling a 'terrorism threat' & asked Garuda to appoint Pollycarpus as staff member of the Garuda civil aviation security, and then poisoned Munir. This act was not securing a flight, but secretly murdering an activist. We regret that the investigation has not been concluded. (See attachment).
The government and the house of representatives must distinguish the concepts of so-called Military Operations Other Than War (MOOTW) from the Military Aid to Civil Authority (MACA), which is 'military assistance to civil authority' which consists of Military Aid to other Government Department (MAGD), Military Aid to Civil Power (MACP), and Military Aid to Civil Community (MACC). The government must be careful when referring to the USA example. The USA uses MOOTW for assistance towards civilian governments in foreign countries. When domestic, these three alternatives of military aid are used.
TNI involvement in military operations (MOOTW) absolutely requires ‘state policies and political decisions’ according to Article 7 paragraph 3 of Law No.34/2004 on the TNI. While the involvement of TNI in military aid for the INP requires a Government Regulation (PP), according to Law No.2/2002 on the Police Article 41 which states that "In order to carry out security duties Police may ask for military aid which is further stipulated by Government Regulation". Or Article 4 paragraph (2) of MPR Decree No. VII, 2000, which states that: "TNI provides assistance to the National Police in the context of security according to requests stated by Law."
Meanwhile, Article 10 paragraph (3) of Law No 3/2002 on the Explanation of Defense states that "Military operations other than war, including the form of humanitarian aid (civic mission), aid to the Indonesian National Police for public order, assistance to the civilian government ... .. "
The meaning of aid above is that aid is supported by laws and regulations regarding the requesting and execution of aid. The procedure will regulate, among others, the official with authority to request and execute aid, the number of personnel and equipment required, command and control, operating costs during aid, the end of the aid, prolonging of aid, and various other technical requirement.
In addition, the utilization of the Armed Forces outside of defence must begin with the solving of cases of violence from the past, both in the name of upholding the law, stability, security and development. The President’s statement 'reminds' Kopassus that mysterious shootings, kidnappings, and Munir must be supported by and objective legal process. This is to protect the innocent TNI soldiers, so that they would not be blamed in human rights violations.
Third, the suggestion for the establishment for a new body (BKPT) is an indication of the lack of internal coordination among the ranks of the Menko Polhukam. This shows the terrorists the government’s weakness. The new body is predicted to be ineffective, because the need of resources still originates from existing governmental institutions, or it can create conflicts like between the KPK, the INP, and prosecutors. What is needed is not a new body outside the mandate of the Law, but whether such coordination has been conducted and evaluated?
RKP 2007 affirmed that the Polhukam was responsible for coordinating Polhukkam related government agencies such as the Ministry of Home Affairs, TNI, BIN and INP, each of which already have anti-terror desks. A substantial budget has also been allocated. (See 2009 Perpres and Bappenas documents attached)
The formation of BKPT should be replaced with the immediate establishment of the National Security Council (DKN) according to the mandate of Law No.3/2002 on State Defence. In this institution will the country's political decisions of national security be formulated.
The three suggestions above reflect the unchanged views and handling methods of terrorism. This logic used still imitates the Megawati administration when facing the Bali bombings I by increasing the power of excessive state institutions.
We urge the President of the Republic of Indonesia to remain his approach of law and human rights supremacy, not through the excessive power of state institutions. The President should urge the ministries on Polhukam to increase the INP’s national and trans-national community policing capacity. For example, the optimization of community policing (CP) which has been set by Perkap No.7/2008 in order to corner the movements of terrorists, whether domestic or trans-national, by strengthening the ASEAN Anti-Terrorism mechanisms by extra-territorial investigation cooperation, mutual legal aid, the securing of assets and results obtained from terrorism, exchange of evidence, expertise, training, and extradition and protection for witnesses/victims.
The prevention of the recurrence of human rights violations can be controlled by laws on human rights that have been used as guidelines of state institution duties. For example, Perkap No.8/2009 on the Implementation of Human Rights Principles and Standards in INP Duties.
Jakarta, September 2, 2009