Quo Vadis Revision of Antiterrorism Law

After the terrorist attacks on Jl. Thamrin in Jakarta, the government finally realized its plans to encourage changes in Law No. 15/2003 on the eradication of criminal acts of terrorism. The government argues that the law is inadequate to tackle threats of terrorism.

Drafts for the amendment of the law have thus far been submitted by the government to the House of Representatives and will be deliberated at the level of a special committee, a combination of members of Commission I and Commission III.

In its development, the draft bill has garnered criticism from civil society. The addition of a number of new authorities in the drafts proposed to the House show that the direction of the substance of the bill tends to reinforce the state's power and further strengthen the nature of the draconian antiterrorism law. A number of new articles have the potential to result in violations of human rights.

The death of suspected terrorist Siyono, which happened recently, should have been a serious note to evaluate terrorism handling. His death reminds us that terrorism really has to be tackled.

However, its implementation, which is excessive, without any effective supervision, as well as the absence of accountability, is certainly very dangerous. It seems as if we have never learned from our bad experiences in combating terrorism, which has lead to erroneous shootings and wrongful arrests.

The threat of terrorism, of course, has to be addressed because, as seen in a number of cases, it ignores the principle of discriminatory targets. Public facilities and civilians frequently become targets of terrorist actions to send a message.

With a threat as serious as terrorism, the state policy to address it not only constitutes a necessity, but an obligation. The state is required to guarantee and ensure a sense of public security. However, given the complexity of the roots and problems of terrorism, the policy to tackle terrorist threats by the state must be comprehensive, with the aim of preventing terrorism potential and narrowing the space for terrorists to move. The legal approach is only one of the instruments in the policy on antiterrorism.

The legal approach to combating terrorism should be constructed and operated in harmony with the principles of rule of law, respecting the democratic state structure and ensuring the protection of human rights.

In a democratic society, the law functions to give, define and regulate the implementation of state authorities. Regulating the limits of the authorities should be as clear as possible, as well as measurable, so that the law can protect the rights of citizens from any possible abuses of state power.

Crucial issues

The bill being proposed even tends to increase state power through the addition of new excessive authorities. At the same time, it ignores principles, standards, legal norms and human rights. The bill includes new provisions that are problematic and have the potential to result in human rights violations.

First, the issue of an extension of the detention period. Article 28 of the bill states that investigators are authorized to detain for 30 days people suspected of committing criminal terrorist acts.

Compared to the detention period set in the Criminal Code (KUHAP), which is 24 hours, and the seven days in the current Antiterrorism Law, the detention period extension regulated in Article 28 of the bill is too long.

This could lead to human rights abuses, such as violence and torture, amid weak supervision and accountability. The detention period regulated in the current Antiterrorism Law and KUHAP is already sufficient for law enforcement officials to tackle terrorist acts. It has thus far been proven that with a detention period of seven days, law enforcement officials have been able to uncover and arrest people involved in various groups of terrorists in Indonesia.

Extending the detention period from questioning until investigation in court to 300 days is also problematic. This not only has the potential for human rights violations, it also means people have the legal status of a suspect for too long until the court issues a verdict as to whether or not he or she is guilty.

Compared with KUHAP's 170 days, the extension clearly will harm the rights of suspects to be tried in a legal process that is quick, simple and low cost.

The bill also has the potential to violate freedom of opinion and expression, as seen in the clause on criminalization of the dissemination of certain expression forms as regulated in Article 13A.

The criminalization clause has been formulated in a very widespread and multi-interpretative way. The phrase "can encourage acts or violent actions" can be interpreted subjectively by different audiences. This article has the potential to limit and criminalize legitimate thoughts and expressions.

Another serious problem in the bill is Article 43A paragraph (1), which gives new authority to investigators and public prosecutors to put particular persons in certain places for six months for deradicalization programs, which is similar to soft detention. The deradicalization program approach is not only wrong but also very dangerous. This provision could be used to create detention camps and has the potential to result in violence and torture.

The principle of setting democratic security governance is also violated in the amendment bill. Article 34B places the involvement of the Indonesian Military (TNI) in combating terrorism in the framework of assisting the police.

The involvement of TNI is enabled as part of a military operation other than war. The involvement of TNI should not be regulated in this bill, but in a bill on assistance tasks, which must comprehensively regulate prerequisites, mechanisms and procedures for TNI's assistance assignments.

With the extensiveness of the scope included in the prevention of terrorism and the absence of clear-cut regulations on the prerequisites and mechanisms for TNI's assistance, this clause is dangerous because it allows for the involvement of TNI in all counter-terrorism aspects under the pretext of assistance, starting from prevention to prosecution. The involvement of TNI will certainly have the potential to disrupt and damage the mechanism of the criminal justice system.

Furthermore, Article 31 of the amendment bill, which gives authority to investigators to wiretap without consent from the court's head, has the potential for misuse and violates citizens' privacy rights.

The wiretapping issue should refer to the decision of Constitutional Court No. 5/PUU-VIII/2010, which states that wiretapping should be regulated in a separate rule of law. This is necessary to ensure control mechanisms and accountability.

Balance is needed

The deliberation of anti-terrorism legislation as a legal umbrella to overcome terrorism threats is really necessary and should be carried out. However, it is important to remember that the legislation must be formed in line with the interests of protecting citizen rights.

At this point, establishing a balance between security and freedom is very important in antiterrorism legislation so that the prevention of terrorism threats does not create further terror in the public.

Liberty and security of person are the rights of every citizen and, as well as not being able to be reduced in any circumstances, they also cannot be separated. It is very dangerous if a state acts with the mistaken belief that fundamental rights can be mutually replaced. In formulating antiterrorism policies, the state has to fulfill its obligations correctly: placing protection of freedom in a permanent state of balance with protection of security of person.

by Todung Mulya Lubis

source Kompas, Tuesday, July 12, 2016