- The Selection Process of Indonesia Ombudsman Commissioner Hampered in the House
- Mistake of Thinking in Discourse to Expand State Intelligence Agency (BIN) Authority
- National Security Bill as a Threat for Democracy
- The Incomplete Plan in Reviving the Guidelines of State Policy (GBHN)
Legal Policy
The Selection Process of Indonesia Ombudsman Commissioner Hampered in the House
By the end of November 2015, President Joko Widodo had provided the House with the names of 18 candidates for the position of the 2016-2021 Indonesian Ombudsman Commissioner. But the latest report said that the House had not yet conducted the fit and proper test of the candidates due to the allegation of an ethical violation by the President’s selection committee.
In a public hearing held on January 13th, Asosiasi Pemerhati Parlemen Indonesia (APPI) reported an allegation to the House of a violation of ethics by the selection committee based on the communication between two members of the selection committee with several individuals from NGOs in a Whatsapp group named “Kawal Seleksi ORI” (Oversee the Indonesian Ombudsman Commissioner Selection). Questions have been raised about a conflict of interest between the parties with the possibility that several candidates from the NGOs were prioritised above other potential candidates. Several days later, the allegation was clearly refuted by the selection committee when they were formally called by the House. The selection committee stated that the Whatsapp group was made by the NGO members, not by the selection committee. Moreover, the Whatsapp group had limited use as a communication and aspirational forum and that there was no such conspiracy. But the clarification presented by the selection committee was apparently not enough for the House, which seems to retain the position that they will return the names of the candidates to the president.
There are still many questions raised by responding to this issue. Firstly, whether the House can reject and send back the names submitted by the president? Secondly, whether the House has authority to make a determination about the allegation of the selection committee’s ethics violations? There is currently no law that specifically regulates this issue. The existing regulation on the matter of Ombudsman selection; Article 16 par 2 of Law No. 37 Year 2008 on the Indonesian Ombudsman, states that the House must select nine of the candidates submitted by the president within a maximum 30 days after receiving president’s letter. It is expected that the House will continue to use their power in line with the law. (ED)
CSO Initiatives
Mistake of Thinking in Discourse to Expand State Intelligence Agency (BIN) Authority
Discourse to revise Law No. 15 Year 2003 on the Amendment of Regulation in Lieu of Law No. 1 Year 2002 on Combating Terrorism continues after the terror attacks in the Thamrin area last week. One of these revised proposals is to expand the authority of the State Intelligence Agency (Badan Intelijen Negara/BIN). Sutiyoso, BIN Chief, said that BIN should be given more authority to arrest and detain people presumed of involvement in acts of terrorism. BIN asserts that this expansion of the current authority will optimise BIN’s terror preventing capability. BIN further asserts that speculation that terror is being used as an excuse for the expansion of its authority is incorrect.
Arrest and detention of a suspect can only be made by investigators with sufficient evidence. BIN is not an investigatory body which has authority to arrest and detain, especially of people who are identified -not suspected- with involvement in acts of terrorism recently. BIN was formed with the view that it needed early detection and warning to ward off threats that endanger the existence and integrity of the country. Equipping BIN with authority to arrest and detain will not solve the problem of terrorism, but would add new problems due to overlapping authority with other institutions. Safe implementation of the investigative function and correct coordination of BIN to prevent threats to national security should be precisely evaluated.
The current State Intelligence Law stipulates that BIN will coordinate the military and police to investigate persons identified by their intelligence. Meanwhile, Terrorism Law stipulates that to obtain sufficient preliminary evidence, investigators can use intelligence reports. Through these arrangements, BIN actually can optimize existing authority to prevent the threat. This optimization includes BIN tasked with finding people who are presumably involved in acts of terrorism providing information which is sufficient preliminary evidence for investigators to follow up. Therefore, the evaluation of the implementation of the tasks and the authority held by BIN is more important than expanding the authority that is currently with other institutions. (MS)
Legislation
National Security Bill as a Threat for Democracy
The government has proposed the National Security Bill to be part of the 2016 National Legislation Program (Program Legislasi Nasional/Prolegnas) for the fourth time. The first proposal was in March 2011, the second in September 2012, the third in October 2012, and the fourth in September 2015. This Bill could pose a threat to democracy because a number of its provisions indicate a restriction of the civil society movement and open up a space for the military to have more authority. Besides that, the concepts contained in the Bill can lead to the return of an anti-democratic regime.
The National Security Bill also contains several provisions that are contrary to the spirit of democracy due to potential to cause security lapses. These lapses may be due to military threat, armed threat, or unarmed threat. The elucidation of Article 11 Paragraph (3) of the National Security Bill determined that one of the unarmed threats is errors in the drafting of the regulation which render it contrary to the Pancasila and the 1945 Constitution (UUD 1945). It would be a major problem if the legislators, namely DPR and the Government, can be regarded as a threat to the state. Moreover, there are no further explanations about the description and restrictions against errors in the drafting regulation.
There is a mistake in the plans for the National Security Bill that gives sanctions against incorrect drafting of the regulation. The 1945 Constitution and several laws have stipulated the correct mechanism for situations where there are legal norms contrary to the 1945 Constitution; namely judicial review in the Constitutional Court (MK). The conclusion made by MK was that norms of Law will be cancelled where they are proven contrary to the Constitution. Thus, the National Security Bill itself was contrary to the Constitution, because it provides for the easy criminalization of the legislators. It should stipulate the provision for fixing the substance of the Law as through the various mechanisms that are already available. To this day, there are still many laws being annulled by MK. This fact proves that the sanctions for errors in the drafting regulation on the National Security Bill would be counter-productive for the development of democracy in Indonesia. (IHM)
House of Representatives
The Incomplete Plan in Reviving the Guidelines of State Policy (GBHN)
After winning the 2015 legislative election, the Indonesian Democratic Party of Struggle (PDI-P) held their National Working Meeting (Rakernas) this month. The meeting resulted in a decision to address the ineffective existing pattern of national development by introducing an option to restore the People’s Consultative Assembly’s (MPR) authority to re-establish the Guidelines of State Policy (GBHN). Zhulkifli Hasan, chairman of the Assembly, expressed support for the plan to reapply the Guidelines. In fact, he stated that the Agency for the Assessment Assembly will be included in this discourse for discussion and further study.
These guidelines for long-term development were influential during the Old Order and the New Order eras. The guidelines were approved by the Assembly who enforced the President’s compliance with them. Presidential action contrary to the guidelines amounted to grounds for his dismissal by the Assembly. The guidelines were eliminated as part of the reforms in the 1945 Constitution amendment in 2000-2002 with the other functions of the Assembly. In the current system, the guidance and direction for development are stipulated in Law No. 25 Year 2004 on National Development Planning System.
Reintegration of the guidelines will result in the Assembly’s function returning to that under the New Order. This will invite many questions regarding the state system. Who will be responsible to implement these guidelines? Most likely, the Assembly will write the guidelines and the President will enforce them. However, the President is responsible only to the people who directly elect them; will the Assembly return to its place as the paramount institution determining the direction of the country? These questions must be answered with strong argument if this function to construct the guidelines is returned to the Assembly. (KFL)