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Despite bill, BIN may stay 'political pet'
Jakarta Post - March 15, 2011
Rendy A. Witular, Jakarta – After the nation's intelligence agencies have been operating without a firm legal or political legitimation for more than three decades, hopes abound for the latest proposed intelligence bill.
Eight controversial years in the drafting, a proposed intelligence bill was submitted by the House of Representatives to the government for joint deliberation on Dec. 23, 2010
A copy of the draft obtained by The Jakarta Post revealed that aside from establishing a firm legal basis for intelligence operations, the bill has eliminated much-debated provisions authorizing intelligence officials to arrest and forcefully interrogate suspects.
The bill would reinforce the role of the State Intelligence Agency (BIN) as the coordinator of all government intelligence agencies and as the lead agency for intelligence operations. However the draft contains numerous loopholes that might potentially negate its good intentions.
There is no language explicitly prohibiting intelligence personnel from supporting political parties, nor from being involved in politics. The draft also excludes stipulations that would ban intelligence agencies from conducting operations to support politicians in power or to act against their political opponents.
"A willingness to prevent the politicization of intelligence is nowhere to be seen in the bill," University of Indonesia intelligence observer Andi Widjajanto said. "There should be straightforward clauses that ensure the neutrality of intelligence personnel in the political realm," he said.
The intelligence community has been deeply engaged in domestic politics since the time of Soeharto, when it actively supported the strongman's authoritarian regime. Such behavior has continued in the reform era – although to a lesser degree and without igniting public fears.
In 2004, then BIN chief AM Hendropriyono was reportedly involved in a campaign for incumbent president Megawati Soekarnoputri, getting out the vote for her and the Indonesian Democratic Party of Struggle (PDI-P) during the elections.
President Susilo Bambang Yudhoyono named Syamsir Siregar to lead the BIN from 2004 and 2009, in a nod to Syamsir's support while on the campaign trail.
Former National Police chief Gen. (ret) Sutanto, a friend of the President since their days as cadets at the Armed Forces Academy, replaced Syamsir at the BIN after he supported Yudhoyono's re-election campaign in 2009.
"Since their bosses are engaged in politics, there's no doubt that intelligence officials will bow to any request to spying on or cornering their political opponents," said TB Hassanuddin, a legislator with the House's Commission I overseeing defense, intelligence, and information.
Another contentious issue in the draft is the absence of a stipulation requiring the nation's intelligence agencies to uphold human rights and democracy, nor are there clauses levying penalties for their violations.
The need for such protections became evident after BIN allegedly assassinated human rights activist Munir in 2004 onboard a Garuda Indonesia flight heading to Amsterdam.
While the agency denied responsibility for the incident, former Garuda Indonesia off-duty pilot Pollycarpus Budihari Priyanto, who had linked to the agency top officials, was convicted of Munir's murder in 2008 and sentenced to 20 years' imprisonment.
The draft also fails to establish multiple independent layers of supervision at the BIN – a common practice for intelligence agencies in other democracies.
The BIN would be supervised by an honorary intelligence council whose members would be selected by the agency and whose remit would be limited to managing ethics violations inquiries that are forwarded by the agency, under the draft.
While the House of Representatives has authority to supervise national intelligence policies, activities and funding, further stipulations in draft remains sketchy.
The draft also provides no penalties for intelligence officials who work as double agents for other countries.
BIN chief Sutanto said more work would be needed when the draft bill was deliberated, as its primary aim was to ensure that intelligence activities had a legitimate legal and political foundation, something lacking under existing regulations.
"Unlike other institutions, the BIN and other intelligence agencies lack a legal basis to operate," Sutanto said on the sidelines of a Cabinet meeting at the Bogor Presidential Palace in West Java in February. "Since our existence has not been recognized by law, we cannot fully perform our duties," he said.
The BIN and the nation's other intelligence agencies operate under Presidential Decree No. 103/2001 on the authority and administrative of non-ministerial agencies, and Presidential Instruction No. 5/2002 on intelligence coordination.
Institutions such as the Indonesian Military (TNI), the National Police and the Attorney General's Office were all given statutory and political legitimacy through the enactment of specific laws by the House after Soeharto's downfall.
"Due to the legal limits, a person who is under surveillance by BIN agents can actually file criminal charges against them for annoying behavior," Andi said.
Realizing the fragility of the legal basis buttressing their operation, the BIN and other agencies have been drafting an intelligence bill since 2003.
The House has never deliberated previously versions of the bills, citing the presence of controversial articles granting the intelligence community powers that might lead to human rights violations, such as detaining and interrogating suspects without court approval or without informing suspects' families.
Human rights activists have opposed granting such powers, saying it evoked Soeharto's New Order regime, which regularly used intelligence agencies to detain and murder its domestic political opponents and Islamic radicals.
However, the BIN may be backing down since Sutanto took over the agency in 2009. The agency has since intensively lobbied the House to take the initiative in drafting the intelligence bill to limit controversy.
Sutanto is upbeat that the government would agree to the House's version and expected the bill would be passed by the end of this year. However, President Yudhoyono has yet to designate a ministry or agency to review the bill.
Legislator Hasanuddin, who also worked in military intelligence for 12 years, voiced stark suspicions on why the start of deliberations were delayed. "The President himself is benefiting from the status quo, where the intelligence community remains as his political pet."
Key issues in the intelligence bill