State security bill must not be signed<\/p>\n
By Matthew Draper and Yuli Swasono<\/p>\n
JAKARTA (JP): There are strong fears that President
\nAbdurrahman Wahid plans to quietly sign the state security bill
\nin the coming months. This is the same act that led to widespread
\nprotests in September 1999 that ended in soldiers fatally
\nshooting at least two students.<\/p>\n
Last year the government contended that the President was
\nwaiting until the public better understood the law before signing
\nit, but the true reason was that many believed the military would
\ninflame conflicts, forcing the government to declare a state of
\nemergency and grant the military greater power.<\/p>\n
Given the absence of accountable, democratic institutions
\nnecessary for limiting abuse of emergency powers, the bill, if
\nsigned, would lie around like a loaded gun waiting to go off.
\nBefore Indonesia can begin to reduce separatist and sectarian
\nviolence, it must first control and professionalize its armed
\nforces.<\/p>\n
Yet the government must move quickly to reduce violence now.
\nIn fact, it appears that the government's embarrassing failure to
\ncontrol the fighting in Maluku -- by declaring a \"civil
\nemergency\" under an old, outdated emergency law -- has led to the
\ndecision to sign the bill.<\/p>\n
The challenge for the government will be to come up with a law
\nthat can speedily bring conflicts to an end while restraining the
\nmilitary and protecting human rights. In its current form, the
\nbill fails to do so.<\/p>\n
Last year the government promised the United Nations it would
\njoin the International Covenant on Civil and Political Rights
\n(ICCPR) in 2000. The ICCPR requires signatories to follow certain
\nprocedures during a state of emergency and respect certain basic
\nhuman rights at all times. Law No. 23\/1959, the bill and the 1945
\nConstitution all contain provisions that contradict the ICCPR's
\nrequirements.<\/p>\n
Accession to the ICCPR therefore presents an excellent
\nopportunity to improve the proposed emergency law. In addition,
\nthe People's Consultative Assembly (MPR) should bring the
\nConstitution in line with the international standards to which
\nthe government has already said it would agree.<\/p>\n
Any proper emergency law would require a bona fide emergency
\nand the approval of legisature before the president could declare
\na state of emergency. This would directly contradict Article 12
\nof the 1945 Constitution, which gives the president total
\ndiscretion.<\/p>\n
Many other countries have emergency laws, but few have
\nmilitaries like Indonesia's. The militaries in countries like the
\nUnited States and Germany are under civilian control and have no
\npolitical role. This is not the case with the military in
\nIndonesia. Even though the Indonesian Military says it is trying
\nto reform itself, it has yet to follow through.<\/p>\n
If we are to have hope that emergency powers will be used
\nresponsibly in Indonesia, the Constitution and the bill should be
\namended to conform to certain internationally accepted
\nprinciples.<\/p>\n
First, every declaration must have the approval of the
\nlegislature beforehand, or, in an extreme emergency, within a
\nweek of the president's declaration. Although the bill requires
\nreports from the provincial government and \"consultations\" with
\nthe House of Representatives (DPR), it is the president
\nultimately who has sole authority to declare a state of
\nemergency.<\/p>\n
The failure of the bill to require the president to gain the
\nlegislature's approval violates the principle of separation of
\npowers and hands the president a legal method to use the military
\nto destroy the constitutional government. The DPR's involvement
\nwould also force the government to find other, nonviolent ways to
\naddress the conflict before seeking approval for a declaration of
\na state of emergency.<\/p>\n
Second, emergency situations should last only three months and
\nshould only be extended after the legislature's thorough
\nevaluation and approval. With the bill, a state of emergency can
\nlast six months and the government can continue to use its
\nemergency powers for another three months after the emergency has
\nofficially ended. Under the bill, a declaration of an emergency
\nis a blank check for the government to use repressive measures
\nfor up to nine months.<\/p>\n
Third, if the government fails to properly excuse its duty or
\nif the emergency has ended, the legislature should be able to end
\na state of emergency at any time by majority vote. The bill gives
\nthe House no such oversight authority. It is critical that during
\ncrises, the democratic government continues to function.<\/p>\n
Related to this problem is the military's functional
\nconstituency representatives in the legislature. They cannot be
\nexpected to have the best interests of the country in mind as
\nthey vote for an act that would give them sweeping powers.<\/p>\n
Fourth, any emergency measures must be strictly limited to
\nwhat the situation requires. The bill mentions the principle of
\n\"proportionality\" as one of its goals, but stipulates no
\nprocedures to ensure that it is followed in reality. The use of
\nmilitary violence should not be the government's first reaction
\nto every problem. Peaceful alternatives to settling conflicts
\nshould be fully explored first.<\/p>\n
Fifth, all emergency measures must be applied in a
\nnondiscriminatory manner. The government, police and military
\nmust treat people equally, regardless of their race, religion,
\ngender, language and social class.<\/p>\n
The bill entirely overlooks this important requirement. As the
\nconflict in Maluku demonstrates, nondiscrimination is a
\nfundamental requirement if military intervention is to not make
\nmatters worse. It is the government's obligation to work toward a
\nsociety based on equality and justice. The government must follow
\nthis policy, especially during emergency situations.<\/p>\n
Another key issue that the bill completely omits is
\nnonderogable rights. The drafters of the bill, citing the
\nUniversal Declaration of Human Rights, claim that all human
\nrights are relative. This claim directly contradicts the ICCPR,
\nwhich the government has promised it will accede to this year.<\/p>\n
The following rights may not be violated, even during times of
\nemergency, under the ICCPR: the right to life, recognition as a
\nperson before the law, right to freedom of religion, as well as
\nfreedom from torture, slavery and retroactive criminal laws and
\npunishments.<\/p>\n
In 1984, a group of legal scholars drafted other nonderogable
\nrights in the \"Paris Minimum Standard of Human Rights Norms in a
\nState of Emergency,\" including the right to a fair trial, right
\nto a remedy, rights of the family and the child, right to
\nparticipate in government, rights of minorities to their culture,
\nreligion and language and freedom of thought.<\/p>\n
Clearly the bill needs drastic improvements and the
\nConstitution itself must be amended to allow for legislative
\napproval of declarations of states of emergency. All this will
\nmean nothing, however, unless Indonesia has an independent
\njudiciary, rule of law and a military that is firmly under
\ncivilian control.<\/p>\n
The drafters of the bill contemplated intervention in the
\ncourts during states of emergency. This must be absolutely
\nforbidden. It is precisely during crisis situations that the
\nnation will need an independent judiciary the most. Most
\nimportantly, Indonesia needs a military that is not above the
\nlaw, that is more professional, that follows the directive of the
\npresident and respects the decisions of the House.<\/p>\n
Indonesia's ultimate goal should be to create a society with
\nefficient and effective dispute resolution institutions like
\nimpartial courts and the representative assemblies that reflect
\nthe desires and aspirations of the people.<\/p>\n
If these institutions are reformed successfully, incidents of
\n\"civil disturbances\" will certainly decline and, with any luck, a
\nstate of emergency law will never need to be used.<\/p>\n
Matthew Draper is a juris doctor candidate at Columbia Law
\nSchool in New York. Yuli Swasono is on the staff of the
\nConsortium of National Law Reform, a Jakarta-based non-
\ngovernmental organization.<\/p>",
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