Intelligence function and society

Begi Hersutanto, Jakarta

A.M. Hendropriyono, the chief of the National Intelligence Agency (BIN), recently said that his agency had no legal power to arrest suspects to prevent terror attacks. He urged that a bill on intelligence be drafted speedily to allow his agency to work more effectively. (The Jakarta Post, July 30, 2004). His statement was made in connection with the Bali bombing in October 2002 and the Constitutional Court's ruling on the retroactivity of antiterror laws last week.

Hendropriyono said that it was crucial to strengthen the intelligence agency in order to prevent "mice from entering the house". The BIN needs legal power to hunt down suspected terrorists. He also criticized human rights groups' accusations that the government gave more power to BIN by allowing it to set up offices at the provincial and district level.

Hendropriyono's point of view needs to be examined. The intelligence service is a state institution that is not part of the judicial system. Such a proposal is not in accordance with the general principle of the criminal law and the Criminal Law Procedures Code.

Terrorism is basically a crime. It differs from other types of crime due to its political motivation. However, it still has to be processed according to the criminal law.

The judicial process relies on the existence of evidence to prove whether a suspect is guilty or not. Within the Indonesian legal system, the presence of evidence enables the judges in the criminal court to make decisions. Therefore, the core justification in the processing criminal cases is evidence produced in court. The evidence in this regard is provided by the police and presented in court by the prosecution. The synergy between the two brings the suspect to court.

Unlike the police and the prosecution, intelligence work is based on assumptions. Of course, the assumption is made based on the gathering of information. However, the general principles of the criminal law prohibit judges in the criminal court from making decisions based on assumptions. This is why intelligence cannot be used based on the Criminal Law Procedures Code.

In other words, the proposal that the intelligence agency needs to be strengthened by law to arrest suspected terrorists is a contradiction to the general principles of the criminal law. One cannot be accused or taken to the criminal court without the presence of evidence. The intelligence agency should not have the authority to arrest suspected criminals. Arresting a suspect is the jurisdiction of the police and should remain so.

An individual, in this regard, cannot be taken to court simply because the intelligence agency has suspicions about the individual. This will be a bad precedent in the future because it gives the opportunity for the authorities to abuse citizens. Anyone whom the intelligence agency considers a suspected terrorist will be arrested by the agency and taken to court as a suspect. Sadly, it will be the a step backwards for the Indonesian legal system in the name of security.

It cannot be denied that there has to be a law on the existence and the practices of the intelligence agency. The drafting of the law should be in harmony with the other laws on defense. There has to be a clear regulation on the position, the function, and the duty of BIN.

The BIN has to have a clear framework regarding its role, which principally is to gather information and to foresee possible security threats. In cases where someone is suspected as being part of a terrorism plot, the intelligence agency should work within the existing law enforcement system.

Arresting a suspect should remain the responsibility of the police. Whenever the intelligence agency senses the possible threat, it should investigate and gather information to lead the police in collecting evidence. That way, the suspected terrorist can be taken to court legally. In this regard, we shall not fight crime using illegal means, otherwise the boundary between the law enforcer and the criminal will disappear.

This is a dilemma. Security concerns and freedom of civil society are going in opposite directions. On one hand, there is a need to protect and guarantee security, meanwhile, strengthening security is usually done by sacrificing the civil liberty.

The best way to seek a compromise between security concerns and civil liberty is to find the middle path between them. There has to be the understanding that the purpose of the security authorities is to protect and to guarantee the security of the country's citizens and not to abuse them. On the other hand, there has to be a delineation between the work of the police and the intelligence agency. The role of the intelligence is the hardware for the early warning system, while the police are the law enforcers. Therefore, this delineation will ensure that BIN does not have the right to arrest a suspected criminal.

The writer is a researcher at the Centre for Strategic and International Studies (CSIS).