Intelligence function and society

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).