State security bill must not be signed

State security bill must not be signed

By Matthew Draper and Yuli Swasono

JAKARTA (JP): There are strong fears that President
Abdurrahman Wahid plans to quietly sign the state security bill
in the coming months. This is the same act that led to widespread
protests in September 1999 that ended in soldiers fatally
shooting at least two students.

Last year the government contended that the President was
waiting until the public better understood the law before signing
it, but the true reason was that many believed the military would
inflame conflicts, forcing the government to declare a state of
emergency and grant the military greater power.

Given the absence of accountable, democratic institutions
necessary for limiting abuse of emergency powers, the bill, if
signed, would lie around like a loaded gun waiting to go off.
Before Indonesia can begin to reduce separatist and sectarian
violence, it must first control and professionalize its armed
forces.

Yet the government must move quickly to reduce violence now.
In fact, it appears that the government's embarrassing failure to
control the fighting in Maluku -- by declaring a "civil
emergency" under an old, outdated emergency law -- has led to the
decision to sign the bill.

The challenge for the government will be to come up with a law
that can speedily bring conflicts to an end while restraining the
military and protecting human rights. In its current form, the
bill fails to do so.

Last year the government promised the United Nations it would
join the International Covenant on Civil and Political Rights
(ICCPR) in 2000. The ICCPR requires signatories to follow certain
procedures during a state of emergency and respect certain basic
human rights at all times. Law No. 23/1959, the bill and the 1945
Constitution all contain provisions that contradict the ICCPR's
requirements.

Accession to the ICCPR therefore presents an excellent
opportunity to improve the proposed emergency law. In addition,
the People's Consultative Assembly (MPR) should bring the
Constitution in line with the international standards to which
the government has already said it would agree.

Any proper emergency law would require a bona fide emergency
and the approval of legisature before the president could declare
a state of emergency. This would directly contradict Article 12
of the 1945 Constitution, which gives the president total
discretion.

Many other countries have emergency laws, but few have
militaries like Indonesia's. The militaries in countries like the
United States and Germany are under civilian control and have no
political role. This is not the case with the military in
Indonesia. Even though the Indonesian Military says it is trying
to reform itself, it has yet to follow through.

If we are to have hope that emergency powers will be used
responsibly in Indonesia, the Constitution and the bill should be
amended to conform to certain internationally accepted
principles.

First, every declaration must have the approval of the
legislature beforehand, or, in an extreme emergency, within a
week of the president's declaration. Although the bill requires
reports from the provincial government and "consultations" with
the House of Representatives (DPR), it is the president
ultimately who has sole authority to declare a state of
emergency.

The failure of the bill to require the president to gain the
legislature's approval violates the principle of separation of
powers and hands the president a legal method to use the military
to destroy the constitutional government. The DPR's involvement
would also force the government to find other, nonviolent ways to
address the conflict before seeking approval for a declaration of
a state of emergency.

Second, emergency situations should last only three months and
should only be extended after the legislature's thorough
evaluation and approval. With the bill, a state of emergency can
last six months and the government can continue to use its
emergency powers for another three months after the emergency has
officially ended. Under the bill, a declaration of an emergency
is a blank check for the government to use repressive measures
for up to nine months.

Third, if the government fails to properly excuse its duty or
if the emergency has ended, the legislature should be able to end
a state of emergency at any time by majority vote. The bill gives
the House no such oversight authority. It is critical that during
crises, the democratic government continues to function.

Related to this problem is the military's functional
constituency representatives in the legislature. They cannot be
expected to have the best interests of the country in mind as
they vote for an act that would give them sweeping powers.

Fourth, any emergency measures must be strictly limited to
what the situation requires. The bill mentions the principle of
"proportionality" as one of its goals, but stipulates no
procedures to ensure that it is followed in reality. The use of
military violence should not be the government's first reaction
to every problem. Peaceful alternatives to settling conflicts
should be fully explored first.

Fifth, all emergency measures must be applied in a
nondiscriminatory manner. The government, police and military
must treat people equally, regardless of their race, religion,
gender, language and social class.

The bill entirely overlooks this important requirement. As the
conflict in Maluku demonstrates, nondiscrimination is a
fundamental requirement if military intervention is to not make
matters worse. It is the government's obligation to work toward a
society based on equality and justice. The government must follow
this policy, especially during emergency situations.

Another key issue that the bill completely omits is
nonderogable rights. The drafters of the bill, citing the
Universal Declaration of Human Rights, claim that all human
rights are relative. This claim directly contradicts the ICCPR,
which the government has promised it will accede to this year.

The following rights may not be violated, even during times of
emergency, under the ICCPR: the right to life, recognition as a
person before the law, right to freedom of religion, as well as
freedom from torture, slavery and retroactive criminal laws and
punishments.

In 1984, a group of legal scholars drafted other nonderogable
rights in the "Paris Minimum Standard of Human Rights Norms in a
State of Emergency," including the right to a fair trial, right
to a remedy, rights of the family and the child, right to
participate in government, rights of minorities to their culture,
religion and language and freedom of thought.

Clearly the bill needs drastic improvements and the
Constitution itself must be amended to allow for legislative
approval of declarations of states of emergency. All this will
mean nothing, however, unless Indonesia has an independent
judiciary, rule of law and a military that is firmly under
civilian control.

The drafters of the bill contemplated intervention in the
courts during states of emergency. This must be absolutely
forbidden. It is precisely during crisis situations that the
nation will need an independent judiciary the most. Most
importantly, Indonesia needs a military that is not above the
law, that is more professional, that follows the directive of the
president and respects the decisions of the House.

Indonesia's ultimate goal should be to create a society with
efficient and effective dispute resolution institutions like
impartial courts and the representative assemblies that reflect
the desires and aspirations of the people.

If these institutions are reformed successfully, incidents of
"civil disturbances" will certainly decline and, with any luck, a
state of emergency law will never need to be used.

Matthew Draper is a juris doctor candidate at Columbia Law
School in New York. Yuli Swasono is on the staff of the
Consortium of National Law Reform, a Jakarta-based non-
governmental organization.