Fri, 18 Aug 2000

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government's embarrassing failure to control the fighting in Maluku -- by declaring a "civil emergency" under an old, outdated emergency law -- has led to the decision to sign the bill.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.