ELSAM Press Conference: the Revised Law on Terrorism should Refer to International Human Rights Duties

Government has a duty to take effective actions in countering terrorism in order to guarantee the protection and fulfilment of the basic rights of its people. Regarding this, President Joko Widodo suggested to revise Law No. 15 / 2003 about Terrorism, as a government effort to effectively enable and optimize the prosecution of terrorism, especially after Sarinah Bombing incident. This suggestion was planned to be proposed in Amendment Law Draft on Law No. 15 / 2003. By considering the ongoing discourse, especially related to the revision content, Institute of Policy Research and Advocacy (ELSAM) suggests some necessary points in the policies making.

First, Amendment Draft Law on Terrorism should be able to give clear definition on terrorism. The definition on terrorism today is spread in a number of international instruments, such as 1994 Declaration on Measures to Eliminate International of Terrorism, United Nation Security Council Resolution 1566 ( 2004), International Convention for the Suppression of Terrorist , which also has been ratified into Indonesia national law. The reference for definition of terrorism which is currently mentioned in Law of Terrorism Crime Act is indeed not in accordance with the valid international standard. Therefore, the revision for the terrorism concept is an absolute requirement in the future.

Second, the discourse in expanding police force authority in order to extend detention period of someone who is suspected of committing terrorism act. The current valid regulation allows 7 days (maximum) duration of detention (incommunicado detention). That duration is considered not enough for the police to collect evidences, thus 20 days duration is suggested. This condition is surely against the international human rights standard which prohibits arbitrary detention, as stated in Article 9 Paragraph (1) Covenant on Civil and Political Rights. General Comment 35 International Covenant on Civil and Political Rights emphasizes the concept of arbitrary could be measured by the reasonableness, necessity, and proportionality. Detention on a terrorist suspect for 20 days is clearly not proportional because it not a less intrusive measures. If the increasing duration of detention is approved, thus the terrorist suspects possibly will face the torture at the interrogation phase. Some of them even resulting in death or forced disappearances, as admitted by UN Special Rapporteur for Counter – Terrorism, Ben Emerson. Therefore, the protection of civil and political rights of the suspect terrorists has to be guaranteed. Within this context, any kind of information regarding detention of the suspected terrorists should be open to the public in accordance with the right to truth, which means that everyone has a right to know any kind of information related to the detention process.

Third, besides the issues of arrest and detention, another ongoing discourse is related to the strengthening of surveillance authorities, either in the form of monitoring, wire tapping, or interception of communication. The discourse of combating terrorism globally has increased the application of surveillance methods in tackling the spread of terrorism acts. If the amendment plan of Law on Terrorism Criminal Act is really implemented, then all the privacies of civilians would be under the control or under the monitoring of government lawfully. The government would then use the prevention of repeating terrorism acts as an excuse. With this practice, government would have wide access to acknowledge someone’s track record, control the population of some group of societies, and also able to act aggressively on the groups with undesirable privacies. This situation is considered as a serious threat for the sustainability of international commitment to protect everyone privacy.

In 2009, Martin Scheinin, one of UN Special Rapporteur for Counter – Terrorism, mentioned that the trend usage of surveillance for the sake of combating terrorism has systematically and massively resulted with some impacts, such as : (1) created extraordinary fear ( chilling effect) on the enjoyment of freedom of expression and opinions; (2) the threat for the rights to freedom of association and assembly; (3)the threat for freedom of movement; and (4) miscarriage of justice and violation of fair trial. Therefore, Scheinin emphasizes five important principles that has to be the foundation in the creating regulation on combating terrorism, which are : (i) the principle of minimum intrusiveness; (ii) the principle of purpose specification restricting secondary use; (iii) the principle of oversight and regulated authorization of lawful access; (iv) the principle of transparency and integrity;  and (v) The principle of effective modernization.

By taking various international human rights standard and obligations mentioned above into account, Institute of Policy Research and Advocacy (ELSAM) recommends these following points to the government:

1. The current Law on Terrorism Criminal Act indeed is sufficient enough as a reference in countering terrorism act. Even if the amendment is required, it should ensure that the amendment is in accordance with the principles of human rights protection.
2. Support the strengthening of coordination function among all government agencies that involved in countering terrorism, such as function of prevention, early detection, prosecution, law enforcement, and rehabilitation, so that it is integrated with each other.
3. Government guarantees people’s rights to feel secure by optimizing the whole devices, instruments, and resources, without harm the duty to protect human rights.
4. Reject all the suggestions regarding increasing the authority of arrest / detention and surveillance (monitoring / tapping / interception of communication) which are not in accordance with the human rights principles.

Jakarta, 2 February 2016