Surveillance Articles under the Bill of Anti-Terrorism Law (Revision) shall be in line with the Principles of the Protection to the Right to Privacy

Press Release of ELSAM
Surveillance Articles under the Bill of Anti-Terrorism Law (Revision) shall be in line with the Principles of the Protection to the Right to Privacy

The arising tension to eradicate terrorism globally has increased the trend on the utilisation of the methods of surveillance, communication interception, and other forms of surveillance, for the sake of facilitating the disclosure of terrorism cases and countering the spread of terrorism acts. Although such methods can be classified as a form that may curtail the right to privacy, however this practice is indeed permissible to be executed legally, on the basis of national security, as long as satisfying the rules and principles of limitation. This polemic is also surfaced during the discussion of the Bill on the Revision of the Law on the Eradication of Terrorism Criminal Acts (Law No. 15/2003) at the House of Representative (DPR RI). There is a proposal from the Government on their initiative Bill to expand the mandates of the investigators to undertake surveillance in countering terrorism.

Martin Scheinin, former UN Special Rapporteur on Counter-terrorism, in 2009 has reminded that the trend to utilise surveillance on the name of national security in eradicating terrorism has systematically and massively caused several side effects, namely (a) the emersion of chilling effect towards the enjoyment of the freedom of expression and opinion, (b) the right to the freedom of association and assembly is being threatened, (c) every individual’s freedom to move from one place to another is no longer absolutely free, and (d) it could potentially caused miscarriage of justice, as well as resulted to the violation of the right to a fair trial.

Therefore, Scheinin emphasised five crucial principles that should be the core in the formulation of regulation on counter-terrorism that is related with the limitation to someone’s right to privacy, which are: (i) Principle of minimum intrusiveness; (ii) Principle of limited access to personal data; (iii) Principle of supervision and regulation on access to personal data; (iv) Principle of openness and honesty or integrity; and (v) Principle of effective modernisation.

The Institute for Policy Research and Advocacy (ELSAM) sees the Bill proposal brought by the Government as an attempt to enlarge the space for surveillance or other forms of surveillance practices. This is reflected in the formulation of the revision of Article 31 that allows the investigator to: (a) open, examine, and confiscate letters and packages through postal service or other delivery services that possessed connection with the cases of terrorism acts that being investigated, and (b) intercept the communication through phone or other telecommunication devices that is allegedly being used to prepare, plan, and execute terrorism criminal acts, or to know the existence of someone or terrorism networking pursuant to at least two legitimate evidences. In conducting the investigations as mentioned above, the investigator is only obligated to report or responsible for their actions to the Chief of Investigator and the Ministry of Telecommunication and Information of the Republic of Indonesia, as part of the audit.

That formulation did not specifically regulated the duration or time span for conducting such interception or other forms of surveillance, nor authorising or processing the license for implementing such actions. It was different with the provisions of the Law No. 15/2003, where in Article 31 (2) mentioned that interception can only be taken on the basis of the order from the Chief Judge of the District Court, for maximum one year period. This means that there is a declination of degree to control and procedure under the proposed formulation on the Bill. With such formulation, the investigator has no time limit to exercise its right for surveillance.
The proposal of regulation like this is indeed in contravention with the Constitutional Court’s consideration in the Judgement No. 5/PUU-VIII/2010 that in exercising lawful interception, it can only be taken within a definite time period. With its huge space, it become a common concern that the investigator could arbitrarily attaining access in a wide manner to identify somebody’s life, controlling certain civilian population and capable to act aggressively towards the population with the unwanted personal identity. Therefore, it being feared that such situation became a legitimation to put all citizens’ data privacy under the control and supervision of the Government, for a reason of preventing acts of terrorism to come.

Meanwhile in the context of exclusion, particularly in the state of emergency, the authorisation for post facto supervision is indeed permitted, as a tool to test the legality of interception, in order to be deemed lawful. Nevertheless, the authorisation for pre facto supervision remains needed to be prioritised in order to ensure that such interception practices are not arbitrary. The Office of the UN High Commissioner for Human Rights (OHCHR) has firmly stated in 2014 that the importance of an effective oversight mechanism by an independent body or court that is free from government intervention.

Taking into account the above mentioned reasoning, ELSAM sees, as part of a derogation of civil liberties, the provisions under the former law (Law No. 15/2003), has actually compatible with the principles of lawful interception. Thus, the formulation of this regulation is ideally not being amended. Rather, this provision needs to provide an additional clause of emergency and further regulations concerning the rules of surveillance under this Act (Anti-Terrorism Law), with a specific regulation on the procedure of surveillance, which will be formulated in a particular Law, as being stipulated under Article 31 (4) of the Law No.19/2016 on the Amendment of the Law No. 11/2008 on Information and Electronic Transaction, as well as Constitutional Court’s ruling that wishes the unity of the law of interception.

Jakarta, 27 July 2017

Institute for Policy Research and Advocacy (ELSAM),

For further information, please contact Wahyudi Djafar (Deputy Director of Research, ELSAM), phone: 081382083993, or Ruben Sumigar (Researcher), phone: 085780094050.