On Tuesday, 31 May 2016, the Institute for Criminal Justice Reform (“ICJR”) was invited by the Special Committee on the Draft Bill on Terrorism to deliver several inputs in the Public Hearing which held in the House of Representatives (DPR). The public hearing was also attended by the Association of Indonesian Muslim Intellectuals (Ikatan Cendikiawan Muslim Indonesia – ICMI), Indonesia Peace Alliance (Aliansi Indonesia Damai – AIDa), the OIC Youth, Indonesian Survivors Foundation (Yayasan Penyintas Indonesia), and the Islamic Defenders Front (Front Pembela Islam – FPI).
In this public hearing, the ICJR conveyed some of the important issues in the Draft Bill on Terrorism. The important issues cover forceful measures (upaya paksa), child as the perpetrator of terrorism act, death penalty, revocation of citizenship, and lack of protection regarding the victims’ rights. All of these issues have been submitted to the Special Committee on the Draft Bill on Terrorism in the form of Problem Inventory List (Daftar Inventarisasi Masalah – DIM) along with the following notes and inputs for the DPR:
First, related to the forceful measures, the ICJR assesses the provisions in Draft Bill on Terrorism has great potential to violate human rights and disregard the basic principles of a fair trial. The ICJR strongly criticized the 30-day arrest period and the 450-day pretrial detention period. The ICJR assessed that the government has failed to provide a rational explanation on why is it take so long to arrest and detain a person. Based on the monitoring results which conducted by the ICJR, there is no single terrorism suspects and defendant which was acquitted or released from lawsuits up to this day. It shows that the criminal procedural laws on both the Criminal Procedure Code (Kitab Undang-undang Hukum Pidana) and Terrorism Law currently in force are still effective.
ICJR also underlined that the 7×24 hours arrest period in the current Terrorism Law can be considered as “InCommunicado” or detention without legal certainty regarding the access to information and the existence of prisoners. This practice became the background for torture in the judicial process related to terrorism. It cannot be imagined if the arrest period is going to be extended to 30 days. This provision is also violating the suspect’s right to be immediately brought into the courtroom.
Another forceful measure which can be an issue is wiretapping. In the Draft Bill on Terrorism, the provision on wiretapping is less restrictive than the existing rule, no longer requires court’s permission, and removes its time periods. The ICJR assessed that the provisions related to wiretapping should be strengthened, not weakened. It is because wiretapping is potentially to be misused if it is not strictly controlled and monitored. Furthermore, in the context of the Terrorism Law, wiretapping is a part of forceful measures in the context of law enforcement, not eavesdropping in terms of intelligence. Therefore, its arrangements should be subject to the concept of the criminal justice process.
The ICJR is also assessed that the decision to remove the existing provisions was not supported by strong data, for instance, whether there are obstacles in conducting a wiretapping or how many failed wiretapping acts due to court’s permission and period of wiretapping reasons.
Second, the ICJR urged the House to remove the “Guantanamo” provision in Article 43B of the Draft Bill on Terrorism, which is a form of preventive countermeasures against a particular person at a particular place by the investigator or prosecutor for 6 months period. This article may violate human rights because it is conducted with unclear basis and regulation. There is no legal certainty in this article and will add another human rights problem in Indonesia.
Third, the ICJR asked the House to abolish the provision on death penalty and reevaluate the revocation of citizenship sanction. The ICJR assessed that death penalty is ineffective. Based on the historical experience of Indonesia that has long applied the death penalty for terrorism cases, death penalty can be a new inspiration for their “willingness-to-die” mindset.
Subsequently, revocation of citizenship sanction should be reevaluated due to unclear mechanism, not part of our criminal system, and can make a person stateless. Indonesia adheres to a single citizenship, and thus, this may result in loss of protection of basic rights. Lastly, this sanction is also contradict the de-radicalization approach in the Terrorism Law.
Fourth, the conformity should be ensured between children as the perpetrator of terrorism and children as victims of organized crime such as terrorism. In the context of children protection, the vulnerability of children as a victim of crime should always be noted, not necessarily as an actor.
Furthermore, imprisonment sanction is contradict the principle of the child’s best interests (all approach in the Terrorism Law is imprisonment sanction). Children should always be kept away from the criminal justice with criminal sanctions (revocation of citizenship). De-radicalization program should be prioritized for children (even if the children have conducted a criminal offence) and children should not be placed in jail to avoid the contact with the dangerous terrorist’s ideology.
Fifth, the ICJR requested the House to reevaluate the entire formulation of offenses in the Draft Bill on Terrorism. There are a lot of wide-ranging offenses without clear intention and limitation. For example, Article 13A which regulate speech, gesture or conduct, writing, or display related to terrorism. This article is vague because it would be dangerous to give the authority to interpret the attitude or behavior and appearance to the investigator. The ICJR also assessed that such an arrangement would target one of the expressions labeled as a “description” of terrorists. In that regard, the ICJR urged the House to reevaluate these provisions in the Draft Bill on Terrorism to avoid multi interpretation.
Sixth, the protection on victims’ rights is not yet maximal. An important note from the ICJR for the Draft Bill on Terrorism is the lack of provision regarding the victims’ rights. There are several things that must be noted in the provision of victim’s rights, including the definition victim which has not been comprehensively explained in accordance with international law.
Furthermore, victim’s rights are not specifically provided in the Terrorism Act, although it has been regulated in the Witness and Victim Protection Law. However, the inclusion of specific rights for victims of terrorism acts is considered necessary. Afterward, there are no special rights on emergency medical aid. Emergency medical aids for victims of terrorism are not explicitly stated. This matter results in frequent delays in providing medical aids for victims of terrorism since this service is not legally binding. The ICJR also noted that the process to give compensation is very complicated.
This is because the compensation depends on court decisions in the criminal justice process. The problem is that the numbers of extra-judicial killing are very high. From the data which acquired by the ICJR, there are 32 victims of extra-judicial killing suspected as terrorist act perpetrators. By depending on court’s decision, compensation will be difficult to be given because the perpetrators have not been trialed. Moreover, not all names can be included in the court’s decision and the prosecution, especially if we have to wait for a legally binding decision which going to take a very long time.
Next is about the victim of procedural errors from law enforcement officers. There is no adequate provision related to rehabilitation for victim of procedural errors. Rehabilitation and compensation will be included in court’s decision if the suspect is acquitted. Therefore, in case there are procedural errors before or after the trial without the acquittal decision, there will be no rehabilitation and compensation.
For that reason, the IJCR proposes the following recommendations regarding the Draft Bill on Terrorism:
First, all provisions related to forceful measures must be reevaluated and must be adjusted with the principles of fair trial and protection of human rights.
Second, all provisions related to death penalty and revocation of citizenship sanction must be reevaluated. It can be considered ineffective, contradicts the de-radicalization approach, and may inspire more abusive revenge.
Third, evaluate all vague and unclear provisions to avoid multi interpretation that may raise another problem.
Fourth, strengthens the protection for children perpetrators of terrorism criminal acts, eliminates the imprisonment sanction approach, prioritizes de-radicalization, and promotes the best interests of the children.
Fifth, strengthens the protection on victim’s rights, both on victims of terrorism act and victims of procedural errors from law enforcement officers.
