Critical Reflections on the Draft of State Secrecy Bill

Critical Reflections on the Draft of State Secrecy Bill

By David Raja Marpaung S.IP M.Def

Critical Reflection

          In a democracy, a state secret is public information for the time being kept secret to the public. State secrets is a limitation or exclusion of the right to information as human rights. Then the principle must not be defeated in a democracy is that all public information, including information owned by the state, is publicly owned. As an exception, setting its state secrets should be limited, limitatif and applies to only a certain period

           Attempts to institutionalize the principles of state secrecy or confidentiality information depart from the assumption that disclosure will lead to excessive number of adverse impacts to the national interest. The publication documents a particular country may threaten the safety of the state, interfere with state efforts to maintain national security. The government then implemented the system of classification of information: penyembuanyian or information storage system based on the confidentiality of certain confidentiality considerations. Some signs were created to determine the information that is not publicly accessible, the following sanctions for violations of law.

        On the other side of the confidentiality classification of information is a necessity for every country and every government. The problem of experience in many countries showing that  the application of information classification system is more influenced by the subjectivity of the organizers of the government. 

      Status of state secrets is often intended to protect the reputation of the government, bureaucratic interests, and not really to protect the interests of the state. Government's credibility and reputation are considered more important than the public's right to obtain information about government performance. Steven Aftergood (1996) distinguish between a pure state secrets (genuine national secrecy) on the one hand, and state secrets that are political (political secrecy) and a secret bureaucracy (bureaucratic secrecy).This distinction is relevant because not all claims of state secrets refers to information that can actually harm the interests and national security. In other words, in practice the political and bureaucratic secrecy secrecy is much more dominant than genuine national secrecy.

          If you browse the trip a bill the State Secrets from initial planning done on the New Order era that followed after the reform (2006), until the final draft in 2010 showed some good shifts from the quantity number (article, paragraph, and grains), and in terms of substance. However, that becomes interesting when reformulated State Secrets Bill back in 2010 to the needs of the national legislation program 2010-2014. Despite the shift, but there are some subjects which vulnerability to the emergence of a regime of secrecy. For that, the next description will be presented some important points that become critical reflection

First, the problem frame in an effort to categorization or scope to be secret. When putting state secrets in the national security of the poles need to be strengthened some of the scope associated with the instrument. The design that is just shifting a few points that there are exceptions to the Law No.14 of 2008. This condition shows that no major foothold or big frame underlying the categorization of state secrets, especially when the state secrets mengkaiatkan elements in space slices with national security.

Secondly, concerning the next to be important for dipermasalahakan in the draft State Secrets, which is related to the categorization or the scope of the secret. In the case of objects dirahasikan detail, this design has provided a description of what a secret. Misalanya in the defense category of the country where things like plan a degree troop strength in a state of war or in operations or intelligence data gathering intelligence within the scope of the state. This is understandable as a secret object.However, there are some details that give intrepetasi ketidakperluan even an object to be secret. For example, the scope of national defense, the details of the plan allocation and expenditure related to the mission and duties of defense. This is a strange and raises the opportunity for fraud or gaps when the object is dirahasikan, especially related to budget planning.

Two things that then becomes a separate problem in which vagueness frame state secrecy which was followed by some details about the objects concealed by multii-interpretation creates an increase in insecurity and mistrust towards the implementation of this bill will be.

Third reflection, namely the mechanism (how) to determine the secrecy in which the design has incorporated its own discussion related to the classification and declassification of a state secret.However, explicit discussion is merely an administrative process in which the state agency designated as the executor / determinant of state secrets provide a written consideration of the impact when the object is not kept secret and considerations were presented to the president. Exposure to only provide an understanding of the administrative state, not a clear and specific mechanism.Associated with the classification and declassification, the relational design is not found between the type of state secret (so secret, secret, restricted secret) with the impact in case of abuse of state secrets. This becomes important in classifying and pendeklasifikasian a state secret.

Fourth, related to the retention period that is exposed in the draft where there are three levels, namely the very secret of 30 years, the secrets of 15 years, and a limited 5-year secret. The period of retention is important, but not always an information, objects, and activities that have implications for the integrity of the nation and the state (very secret) given 30 years. There is some information, objects, and activities that have a high content of vulnerability, but vulnerability can be completed in less than 30 years. For the discussion of declassification is not diuraiakan exposure associated with the termination of a state secret when the threat and vulnerability were completed in less than the retention period.

Description of classification, declassification, and the retention period to be important for the third to be reflected as a node in the establishment and termination of an object that has been and will be a state secret.

Fifth, the problems associated with the actor penyelengaara, determining, managing and protecting state secrets. In the design of which rolled out now, there is no clearly who will conduct such efforts. Which president served only as the holder of the highest authority who may delegate such authority to state institutions, ministries and institutions both non-ministerial institutions. Not clearly regulated and detailed who is entitled and responsible in menanganan perahasian secret object. This vulnerability memunuculkan democracy where the president as the highest authority in the governance of the state (government) is giving a blank check on the state agency to perform pelaksnanaan perahasian based on a breakdown of the state without chapter or verse in the design.

The six settings of anyone associated state officials because of the position and interests can use the state secrets. In this design has not been described in detail related to the description. Which later appeared in this State Secrets Bill, which every state officials when it will access and have the information, objects, and activities that require dirahasikan "right to know" based on the level or type of state secrets. Especially troubling is very related to the standard procedure in the process of ownership or access to the secret object which is not explained what the standard procedure detailed ownership or merely a "right to know" which became the basis of the process.

Seventh, critical reflection focused on the lack of discussion on the bill concerning the State Secrets about public access to the concealed object. Which then appear in the text of this bill is the only state officials who can access and have a secret object. This shows that this bill is very exclusive to the state apparatus (Stata apparatus). Ordinary people are not placed in an effort to control the risk of passing state secrets. There are only ordinary people can have access and when conditions are not done intentionally and unlawfully. It is very ironic, when passing this bill is still very strong efforts to re-establishment of the closure regime if meliha Seran has not given the role of the community to be able to obtain what is called secret.

Eighth, namely regarding the budget required in order perahasian an object that dirahasian. In this design has not provided a proposal related to how the funding or budget allocation in the management of a mechanism perahasian, there are only funds that are allocated to the state officials who work in the organization, designation, management, and protection of state secrets. This becomes important when looking at the tiers retention period that require fees in the system of handling state secrets. Not only that, the use of technology in the management of state secrets certainly require a large fee. For that, very surprisingly, when the budget or the allocation of funds perahasian not included, because it will raise suspicion about the origin of the high costs incurred when the design is implemented in the operational level.

Ninth, which is associated with the absence of a discussion of exceptions to confidentiality when confronted with the object of democratic principles. This becomes important because the state secrets are placed not only at the poles (the interests of national security), but context is important for democracy to be put forward in the draft. Moreover, when related to the investigation, prosecution, and examination at trial, an object of state secrets can not be placed as evidence in a public trial. It makes its own weaknesses, how when it collided in the implementation of state secrets or related to cases of criminal law.

Tenth, related to the dimensions of the supervision provided for in this draft has been presented concerning the supervision of two directions, namely the executive (past president), and the legislature (through sub-committees or special committees). This discussion does not make enough of an ideal dimension of supervision. Especially in the principles of democracy that puts the subject of checks and balances that demands for oversight of layered and tiered from the three pillars of the state (executive, judicial, and legislative), to the efforts of the supervision carried out by civil society or the actor who has the properties independent.

Tenth exposure associated with peramasalahan contained in the substance indicates that the State Secrets Bill was still in the level of substance terkai debate with democratic principles with the interests of national security. If you look at the draft to be fair when the civil society need to reflect critically on subjects that would create a vulnerability to the system and the atmoshpere of democracy that have been built about a decade.

Recommendations Reflective

First, the Secrets Bill should be placed in destination countries and the interests of national security as the main frame. This is expected not to create a closure regime is trying to shut down all access to information within the community. The implication is clear who will then be arranged in chapters, verses, and the grain on this draft will always be limited and only on the security interests nationally. 

Secondly, that is associated with a breakdown by category or scope set forth in this draft where when details are needed then the implication is clear, that such details do not cause mulit-interpretation that would lead to a sharp debate between state actors and civil society.

The third recommendation, which is related to the mechanism (how) to determine the secrecy. When the bill was needed in risk management (risk control), then clearly the details of how a way to determine the necessity of secrecy in the description ditampilan State Secrets Bill. Reformulation of the mechanisms determining which then linked to the classification and declassification effort is important and should dipaparakan in this bill.

 Fourth, the use of the retention level is where this bill should be formulated on the retention period associated with this type of state secrets. And how it ends when the retention period has been completed and does not pose a threat to the integrity of the nation and state and sebulum time specified. This needs to set a quick look at the context of the threat of escalation and handling. It is also necessary to avoid the omission of an object that has no strategic value in the period of time.

The fifth recommendation, namely the determination of explicit, clear, and detailed description of state actors (government) to the organizers, determining, managing, and protecting objects dirahasikan. This can be done by showing directly with one or more state agencies that either the ministry or non-ministry with competence and instruments in the implementation of state secrets. Or can form a new committee or agency of the state apparatus diakomdasi the organizers, determining, managing, and protecting objects dirahasikan. Sixth, which is on the standard procedures required when state officials based on title and its interests require and have a concealed object. Not only through the "right to know", but the standard procedure is to be important for itemized and clarified bagiamana way or the governance and refers also to the impact and needs when there is alienation in the possession of an object that dirahasian.

Seventh, the sehaursnya are ideal and meet the principles of democracy, namely the active participation of society, the space for the public (civilian) to access and have become important objects dirahasikan for granted. This can be done by using a security clearance to become a bridge for people to access confidential objects. This right also to look at the impact and implications associated with the goals and interests of national security. The next recommendation, the eighth, which is related to the fulfillment of the budget on the implementation of state secrets. Fulfillment may be obtained through official sources and legally owned by the state. To that end, the recommendations require to provide a discussion on Implementation of the budget in state secrets.

Ninth, which is associated with a discussion of exceptions where the points of the object dirahasikan can fade or fall along with the cases, such as human rights and corruption inherent in efforts perahasian state. It becomes important to provide an exception clause of the efforts that are confronted with the principles of democracy. Tenth recommendation, which is on the layered control where in this bill only provides two-way has not been enough supervision, required supervision layered, like the executive (the president and ranks), legislative (special committee) and judicial (national police, prosecutors, the judiciary), which was added by KPK as in the spirit of anti-corruption watchdog, Komnas HAM (in violation of basic rights pencegahaan society), and independent institutions (civil society) for external control of the state perahasian.

Standing Point

In looking and reflect on a bill that rolled back the Prolegnas 2010-2014, there are two important points in the placement of positions in response to the draft. First, this design has become the essence of a risk control tool against the threat to the integrity of the nation (especially in the vulnerability to interference, which would damage the physical). This becomes important in the context of the purpose and the interests of national security. Secondly, but when the national security context does not meet the principles of democracy enshrined in the bill this secret (especially in the substance), then the tendency to return to the culture of secrecy (closure regime) and misappropriation of authority has a strong potential and high. To that end, when national security goals and interests as outlined in the State Secrecy Bill still has a substantive problem which allows for the fraud, then the resistance becomes an important effort to put forward.

Paper Presentation as Keynote Speaker at Forum with Indonesia Police and TNI, also Related Stakeholder 

Analysis of National Security Bill Proposal

Analysis of National Security Bill Proposal

By David Raja Marpaung S.IP M.Def

The urgency National Security  primarily driven by inter-agency coordination in the handling of the threat (armed forces, police, another stakeholder), the security risk threat that increasing recently, and also to answer the clarity  of authority and responsibilities of agencies in the gray area.

Nonetheless, one of the biggest challenges in Indonesia are often the main area of ​​responsibility is gray (gray areas) so as to bring the two attitudes. First , the two parties or institutions feel that an issue is part of its responsibilities. This affects the handling is not comprehensive due to the different forms of treatment against a threat. Second,  the two parties or even parties who have a slice of responsibility to a problem just ignore the necessity to overcome the threats because he felt that the threat was not part of the relevant institutions. This is one of the challenges of security management that not only suffered by the Police and TNI, and other security actors, but also experienced by many actors other government institutions. This is like trying bridged by the National Security Bill. 

There are two main things that need to be a concern in drafting the National Security Bill. The first is the National Security Bill should incorporate the principles of democracy and human rights. As a result of termuatnya both these principles, then it should include the National Security bill on transparency, accountability, and reporting.National Security Bill to be transparent and accountable in the sense that the community should know what is happening in organizing security in Indonesia. It deals with activities such as policy implementation of what is spent, what, where made, what purpose, how the process is, how much budget is used, and what the outcome. This is to cover up a secret mission that made the device or instrument of the state and intended to injure his own people and to avoid misuse or distortion of the use of the budget.Nevertheless, not necessarily all of which must be done at a time when executed. This is because related to the type of mission, and the need for speed in responding to threats. However, the important point is to open space to public accessibility terdahap an activity involving governance, in this case the implementation of national security, in a stage of time. So this can provide supervision by the assurance process. Then, it is important in the application of the principles of democracy and human rights to ensure a reporting mechanism, investigation, and recovery in a centralized agency that specialized security-related operation. This mechanism is to ensure that there is an institution devoted to the care of the problem of abuse of authority or the state in relation to or connection with the rights of citizens. Starting from receiving reports, conducting investigations and inquiries, until the administration's decision to, for example provision of recovery, or compensation if it is true there is a violation of the rights of citizens during the process of national security. And it is important to emphasize that the safety of the complainant to obtain a guarantee from the state.

The second thing to consider in drafting the National Security Bill which also emphasizes the importance of a mechanism that can ensure a process of reporting, investigation, and restoration of human rights or democratic principles is still a past trauma. The biggest clash in the process of drafting Kamnas resistance is related to society caused by trauma on the occurrence of many human rights violations and lack of clarity to the process of investigation into human rights violations. Trauma is probably not going to continue to haunt if the process of investigation into human rights violations that occurred throughout the history of New Order and the closest is the event in May 1998, and the assassination of human rights activist, Munir, can be solved and revealed. However, because it is the opposite happens, then the range of conversation, discourse, or discourse relating to national security and centralization of governmental authority and powers of the security sector terhdap will always be regarded with suspicion, however well a development of the national security system, or a bill National Security prepared.

Although some of the things that become the background preparation of the National Security Bill are the things that are experienced by the organizers of the government and state security actors, but there are some things that can be a misinterpretation when not straightened out.

First, the preparation of the National Security Bill that has a tendency to explore the many sectors and fields, prejudice and suspicion that there is a willingness to re-open the gap to the control of the state by the "security regime". Prejudice was raised when the approach used in any security threat is its militaristic approach. This concern is justified when it is associated with a past history where "the military regime" coloring almost all aspects or areas of government. And although the reforms have been floated and the historical record, the fear of re-mastering effort by an authoritarian state is still strong. This is because the absence of a complete settlement of past human rights violations and lack of seriousness towards the completion of various violations. So that a very large resistance created when there are many businesses that feared the government to restore the pre-reform conditions. So it is necessary, for example, that the approach used in the completion of a variety of potential threats is no longer a militaristic, but rather emphasize the role of relevant institutions in some respects the authority of the institution and the community involvement in the handling of the threat, especially in the handling of threats stages do not need armed forces. And also it is important to resolve various human rights violations in the past as a form of understanding of reform and the importance of democratic values ​​and human rights in Indonesia to walk. So when the National Security Bill is sought to be run and well received, the first phase to be completed is not on the substance of the bill, but the necessity of settlement of various things which the bill is acceptable, as the investigation into the events of human rights violations that occurred in Indonesia . So that the various debates relating to the National Security Bill before entering into the substance, must be completed prior various problems of the condition which the bill was made.

Second, the various problems inherent in the management practices in specific institutions that must be completed first.Especially relating to the capacity of each state institution as has been mandated. At this level, the capacity of each institution is maximized sectorally. It also includes the ability to coordinate inter-departmental working. Which path itself can be reached without going through legislation, such as limited only by the direction of the president. So not all the things listed and charged through the National Security Bill. Thus, the National Security Bill can be directed to things that are special and urgent, and applies when there is a determination of the state. So every institution can specify what specific things that need to be handled in coordination relating to national security. This is to eliminate the suspicion of the possibility of securitization of various things which declared a national security threat and consequently able to exert coercive state devices. Thus, the bill directed to the handling of national security threats that are urgent and can not be resolved in the normal institutions. Thus, rules of engagement or SOP can be prepared, not to address the threat of a general nature, but the threats that are specific and urgent.

Last, preparing a National Security bill which is intended to respond to various forms of threats that could harm the integrity of Indonesia is an important country. But even more important to consider the various political background, history, resources and the various contexts in which the bill was drawn up. Develop a National Security bill which might be expected to be able to provide the legal foundation for the establishment of settlement schemes or the creation of various forms of threats in the future, should not be a misnomer as the source of the threat. Fear appears to be a misuse of legal substances from the National Security bill would be good if resolved not only with the socialization of the importance of National Security Bill, the background needs, as well as an overview of substance. Rather, it must be clarified before a commitment to respect democratic values ​​and human rights through the completion of various actions that violate these principles along with the openness and accessibility of the implementation of security which has been running. So many parties can be assured that the National Security Bill is built on the basis of both principle and not just include them in the form of chapters to obtain approval and convince the various parties.

Paper Presentation at FGD with Indonesia Police and TNI, also Related Stakeholder 

Problem of Protecting Indonesian Migrant Labor

Problem of Protecting Indonesian Migrant Labor 

By David Raja Marpaung S.Ip M.Def

            Indonesia has a complex and fragmented labor market.  It has a low-wage economy with significant disparities between the wages paid to expatriates and high-skilled local professionals employed by multi-national corporations and agencies and those paid to civil servants and employees of  local companies. There are also considerable discrepancies between the wages of managerial staff and low level employees within companies.

            Economic reasons drive the majority of Indonesian labor migrants to migrate abroad, to improve\ the economic status of themselves and their families. High levels of unemployment and underemployment in Indonesia push many individuals to look for jobs outside their area of origin and many may decide to go abroad after hearing about the availability of jobs from recruitment agents and social networks and the higher salaries on offer abroad.

            According to the Ministry of Manpower and Transmigration in 2006 there were 2.7 million Indonesian citizens working legally abroad, these workers constitute approximately 2.8 percent of the Indonesian workforce. The majority of these labour migrants are women working in the domestic or service sectors. They are concentrated in Southeast and East Asia and the Middle East, in particular Malaysia, Singapore, Hong Kong SAR (Hong Kong Special Administrative Region), Taiwan Province of China, Saudi Arabia, Kuwait and the United Arab Emirates

            One of the main problems identified in the report is a lack of cooperation amongst government agencies in the implementation of Law No 39/2004. As Law No. 39/2004 does not explicitly state the responsibilities of each ministry or department throughout the migration process, confusion and power struggles within the Government of Indonesia have followed, especially between the Ministry of Manpower and Transmigration and the newly established National Authority for the Placement and Protection of Indonesian Overseas Workers (BNP2TKI). Regulations have now been put in place in an attempt to establish a division of jurisdiction between these two authorities, however, to date, these regulations have not had the intended effects.

            There are about 11.000 cases of violence was experienced by Indonesian migrant workers due to the weakness of government's protection. Malaysia and Middle East Countries were unfriendly countries for migrant workers from Indonesia[1].

Seven Problems of Indonesian Migrant Worker

            The examination by BPK and analysis by another expert found seven main issues of one of the largest foreign exchange contributors. The seven main issues that cause the ineffectiveness of Indonesian migrant worker placement and protection are[2]:
First, the recruitment has not yet been backed by valid and transparent processes. So the certainty, justice and protection for the workers are not guaranteed,
Second, the preparation of healthy and skilled workers has not been based on strict policy, integrated training and examination system, or periodic and consistent supervision.
Third, the procedural preparation of lawful worker has not been supported by integrated system, or good and consistent law enforcement.
Forth, the implementation of insurance for the workers has not yet given just, guaranteed and transparent protection.
Fifth, the data of the worker placement is not accurate, so it is not in accordance with the efforts of protection for the workers abroad.
Sixth, the handle and solution of troublesome migrant workers abroad are partial.
Seventh, the simultaneous evaluation into the data and information of migrant worker issues has not been carried out comprehensively.

Building Protection to Indonesian Migrant Labor

            There is a big disaster at this month to Indonesia, Indonesian government failed to give adequate diplomatic support to Ruyati binti Satubi, who was executed in Mecca this June for killing her employer’s wife with a machete. The Saudi interior ministry said Ruyati confessed to her crime and that the death sentence was upheld by the country’s Court of Cassation (court of appeal) and Supreme Court. The execution was the result of the government’s negligence and showed its lack of diplomatic clout. 

            Beside Ruyati, there about 200 migrants’ labor that potential get dead punishment abroad[3]. About 70 Percent labor related with drug cases and 20 percent of the crime of murder.

            According to these fact there are several policy that must be implemented by Indonesia government and another stakeholder related with Migrant Labor:

1.    Provide special legal protection to Indonesian migrant workers and establish special body temporarily to solve recent condition problem

2.    Establish  Special Commission to investigate the murder of Indonesian migrant workers and tortures committed by the employers of Indonesian migrant workers and placement agencies

3.    Ratify the International Convention on the Protection of the Rights of All Migrant Workers and the Members of their Families

4.    Establish a system and mechanism for the process of the placement of work that will guarantee the protection of migrant workers and the members of their families.

5.    Formulate a MoU in the placement of Indonesian Migrant Workers between Indonesia as the Country that sends Indonesian migrant workers and the Countries that hire Indonesian migrant workers to guarantee the protection of Migrant Workers and the Members of their Families.

           

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[1] http://www.ejobz.com/DetailArticles.asp?offset=66&NewsSubject=11.000%20Indonesian%20Migrant%20Violance%20Cases

[2] http://en.vivanews.com/news/read/229075-bpk-finds-seven-issues-of-migrant-workers

[3] http://www.detiknews.com/read/2011/07/01/134831/1672593/10/sby-200-tki-terancam-hukuman-mati-20-persen-karena-kasus-pembunuhan?n990102mainnews