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