Draft for the State Intelligence Law of the Republic of Indonesia
Crisis Group translation from the original parliamentary initiative dated 16 December 2010
Considering:
a. that to fulfill the national objective of a state which protects each and every Indonesian citizen, advances general prosperity, enlightens the life of the nation and helps maintain a global order based on independence, lasting peace and social justice as mandated in the preamble to the 1945 Constitution of the Republic of Indonesia, it is important to undertake early detection that can support efforts to deter all manner of threats, disturbances, obstacles and challenges that endanger the existence and integrity of the Unitary State of the Republic of Indonesia.
b. that in accordance with the changes, developments and conditions of the strategic environment it is necessary to undertake early detection toward several forms of threats both from inside and outside the country that are complex and range over a wide spectrum;
c. that to undertake early detection and prevent an emergency arising from these threats, a state intelligence capacity is needed that is professional, strengthens cooperation and coordination of state intelligence and supports the rule of law, democratic values and human rights;
d. that in order to give legal certainty and in accordance with the legal needs of the public, the conduct of state intelligence as the first line of national security must be regulated more comprehensively
e. that based on the considerations outlined in a, b, c, and d a law on state intelligence is needed.
Recalling: Articles 20, 21 and 28J of the 1945 Constitution of the Republic of Indonesia
In mutual agreement, the People’s Representative Council of the Republic of Indonesia and the President of the Republic of Indonesia decide to enact: The Law on State Intelligence.
CHAPTER I: GENERAL PROVISIONS
Article 1
In this Law, what is meant by:
1. Intelligence is the knowledge, organisations and activities related to the formulation of policy and national strategy based on analysis of information and facts collected through methods of intelligence work for early detection and warning in order to prevent, deter and tackle any threat against national security.
2. State intelligence is a government institution that is an integral part of the national security system with powers to carry out the functions and activities of intelligence.
3. State intelligence personnel are Indonesian nationals with special intelligence abilities who serve in State Intelligence.
4. Threat is any effort, means, activity from inside and outside the country that can be judged as endangering the security, sovereignty and territorial unity of the Unitary State of the Republic of Indonesia, as well as national interests and well-being.
5. Each person means individual persons or legal entities
6. Intelligence secrets are information, material, personnel, and/or intelligence efforts, work, activities protected by confidentiality to prevent access, knowledge, or possession by parties that have no right to them.
7. Intelligence Information Retention Period is the timeframe for keeping intelligence information.
8. Intelligence Information is statements, testimonies, ideas and signs that carry value, meaning and message in the form of data, facts and their explanations related to intelligence.
9. Adversary is a party from within or outside the country that carries out counter-intelligence activities that can harm the interest of national stability.
10. Target is a target [English word used] or a condition that can be accomplished through support.
11. Transnational Crimes are crimes with perpetrators who are not limited by national borders but cooperate through transnational networks with criminal actors abroad.
Article 2
The principles of conducting intelligence include:
a. Professionalism
b. Secrecy
c. Compartmentalisation
d. Coordination
e. Integration
f. Neutrality
g. Accountability
h. Objectivity
Article 3
Essentially, State Intelligence is the first line in the national security system.
CHAPTER II: ROLES, FUNCTIONS AND SCOPE
Section One: Roles
Article 4
The role of State Intelligence is to carry out efforts, work and activities for early detection and development of early warning systems in order to prevent, deter and tackle any threat that can emerge and disrupt national stability.
Section Two: Purpose
Article 5
The purpose of State Intelligence is to detect, identify, evaluate, analyze, interpret and present intelligence in order to give early warning for the anticipation of various possibilities in the shape and form of potential and real threats to the well-being and existence of the nation and state, as well as opportunities for national prosperity.
Section Three: Functions
Article 6
1. State Intelligence carries out the functions of investigation, safeguarding and support.
2. Investigation as stated in (1) consists of a series of efforts, work and activities that are carried out in a planned manner and directed to search, find, collect and develop information into intelligence information; and that can be presented as input for policy formulation and decision-making.
3. Safeguarding as stated in (1) consists of series of organised activities to prevent and/or counter efforts, work and activities of [other] intelligence agencies and/or adversaries to harm the national interest and/or stability.
4. Support as stated in (1) consists of series of planned activities directed toward influencing a Target [in a way that will] benefit the national interest and/or stability.
Section Four: Scope
Article 7
The scope of State Intelligence is as follows:
a. Domestic
b. Foreign
c. Ideology
d. Politics
e. Economy
f. Social Culture
g. Defence and/or security
h. Law
i. Natural resources
j. Information and communication technology
CHAPTER III: STATE INTELLIGENCE MANAGEMENT
Section One: General
Article 8
State Intelligence is managed by:
a. State Intelligence institutions
b. Ministries or non-departmental and/or regional government institutions that carry out intelligence functions.
Section Two: State Intelligence Management
Article 9
1. State Intelligence institutions stated in (8)(a) consists of:
a. Intelligence of the Indonesian National Military
b. Intelligence of the Indonesian National Police
c. Intelligence of the Indonesian Attorney General’s Office
d. State Intelligence institutions stated in this article have the obligation to coordinate with the state intelligence coordinating institute through the chiefs of each organisation.
Paragraph 1
Intelligence of the Indonesian National Military
Article 10
1. Intelligence of the Indonesian National Military stated in Article 9(1)(a) carries out the functions of state intelligence stated in Article 6(1).
2. The functions stated in (1) are carried out through strategic intelligence efforts, work, and activities, as well as development of strategic intelligence capabilities in order to support the main duty of the Indonesian National Military in accordance to the existing laws.
Paragraph 2
Intelligence of the Indonesian National Police
Article 11
1. Intelligence of the Indonesian National Police stated in Article 9(1)(b) carries out the functions of state intelligence stated in Article 6(1).
2. The functions stated in (1) are carried out through criminal intelligence efforts, work and activities, as well as, law enforcement to support the government duties in order to maintain domestic security in accordance to the existing laws.
Paragraph 3
Intelligence of the Attorney General’s Office
Article 12
1. Intelligence of the Attorney General’s Office stated in Article 9(1)(b) carries out the functions of state intelligence stated in Article 6(1).
2. The functions stated in sub-article 1 are carried out through law enforcement intelligence efforts, work and activities in order to support prosecutorial powers of the attorney general’s office in line with the structural authority of law enforcement and judicial agencies in accordance to existing laws.
Article 13
Duties, powers, organisational structures and work systems of the state intelligence institutions stated in
Articles 10, 11, and 12 follow existing laws.
Section Three: Ministries or Non-departmental and/or Regional Government Institutions
Article 14
1. In addition to the State Intelligence institutions stated in Article (9)(1), ministries or non-departmental and/or regional government institutions carry out the intelligence functions of investigation in accordance with existing laws.
2. In order to carry out the intelligence functions, ministries or non-departmental and/or regional government institutions have the obligation to coordinate with the state intelligence coordinating institute through the chiefs of each organisation.
CHAPTER IV: STATE INTELLIGENCE PERSONNEL
Section One: General
Article 15
State Intelligence Personnel are Indonesian nationals who meet requirements set forth in existing laws and hired by officials with authority to serve in the intelligence services.
Section Two: Rights and Obligations
Article 16
All State Intelligence Personnel have the right to:
a. receive protection in carrying out tasks, efforts, work, activities and functions of intelligence;
b. receive protection for their families when a state intelligence personnel is carrying out tasks, efforts, work, activities and functions of intelligence;
c. receive continuing and advancing intelligence education, training and assignments.
Article 17
All State Intelligence Personnel have the obligation to:
a. conceal all efforts, work, activities, aims, information, special facilities, tools and special equipment, support and/or personnel related to carrying out State Intelligence functions and activities;
b. obey the State Intelligence Code of Ethics;
c. take a State Intelligence oath or pledge;
d. carry out tasks and functions with professionalism based on operational work plans in line with the State Intelligence Code of Ethics and existing laws.
Article 18
1. Before being hired as a State Intelligence Personnel, every State Intelligence Personnel candidate has the obligation to take a State Intelligence oath or pledge based on each person’s religion or faith.
2. The oath or pledge stated in (1) is as follows:
“In the name of God, I solemnly pledge that I will be loyal to the Unitary State of the Republic of Indonesia based on Pancasila and the 1945 Constitution of the Republic of Indonesia, that I will uphold human rights, democracy and the rule of law, that I will carry out duties and powers of my profession seriously, meticulously, objectively, honestly, courageously and professionally, that I will uphold the State Intelligence Code of Ethics in every location, time and situation, that I will never give up carrying out all the duties and obligations of my job,[and] that I will hold tight every secret State Intelligence in any kind of situation.”
Section Four: Code of Ethics and State Intelligence Honorary Council
Article 19
1. State Intelligence Personnel are bound by the State Intelligence Code of Ethics in carrying out their duties.
2. The state intelligence coordination institution will compose the State Intelligence Code of Ethics as stated in (1) above.
Article 20
1. The State Intelligence Honor Council will supervise the implementation of the State Intelligence Code of Ethics.
2. The State Intelligence Honor Council stated in (1) has the power to examine and adjudicate cases of violations of the State Intelligence Code of Ethics committed by State Intelligence Personnel.
3. The rules on the composition and administration of the State Intelligence Honorary Council stated in (1) will be further regulated in the regulations of the state intelligence coordination institution.
Section Five: Recruitment and Professional Development
Paragraph 1: Recruitment
Article 21
1. The sources of State Intelligence Personnel are the general public, the Indonesian National Military headquarters, the Indonesian National Police headquarters, the Indonesian Attorney General’s Office and other state intelligence institutions.
2. In creating professional State Intelligence institutions, the recruitment of personnel stated in (1) above will be conducted based on requirements and through a selection process that will be further regulated in the regulations of the head of the state intelligence coordination institution.
Paragraph 2: Professional Development
Article 22
1. The development of professional capabilities of the State Intelligence Personnel is conducted through continuing and advancing intelligence education, training and assignments.
2. The development of professional capabilities of the State Intelligence Personnel stated in (1) will be further regulated in the conventions of the head of the state intelligence coordination institution.
Section Six: Protection of State Intelligence Personnel
Article 23
1. The state has the obligation to give protection to all State Intelligence Personnel in carrying out their intelligence duties and functions.
2. Protection stated in (1) covers protection for individuals and their family members.
CHAPTER V: THE CONFIDENTIALITY OF INTELLIGENCE INFORMATION
Article 24
1. Intelligence information is confidential in nature.
2. Intelligence information stated in sub-article 1 covers:
a. state intelligence systems;
b. accesses related to the operation of activities;
c. criminal intelligence data related to the prevention and handling of all forms of transnational crimes;
d. plans related to the prevention and handling of all forms of transnational crimes;
e. documents on intelligence related to the management of national security;
f. state intelligence personnel related to the management of national security.
Article 25
1. Confidentiality of intelligence information is set by the State Intelligence Retention Period.
2. The State Intelligence Retention Period stated in (1) above is 20 years.
3. The State Intelligence Retention Period stated in (2) above can be extended after receiving approval from the Indonesian People’s Representative Council.
4. The State Intelligence Retention Period stated in (2) above can be declared at at end if the intelligence information advertently or inadvertently becomes public knowledge.
5. The State Intelligence Retention Period stated in (2) can cease before the period ends in the interest of a court and based on a court ruling.
Article 26
The public can access Intelligence Information that includes:
a. Intelligence information outside secret intelligence information as stated in Article 24(2)
b. Intelligence information for which the retention period has ceased as stated in Article 25(2)
c. Intelligence information that has become public knowledge as stated in Article 25(4)
d. Intelligence information that is used in the interest of a court and based on court ruling.
CHAPTER VI: STATE INTELLIGENCE COORDINATING INSTITUTE
Section One: Position
Article 27
The state intelligence coordinating institute serves under and answers to the president
Section Two: Functions
Article 28
1. The state intelligence coordinating institute carries out the functions of intelligence stated in Article 6(1) inside and outside the country.
2. Besides carrying out the intelligence functions stated in (1) above, the state intelligence coordinating institute coordinates state intelligence institutions.
Section Three: Duties
Article 29
1. In order to carry out the functions of intelligence stated in Article 28(1), the state intelligence coordinating institute has the duties to:
a. Analyse and formulate national policies on intelligence;
b. Present intelligence products for consideration in setting government policies;
c. Plan and carry out intelligence operations;
d. Facilitate and develop intelligence activities at government institutions.
2. In order to carry out the functions of intelligence stated in Article 28(2), the state intelligence coordinating institute has the duties to:
a. provide materials for consideration based on state intelligence input to the president in the process of deciding national policy and strategy;
b. coordinate counter-intelligence activities inside and outside the country;
c. coordinate support efforts inside and outside the country by the state intelligence institutions;
d. formulate the State Intelligence Code of Ethics and form the State Intelligence Honorary Council; and
e. carry out general development and administrative services in the areas of general planning, administration, organization, operations, human resources, finance, archives, legal matters, signals, logistics and protocols.
Section Four: Powers
Article 30
1. In carrying out duties stated in Article 29(1), the state intelligence coordinating institute has the power to:
a. formulate comprehensive plans and national policies on intelligence;
b. provide intelligence for ministries, non-departmental government institutions, or other institutions based on interests and priorities;
c. cooperate with intelligence of other states.
2. In carrying out duties stated in Article 29(2), the state intelligence coordinating institute has the power to:
a. coordinate intelligence policies;
b. coordinate intelligence functions in each state intelligence institution;
c. shape and regulate the state intelligence system.
Section Five: Special Powers
Article 31
1. Besides the powers stated in article 30(1), the state intelligence coordinating institute has the special powers to intercept communication and check financial flows that are strongly suspected of supporting activities of terrorism, separatism, or other threats, disturbances, obstacles [and] challenges that threaten the sovereignty of the Unitary State of the Republic of Indonesia.
2. Interception of communication stated in (1) above is necessary to carry out the functions of intelligence.
3. In checking financial flows stated in (1), the state intelligence coordinating institute can ask support from Bank Indonesia, the Indonesian Financial Transaction Reports and Analysis Centre (Pusat Pelaporan dan Analisis Transaksi Keuangan, PPATK), non-banking financial institutions and money transfer services.
4. Bank Indonesia, PPATK, non-banking financial institutions, and money transfer services as stated in (3) have the obligation to give information to the state intelligence coordinating institute in accordance with existing laws.
Section Six: Organisation
Article 32
1. The state intelligence coordinating institution is led by a head, supported by a deputy head.
2. The membership of the leadership of the state intelligence coordinating institution includes the chiefs of each state intelligence institution.
Article 33
The appointment and termination of the head and deputy head of the state intelligence coordinating institute will be set out in Presidential Decrees.
Article 34
Additional regulations on the criteria and appointment of the head and deputy head, creation, organisational structure and working system of the state intelligence coordinating institution will be decided through Presidential Regulations.
CHAPTER VII: FINANCING, ACCOUNTABILITY AND OVERSIGHT
Section One: Financing
Article 35
The necessary funding for the running of state intelligence institutions and the carrying out of duties of the state intelligence coordinating institute comes from the state budget.
Section Two: Accountability
Article 36
Operational and accountability reports of the state intelligence institutions are presented to the president by the head of the state intelligence coordinating institute.
Section Three: Oversight
Article 37
1. The Indonesian People’s Representative Council oversees the policies, activities and use of budget of the state intelligence institutions.
2. In conducting oversight for examining and resolving problems related to policies, activities and use of budget of the state intelligence institutions, the commission in the People’s Representative Council covering state intelligence matters can form a working committee as needed.
3. The working committee stated in (2) above has the obligation to protect the confidentiality of intelligence information stated in article 24 of this law.
CHAPTER VIII: CRIMINAL PROVISIONS
Article 38
Anyone who deliberately leaks confidential intelligence information stated in Article 24 is punishable with a minimum jail sentence of seven years and a maximum of 15 years and a minimum fine of Rp.50 million (about $5,800) and a maximum of Rp. 500 million (about $58,000).
Article 39
Anyone who through negligence causes the leakage of confidential intelligence information stated in Article 24 is punishable with a minimum jail sentence of five years and a maximum of 10 years and a minimum fine of Rp.20 million [about $2,300] and a maximum of Rp. 100 million [about $11,600].
Article 40
1. Every State Intelligence Personnel who reveals the efforts, work, activities, aims, information, special facilities, tools and special equipment, as well as support, and/or personnel related to the conduct of functions and means, as well as work and activities of state intelligence institutions as stated in Article 17(a) is punishable with a minimum jail sentence of nine years and a minimum of 20 years and a minimum fine of Rp.1 billion [about $116,000] and a maximum of Rp. 10 billion [about $1,160,000].
2. If the crime stated in (1) above is carried out in time of war, the person can receive an additional one-third of each maximum penalty.
Article 41
Every State Intelligence Personnel who conducts interception of communication outside the functions of investigation, safeguarding and support as stated in article 31 is punishable with a maximum jail sentence of seven years and a maximum of ten years and a minimum fine of Rp. 500 million [about $58,000]and a maximum of Rp. 10 billion [about $1,160,000].
CHAPTER IX: TRANSITIONAL PROVISIONS
Article 42
1. The state intelligence coordinating institute should be created within twelve months after the enactment of this law.
2. Before the state intelligence coordinating institute is formed, the State Intelligence Agency can continue to carry out its duties.
Article 43
When this law comes into force, rules on:
a. State Intelligence Code of Ethics
b. State Intelligence Honor Council;
c. Recruitment of State Intelligence personnel;
d. Development of State Intelligence capabilities;
must be enacted within 12 months from the date of this law.
Article 44
Government regulations that will implement this law must be enacted within 12 months from the date of this law.
Article 45
When this law comes into force, all regulations related to State Intelligence are still in force as long as they do not contradict the provisions in this law.
Article 46
This law becomes valid on the date of enactment.