Act on State Intelligence should provide assurance that the organization and activities of intelligence would not be misused to threaten the safety of citizens. Therefore, the purpose of the state intelligence organizations are not solely for state security, but it also is for the security of the citizens themselves.
"Therefore, the fact that should be regulated in the Law of the State Intelligence is the limit of the organization, because it is very important given the nature and character of intelligence that is closed, secretive and prioritize the need for speed so that clear rules and limits," said Dr. Muhammad Ali Syafa’at, SH, MH when ordered as an expert in court petition 7/PUU-X/2012 number of judicial review of Law Number 17 Year 2011 on State Intelligence (Act of the State Intelligence) that was held at the Constitutional Court on Thursday ( 04/12/2012) afternoon.
The trial court hearing the agenda of the applicant and the Government Experts was conducted by the Panel of Judges Moh. Mahfud MD (chairman of the panel) was accompanied by a seven-member, Achmad Sodiki, M. Akil Mochtar, Maria Farida Indrati, Muhammad Alim, Ahmad Fadlil Sumadi, Hamdan Zoelva and Anwar Usman.
On hearing this the fifth time, in addition to Syafa’at, Petitioner also presented Jaleswari Pramodhawardani, M. Hum. While the Government to bring Prof. Dr. Arief Hidayat, SH, and Prof. MS. Dr. Edward Omar Sharif Hiariej, SH, M. Hum.
Furthermore, Syafa’at states, in general intelligence function is information gathering, information analysis, covert operations and counter-intelligence. Everything related to the information, namely how to provide information as a decision-making. In certain respects the intelligence to perform covert operations and counter-intelligence measures. It was limited in nature, because it can only be carried out secret operations overseas. Then, counter-intelligence can only be made against foreign intelligence activities in the country and abroad. "So that cannot be made to the citizens," he explained.
The State Intelligence Act, there are three functions of intelligence, namely the investigation, security and raising. Of the three functions, only one related to the information, namely the investigation function. While security and raising, there is no clear criteria about both of these things, so in it could include covert operations and counter-intelligence measures. Security functions and raising the provisions of Article 6 of the Act of State Intelligence, does not provide restrictions should only be done abroad, or simply be made to the citizens. "If we look at the definition of a threat in Article 1 number 4 of the State Intelligence, then it should be done, both domestically and abroad, both to citizens and against foreign intelligence activities in the domestic intelligence," said intercessor ‘ at.
Meanwhile, the experts presented by the Government, Edward OS Hiariej, in his statement stated, the substance of the State Intelligence Service Act in the context of criminal law is to protect the interests of the country. In criminal law, the principle of legality is one of the very fundamental principles. The principle of legality has two functions: the function of protecting, protecting individuals from arbitrary state action against its citizens. On the other hand the principle of legality has a preventive function, in the sense that within the limits prescribed by law, the state has the authority and the authority to perform an action. To protect the interests of the country, intelligence reports can be used as preliminary evidence is sufficient, but also to avoid arbitrariness. "So, there is a balance between the interests of the laying of individual and state interests," said Eddy Hiariej.
Furthermore, criminal law experts, Gadjah Mada University (UGM) is asserted that the provisions of Article 26, Article 44 and Article 45 of Law of the State Intelligence formulated clearly and not be multiple interpretations. The provisions of Article 26 of Law Act of the State Intelligence govern adresat (legal subjects) are forbidden to perform an action. While Article 44 and Article 45 set out the qualifications actions can be imprisoned, with different forms of error. The provisions of Article 26, in conjunction with Article 44 and Article 45 are not separated from the provisions of Article 25 which categorizes the secret intelligence service as a state secret.
Thus, the provisions of Article 44 and Article 45 would further clarify the provisions that contain restrictions on who could be convicted adresat in Article 26, the substance of Article 26 is contained in Article 25. "Strictly speaking, the provisions of Article 25 and Article 26 in conjunction with Article 44 and Article 45 of the Act a quo should be read in one breath so that it meets the principle of lex chert and interpretations are not satisfied that the principle of lex scripta in the formulation of the norm," said Eddy.
For information, test the constitutionality of the law of the State Intelligence material was submitted by the Society for Participatory Society Initiative for Transitional Justice (IMPARSIAL); Institute for Policy Research and Advocacy (ELSAM), the Indonesian Legal Aid Foundation (YLBHI) Equal Society; Alliance of Independent Journalist; Mugiyanto ., et al. Law on State Intelligence material being tested, namely Article 1 paragraph (4), subsection (8), Article 4, Article 6 paragraph (3), Article 9 b, c, d, e, Article 22 paragraph (1), Article 25 paragraph (2), paragraph (4), Article 26, Article 29 letter d, letter d Explanation of Article 29, Article 31, Explanation of Article 32 paragraph (1), Article 34, Explanation of Article 34 paragraph (1), Article 36 , Article 44 and Article 45.
According to the Petitioners, Article 6 paragraph (3) along the phrase "and / or the opposite party and against the interests of national security" contrary to Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. The phrase gave birth to a number of definitions of threats, security, national interests, and the opponent, making it easy and potentially abused by the intelligence and the interests of the state the power to conduct repressive actions against citizens.(Rosihin Nur Ana / mh/Yazid.tr)
Thursday, April 12, 2012 | 18:31 WIB 135