Liberty and security: What Is the proper balance?

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Bakhirun

IO – The recent string of near-simultaneous terrorist attacks on three churches in Surabaya followed by another bombing at the city’s police headquarters and an explosion that rocked an apartment block in Sidoarjo are believed to be linked with last week’s prison riots involving 150 Islamist militants in which five members of the elite Mobile Police Brigade were killed.  Security experts have identified the culprits as members and supporters of Jamaah Ansharut Daulah, or JAD, which is a local jihadi group known to have links with ISIS.

Most Indonesians are on edge, and for good reason. These have been the worse terrorist attacks since the infamous Bali bombings in 2002, and the threat posed by today’s new generation of ISIS-inspired Indonesians could prove deadlier than Jemaah Islamiyah, the al Qaeda-affiliated militant group behind the numerous acts of terror on Indonesian soil that took place starting in 2000 until as recently as 2010.

Jemaah Islamiyah has, for the most part, been broken due to a successful joint counterterrorism effort between the U.S.A. and Indonesia governments.   Indonesia’s special anti-terror police unit, Detachment 88, or Densus 88, can be largely credited for apprehending over 1,000 terrorists since its inception, and they have rightly been given kudos from counterterrorist experts and agencies around the world.

With Jemaah Islamiyah effectively dismantled and its key leaders having been either killed or incarcerated, the question now is, how big is the threat we face from JAD?  Can Indonesia quickly and effectively combat JAD and eliminate any threats its members pose to national security?  More precisely, does Densus 88, the intelligence community and law enforcement agencies at-large have sufficient capacity to deal with this new threat, or is more needed?

Even before we debate whether or not the Indonesian state and its apparatus are prepared to protect its citizens from terrorism, the first and most important step is to settle the legal frameworks under which the government is empowered for counterterrorism efforts.

The National House of Representatives, or DPR, has been debating for nearly two years a revision in the nation’s 2003 terrorism law.  Because of the latest attacks, there is an added sense of urgency to pass a law.  But to act expediently for the sake of being seen to be doing something with the purported purpose of preventing more serious and prolonged attacks could prove to be a serious mistake.

It should not be forgotten lawmakers have come under intense scrutiny and criticism for the draft law currently before the DPR.  The draft includes provisions for an enhanced role by the military.  Antagonists point out that given the military’s past human rights record and the fact the military is not a law enforcement agency, both from a civil liberties and legal point-of-view to bring the military into the counterterrorism equation would be a grave error.

The draft law is also being widely denounced for its giving state officials the authority to arrest and detain suspicious people in certain places for a period of six months without trial.  Supporters of this provision say it is necessary for the purpose of deradicalization.  Critics rightly point out that such broad language without properly defining what constitutes a suspicious person and placing them for as long as six months in unknown detention centers is a gross violation of due process of law and basic human rights.  It also risks opening the door for arbitrary arrests, not just of suspected terrorists but also ordinary citizens who could be targeted by the state because of their political beliefs and activities.

Many human rights activists are skeptical about the real intent of the draft law because it also allows for revocation of citizenship of alleged terrorists and criminalizes insults against the Indonesian state, including anybody who fights for or pledges loyalty to other states; these, taken together with the military being involved in counterterrorism activities and the possibility of the law being abused with Indonesians facing the risk of arbitrary arrests with long detention periods, could spell yet another step backwards for Indonesia’s democracy under Jokowi’s watch.

We would argue the DPR and the president must, first and foremost, prudently weigh the trade-offs between security and civil liberties.  Jokowi is saying he wants the DPR to pass the revised terrorism law before the end of June.  If lawmakers don’t enact the new law, the president has declared he will issue a presidential regulation in lieu of law, or Perppu, which is allowed in emergency situations.

But as argued earlier, expediency carries substantial risks.  If Jokowi issues a Perppu that mirrors the current DPR draft law, some Indonesians may applaud him for doing what the DPR has so far failed to do.  But by sidestepping the legislature, Jokowi will have failed to allow Indonesia’s democratic system of checks and balances to work properly.  This is not to be applauded, but rather harshly criticized.

For sure, there should and must be a proper debate in the public forum about what measures should be taken to combat terrorism.  The current draft law, if it were passed by the DPR or given similar form in a Perppu, would constitute serious abridgements to liberty.  Do the risks we face today from terrorists justify those abridgements, or is a more prudent course more advisable?

Finally, it should be asked whether any curbs on civil liberties that are being considered by lawmakers and the president should be subject to judicial review in the future.  Enacting a law with no process to review its efficacy and possibility to terminate powers such as extra-judicial detentions would serve a critical blow to Indonesia’s democracy.   Eradicating terrorist threats is a necessity, but so is the necessity to protect our liberty—striking the right balance between the two is a delicate and difficult task, but it must be done even if it means we must take more time to find the right answers.