Michael Victor Sianipar – As the judicial review of the 2011 State Intelligence Law enters its final phase, the government is contending that the concerns of the civil rights groups challenging the legislation are unfounded under the contemporary democratic system.

The Advocacy Coalition on the Law on State Intelligence (KAUUIN) argues that the legislation violates citizens' constitutional rights to freedom of expression and access to public information.

The coalition includes the rights group Imparsial, the Institute for Policy Research and Advocacy (Elsam), the Indonesian Legal Aid Foundation (YLBHI) and the Alliance of Independent Journalists (AJI).

Wahyudi Djafar, the coalition coordinator, said without a clear definition of contentious terms and a proper oversight mechanism, there was the potential for violations and abuses of power by the intelligence community.

Indonesia's intelligence law compares unfavorably to similar laws in other countries, he said, because of its broad definition of state secrets and prescribed criminal charges for those deemed to have violated them.

"In the United States, there is greater clarity that those held responsible are the ones with the authority and the duty to keep state secrets," he said at a Constitutional Court hearing on the judicial review last week.

Wahyudi noted that in the case of the diplomatic cables exposed by WikiLeaks, the US government did not prosecute the journalists or civil rights groups that published the leaks.

"The definition of state secrets is quite clear under the Freedom of Information Act and the National Security Act, and it is not as broad as the definition under our law, which includes defense, security, economic stability and natural resources," he said.

The flexible definition, he said, would make it possible to prosecute someone, for example, who tried to investigate mining contracts or corruption cases.

"If someone tried to investigate the contract of Freeport [a major gold and copper miner], they would be deemed liable for a breach of the intelligence law because the case is connected to natural resources," he said.

"There is no clarity concerning what constitutes a criminal act."

Ali Syafaat, an expert witness who testified at the judicial review for the coalition, agreed that state actors rather than members of civil society should be held responsible for the leak of state information.

"If there is a leak, the fault should lie with the intelligence agency," he said. "Leaks happen because the intelligence community is negligent when it comes to state secrets, and they should be prosecuted for that."

However, Arif Hidayat, an expert witness presented by the government, argued that the coalition had failed to prove its concerns were founded.

"The petitioners have not described clearly which constitutional rights are threatened by the intelligence law," he said. "The historical context that they mention [of intelligence abuses under the New Order regime] is traumatic in nature, but conditions have changed today in a more democratic direction."

Arif said the government was unlikely to abuse its power to obtain intelligence or prosecute civil society engaging in the investigation of sensitive cases. "It may not happen and may never happen under a democratic government," he said.

He also highlighted the importance of the legislative process in the passage of the law. "The intelligence law was passed through a legislative process that is democratic and constitutional, both in terms of how it incorporates public aspirations and upholds transparency," he said.

Further, he argued that by highlighting ethnic conflicts, terrorist acts, drug offenses, corruption and "other things that degrade the principles of Pancasila," the law would give the state the power to maintain order under the cover of a legal framework.

Arif acknowledged that there were flaws in the law, saying they were inevitable in any compromise between the effective maintenance of state secrets and openness of public information in a democratic context.

But he said that trust among members of society and the government was key to ensuring a workable system.

"In this transitional era toward democracy, which we have now been in for 14 years, we still have a low-trust society," he said. "In these kinds of circumstances, if we are not careful about administering the republic, there is the possibility of national disintegration."