Indonesian anti-terror army troops take part in an exercise to help police fight terrorist groups. (Antara/Basri Marzuki)

In times of conflict, the law should not fall silent. And with the new, tougher anti-terrorism law currently before the House of Representatives, the question remaining before us is no longer one of silence but of what kind of law.

In the wake of Jakarta'€™s January 14 terrorist attack, arguments for strengthening the existing counterterrorism legislation are clearly sound as the hastily prepared Law No. 15/2003 does have weaknesses. Overseas military training, foreign terrorist fighters, the Islamic State (IS) phenomenon and preparatory acts of terrorism are a few of the country'€™s worries. They need to be addressed urgently as the nature of Indonesian terrorism has changed and security risks continue to evolve. Here pundits and politicians agree. But this time urgent should not be synonymous with haste.

The devil in details of the new draft revision for the counterterrorism law lies in at least two significant issues: intelligence coordination and extended powers for law-enforcement officers.

Intelligence gathering and coordination for counterterrorism is not properly regulated in the existing laws. Though counterterrorism intelligence is coordinated by the National Counterterrorism Agency (BNPT) as stipulated in the proposed draft, based on the Intelligence Bill it is the State Intelligence Agency (BIN) that has the authority to coordinate all intelligence information and agencies. In practice, the National Police have played a pivotal role but its efforts have been relatively independent. The recent Jakarta attack exposed ample shortcomings and lessons to be learned. In the broader national security context, early terrorism warning mechanisms could be enhanced through better coordination among intelligence agencies.

I cannot stress this enough as the new draft includes provisions that would allow Indonesian citizens found to have participated in military training or war here or overseas to be deprived of both their passports and their citizenship. Police need to coordinate with the military, intelligence bodies and Immigration to make this effective. In a post-Snowden and WikiLeaks world, intelligence sharing should not just be laws but norms in the fight against terrorism.

For intelligence gathering purposes, the new draft also appears to provide security agencies with the authority to detain and interrogate terror suspects based on suspicion alone and without necessarily contemplating filing criminal charges. Based on changes to articles 25 and 28 in the draft, the police can detain a suspect for up to 390 days and prosecutors can then hold the same person for a further 150 days. A terror suspect can thus be detained for up to 540 days without legal certainty. Such a practice could be regarded as a form of arbitrary detention and speaks volumes on the position of human rights in the draft. Presumption of innocence is officially out the window.

Terrorising suspected terrorists in reality has not been proven to be an effective counterterrorism measure. From other countries'€™ experiences, we know it only enflames the backlash at the government and provides the needed justification for radicals to continue waging jihad against perceived tyrannical governments that they consider illegitimate, particulalry if supported by Western countries. Repression indeed begets resistance. Suharto'€™s New Order produced Indonesia'€™s most potent terrorist organisation Jemaah Islamiyah with excessive security measures giving birth to vengeance and more radicals.

Although we may perceive terror suspects as wanton and gratuitously violent people, we cannot run from the fact that they are also citizens who have rights that should be protected by the law. But if we throw a terror suspect into legal limbo, or enact counterterrorism measures that don'€™t respect the law, we will have our own Guantanamo. Trust in the law and the legal system it works through, however imperfect they may be, is what separates us from terrorists. The ring of Gyges should not be given to any shepherds around the hamlet and nor need anyone enter a Hobbesian contract with the state. We have learned the hard way in the past that extensive power is often authoritarianism in disguise.

Fear is the most potent of political weapons for the terrorists. And we are no better than the terrorists themselves when we foster among the public an atmosphere of alienation, fear and suspicion, which they thrive on anyway. Once we remove presumption of innocence, violence resumes. American revolutionary leader and former US president John Adams has it right: If innocence itself is brought to the bar and condemned, it would be the end of security whatsoever. Let'€™s not repeat our mistakes in the name of security lest we get condemned by history. (+)

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Rakyan Adibrata
Regional representative for the International Organization for Security and Intelligence (IOSI)

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