Julian Assange is a phenomenon. The founder of WikiLeaks has in the last several weeks released more than 250,000 secret diplomatic cables from US embassies in a number of countries. His action has also inspired hackers in other parts of the world, like Indonesia, to create Indoleaks, and other “leaks”. It seems hard to halt what he has set in motion.
This event has shown us how a regime of secrecy is so easily unveiled by means of sophisticated information technology and can spread all over the world uncompromisingly.
The question is whether the policy regulating state secrets, is still necessary, while in this global era secrecy is no longer a taboo to uncover. The bill on state secrets will reportedly be proposed next year for discussion under the National Legislation Program.
Why are we concerned about the State Secrets Bill? What about its position vis-à-vis the public information transparency law (KIP)?
The debate so far has placed the bill as a defendant that can give rise to different kinds of constitutional confusion, because it is seen as capable of reducing state secrets to bureaucratic secrets, as the institution whose power is regulated by the constitution can have its authority reduced by the bill.
The Supreme Audit Agency (BPK), for instance, will not be able to execute its duty to the maximum because the classification of secret documents poses an impediment to its audit function.
This is regarded as reducing the constitutional role of the BPK. The same is true of the other public institutions such as the Supreme Court (MA) and the Constitutional Court (MK).
They may be hampered in seeking out evidence for reasons of state secrets. Even legislative bodies like the House of Representatives will experience the same thing.
There is fear that the House’s inquiry can be rendered ineffective as the government refuses to turn over the documents needed for investigation under the cloak of state secrets.
The case is even more so in the military operation budget, which has so far been classified as “top secret”.
In fact, the budget issue should not involve secrecy at all because it has to be transparent and meet public accountability requirements.
The military strategy can be secret, so can military tactics and operation, but it is not the case with the budget.
Most countries in the world, even the top advocates of democracy, once needed the legal umbrella of state secrecy to create balance in resisting the vast access to information, freedom of expression and other private rights.
But in line with global changes, many countries already applying this law on state secrets later review it to restrict any excess of secrecy. Indonesia is no exception and now in the process of deliberations.
The question, however, is that the law on state secrets is often expanded and broadened in coverage compared with international and regional value standards.
The state secrecy expansion affects several areas such as the definition of state secrets, which frequently invites different questions; the classification of types of “secret” information including new “non-secret” categories, which will just endanger the freedom to access information important to society; the expansion of classifications; and the reduction of the control function of the House and authorized agencies as regulated by laws.
Undeniably, each country possesses highly sensitive information connected with its national security, which requires government protection and regulation.
In Indonesia this problem becomes complicated as national security is often unilaterally defined by the government, interpreted in terms of geopolitics and limited to state-nation relationships having to do with various issues including deterrence, power balance and military strategy.
The important things to be observed in discussing the State Secrets Bill currently in the making are several basic principles to be included as a frame of reference in its formulation.
Among others are The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. The Johannesburg principles demand maximum access and limited exemption (MALE), which emphasize that all information held by public officials is basically open.
Exceptions are strict in nature and very limited for the sole protection of legitimate national security interests, strengthening of the state capacity in responding to armed violent threats, and continued guarantee for public interests.
Therefore, it should contain the principles of justice, non-discrimination, human rights and anticorruption.
Second, the bill needs to regulate the classification of types of information, scopes of restriction, periods of classification, the procedure/mechanism for stakeholders, and the agency appointed to settle disputes arising as a consequence of the enforcement of the state secrets.
This is important to understand in view of the frequent procedural conflicts particularly when the public and journalists try to obtain and publish information for society.
Third, rigid restriction on freedom of information access imposed under the pretext of national security protection in reality often results in national security being more seriously spotlighted.
The national security excuse is just being used to erode the basic rights of citizens. This situation is even noticed in several countries known as champions of democracy such as the US and European nations.
Last, excessive protection of secret information must not be used to smother discussions on crucial issues.
The above points are important to observe because excessive secrecy imposed by the relevant government agency will be counterproductive to what is desired. Such limitations will weaken protection on the important information itself.
Finally, too much secrecy will have the implication of a huge cost expenditure, which will directly affect the budget and become a significant government burden.
Even in the US, according to research conducted by the Organization for Security and Cooperation in Europe (OSCE) in 2007, the creation and protection of state information secrecy cost the budget more than US$9.9 billion in 2007.
But of the disadvantages cited above, the most important consequence is that the situation will wear away public confidence in the government, especially when force is exercised such as for the support of certain political agendas or abuse of interests/powers, corruption and mismanagement, as exposed by Assange in his WikiLeaks against the US government.
If this happens, the credibility and legitimacy of government authority will be seriously questioned, which will lead to the government facing variou difficulties in promoting public support for whatever activity.
The writer is a researcher at the Social and Cultural Research Center, Indonesian Institute of Sciences, and the Indonesian Institute.
http://www.thejakartapost.com/news/2010/12/20/the-state-secret-dilemma.html
