By: Agus Sudibyo
This paper will describe the information access in Indonesia in two parts. Firstly, this paper illustrates the development of Freedom of Information Act (FOIA) advocacy in Indonesia. Then, it will portray the practice of information access in Indonesia. In the last section, I explain the case study in the media.
I. Advocacy of FOIA in Indonesia.
The legislation process of FOIA in Indonesia has officially been discussed since 2001. Some Non Government Organizations (NGOs), later named the Coalition for the Freedom of Access to Public Information, initiated to compile academic drafts and the draft law for the freedom of access to public information followed by the submission of the drafts to the parliament. The drafts submitted were adopted by the parliament and scheduled for legislation.
Unfortunately, the parliament in the period of 1999 – 2004 failed to complete the legislation of FOIA. This relates to the Indonesia law that does not recognize “Carry Over”. As the function of the enactment of legislation belongs to the legislature and executive, this circumstance causes problems as the legislative discussion becomes more complex and takes time. The deliberate response from the executive (President and the ministers) towards the FOIA draft law was one of the causes as usually the executive attempted to be demanding and not cooperative toward parliament and society initiatives. Therefore, the parliament in the following period (2004 – 2009) theoretically has to start from the beginning.
There is progress in the development of the discussion of FOIA (2004 – 2009). In general, this can be seen from some indicators below:
- Since 2005, the discussion about FOIA achieves the second level of discussion that involves the parliament and the executive teams. Previously, the discussion only occurred in the internal level in the parliament. There was increasing frequency of discussion until July 2006. There were four sessions of FOIA discussion and achieved discussion of 6 out of 66 chapters.
- The FOIA discussion in the internal level of the parliament has become more efficient as they discuss the issue in a small team that formed by the Commission I. This is different from the previous Member of Parliament plan that discuss the FOIA through the Specific Committee. Specific committee is a team that involves politicians across commissions in the parliament. The discussion through this mechanism is more complicated, takes time, is vulnerable to manipulation and involves various wills that are difficult to control.
- The formal political discussion process about FOIA is more open. There are many formal discussions that give opportunity to the society to participate even though they are only passive participants.
- The parliament has become more accommodative to the NGOs coalition’s inputs. In the formal sessions between parliament and the Indonesian Government, the NGO coalition actively assists the parliament by providing counter arguments for the government’s objections towards some chapters in the FOIA draft law. The NGO coalition has initiative to assist the parliament as the parliament does not have sufficient expert staff who understand the issue. Some of the Members of Parliament, in fact, used the advice given by the NGO coalition.
- There are more executive elements that give appreciation, support and positive reaction to the urgency of legislating FOIA. This is important progress as, formerly, the FOIA was considered as an idea from overseas, NGOs and the press against the government. It seems that there is no necessity from the government to the application of FOIA.
The progress of FOIA advocacy in Indonesia can be explained from the role and the attitude dynamics in three elements of FOIA legislation. They are the parliament, government and civic society. It is also important to know the growing of advance initiatives in the local level in order to institutionalize the openness and transparency principal.
1. The Indonesian parliament
The parliament are more accommodative to the civic society initiatives
Below are some civic society initiatives that have been accepted by the parliament:
a. the using of FOIA draft law from the previous period of the parliament as the official draft law for the parliament in the period of 2005-2009. As a result, the recent parliament does not need to generate the draft law on FOIA. This is an advantage because generally, the FOIA draft law from previous parliament period is presentable. The draft law is also 80% similar to the FOIA draft law society version as the parliament draft from the previous period came from the civic society suggestion and initiatives.
b. The parliament agreed to discuss the FOIA without using the Special Committee mechanism. As mentioned before, the Special Committee is more complicated and perilous politically as the special committee is a committee across commissions and a huge team. The Parliament Legislation Body gave the discussion of the FOIA Draft Law to the Parliament’s Commission I. Then, Commission I will form an Operational Committee (Panja) for FOIA draft law, whose working mechanism is simpler.
c. As seen in the discussion with the government, the parliament attempts to keep some important principles on FOIA as recommended by the NGO Coalition, e.g. the maximum access and limited exemption, the using of public balancing interested test mechanism and consequence harm test in the process of exceptional information, and the forming of independent commission in solving information disputes.
d. The parliament has political wills and formal agenda to discuss FOAI. There is a significant improvement compared to the previous parliament that only discussed the draft law at an internal level while the recent Member of Parliament accomplish to carry the discussion in the higher level that involve the government and the member of parliament.
e. The Members of Parliament are more critical toward government position and its argumentation that have tendency to weaken FOAI basic principals.
f. he Members of Parliament are accommodative to inputs and assistance from other groups when they have discussion with the government.
g. The Commission I of the parliament decides to postpone the discussion of the draft law on State Secrecy until they finish and legalize the FOIA Draft.
The government position is divided on FOIA.
a. Some of government departments that support the legislation of FOIA Law
The Department of Finance, The National Development Agency, The Commission of Corruption Eradication, The Finance and Development Supervising Agency, Ombudsman, and The National Human Rights Commission.
These institutions have different interest. Yet, in general they have to face the same situation that there is a need of information access in government institution level. That means both vertical and horizontal information access is needed.
There are some reasons why those State bodies support the legislation of FOIA.
The Department of Finance
This department frequently has difficulties on collecting information in auditing process for National Budget/ Non budgeter/ De-concentration in technical department. Government organizations believe that they do not have to give their finance report to this department instead of president.
The National Development Agency
This state body faces difficulties on accessing information and controlling the accountability of the use of grants and foreign loans in various government departments. The importance of the accountability is not only for the continuity of the loan and the grant but to make sure that the loan and grant allocation go to the right target and are not corrupted.
The Commission of Corruption Eradication
This commission realizes that FOIA Law is an important element to equip the law available to disclose corruption cases. In disclosing the corruption cases, the Commission of Corruption Eradication commonly points to the difficulties of getting information from government bureaucracy and public functionaries. On the other hand, there are no laws that have the power to push public functionaries towards greater openness.
National ombudsman needs FOIA Law with the aim of supervising and controlling how public bodies manage public funds for procurement, routine expenses, government projects, etc. This institution faces the same problem with The Commission of Corruption Eradication.
The National Human Rights Commission
The National Human Rights Commission is always in difficulty when they attempt to access information, data and documents from government institutions and functionaries, especially from military institutions that relate to human rights.
- Some institutions that are reluctant towards FOIA
Department of Communication and Information, Department of Defense, Intelligence Body and Any Military Bodies.
There are some arguments why these institutions are unenthusiastic about FOIA.
h. There is over reaction to freedom and openness in Indonesia
i. Information transparency causes anarchism to public bodies and institutions
j. Public institutions are not ready to face an open information system
k. There will be severe budget impacts on information services as a result of the application of FOIA.
l. The forming of Information Commission is costly
m. The state secrecy is threatened
3. Civil Society
n. The NGO Coalition actively advocates the Draft Law on FOIA. There are some activities to assist and advocate it such as:
a. Conduct pubic discussion and press conference as a medium for the parliament to communicate with the public about FOIA.
b. Generate counter arguments for the government critics on FOIA Draft Law. The NGO Coalition gave these counter documents to Commission I of the parliament.
c. Regular material assistances to Commission I in the process of FOIA sessions.
d. Provide private and group briefings to Commission I of the parliament about some crucial chapters in FOIA
e. Conduct public pressure to the Indonesian Government through press conferences, public discussions and articles in the mass media
Moreover, scholars actively provide contributions in relations between the Draft Law on FOIA, State Secrecy and Intelligence.
- The Indonesian press reaction is unique. The press are not really interested to publish in their media if the Draft Law on FOIA stands alone. However, if the FOIA is compared to the draft State Secrets bill, the Indonesia media would be more active to discuss.
4. Local Initiatives
- Even though at the national level FOIA has not yet succeeded, there are 14 cities and one province that have succeeded in publishing the District Transparency Regulations, Transparency institutional management and public information access in cities and provinces level.
- There are two cities that have a commission of transparency and information.
- The circumstances in Indonesia are similar to, for example, Japan where the institutionalization and legislation of FOIA started from local level.
Some interesting points from the advocacy on FOIA in local level which are more advanced compared to the progress at the national level.
- FOIA legislation initiative is springing sooner in new regencies or in provinces which do not have large economic nor political efficacy, so that the level of corruption is low.
- The legislation process of Local Transparency Regulations involves bottom up participation that begins from civil society and the media.
- There are external factors that support the process. This can be seen from the role of UNDP (United Nations Development Programme) and the World Bank in the legislation process at the local level. As transparency is one of the requirements of grant and loan allocation, the World Bank critically supports the legislation process of the regency transparency regulations.
II.THE ACCESS OF INFORMATION IN INDONESIA
- The Obstacle of Accessing Information for the Media
- There is no regulation that requires public institutions or public functionary to disclose information including to the press. There is only law that guarantees the public right for accessing information. There is Indonesia Constitution, 17 by sector laws including the Press Law. However, these regulations do not systematize the obligation of public institutions to reveal information. This law also does not regulate the information access mechanism in detail.
- There are many regulations that naturally limit the information access, instruction law institution secrecy, functionary secrecy. The regulations are Criminal law, Archives Law, Terrorism Criminal Law, Trade Secrecy Law, Banking law, and various government regulations, president’s decisions and minister regulation.
- Secrecy culture is also one of the obstacles. The evasive of public functionary becomes one of barrier to access information to government department for public and the press. They close up the information access not because of there is no law to regulate. The cultural factor influences these circumstances as they do not regard formal position as a mandate but more as a formal position, as privileges and as an honor. In fact, with the position attached, they should perform their duty responsibly and accountably. In general, the Indonesian bureaucracy is still dominated by the idea of PANGREH PRAJA. That means, they consider themselves higher than publics therefore they do not recognize public service concept.
- Technical problems of accessing information. There is no mechanism on accessing information in public institutions. They do not have strong data bases and information officers. Moreover, there is no standard for serving the public in the government departments.
- Conservative views and misperceptions about freedom of the press. Public formal functions, habitually consider freedom of the press is un-proportional. Some misleading perceptions of freedom of the press are 1. It comes from the West and not originally comes from Indonesia, 2. It is an idea that develops in opposition to government, 3. Freedom of the press is identical to creating chaos as some function formal position thinks so.
- Public’s demand for freedom of the press becomes weak. In general, Indonesians still see the press as “the other”. The Press has not placed and functioned as political equipment for public to control the implementing of authority, as equipment to public scrutiny. In many cases, the society stays away from the press. Press is seen as one entity with state and society. Press is seen as an economic institution instead of a social institution.
2. The opportunity of information access to the media
Indirect information access
Journalists have to face the obstacles; however, it does not mean that they cannot get information about a government scandal. Journalists frequently get indirect information from NGOs, the parliament, independent state regulatory bodies and other information sources.
NGOs get information, data, documents, testimony about corruption, nepotism and bureaucracy malpractice in the government institutions from investigation. NGOs also get documents from information sources. NGOs investigate and supervise the government on various issues such as corruption, environment, human rights, law reformation, military reformation, public service, press freedom, etc.
b. The parliament
In order to implement supervising function, the parliament has a lot of information and data about how the executive institutions and judicative work. With its authority, the parliament has the ability to access directly information from public institutions, call and ask them for explanation, collect secondary information from various institutions such as NGOs, research institutions, independent bodies and information sources.
c. Independent state regulatory bodies
Reformation in Indonesia has caused the formation of independent state regulatory bodies in order to function as check and balance authority. There are the Commission of Corruption Eradication, the National Human Rights Commission, the National Law Commission, The Judicial Commission, the Indonesian Broadcasting Commission, and others. These commissions have direct access to audit and check the effort, accountability, budget from various public institutions especially to the institutions that have indication for corruption.
d. Information Sources
There are many people have a role as information sources in Indonesia. These could be people who have been shoved aside by particular parties, retirement, political enemies of public officers, people who have ambition to political positions or even low level officers who can easily be bribed.
These information sources frequently give important data and documents that relate to corruption, nepotism, human rights violations or other misuses of authority. These data and documents can be delivered to NGOs, the parliament, independent state bodies or to the media.
There are two obstacles that relate to information sources. First of all, there is no legal protection for the information source; consequently, the data and documents have anonymous status. Secondly, related public officers frequently reject to give confirmation towards data given by information sources. It is difficult to validate the data and documents; as a result, the necessity is required to use the data.
3. Mutualism symbiosis between press, NGOs, the parliament and independent regulatory state bodies.
Press needs information that is impossible to get through accessing the information from public institutions/ public officers. Press also needs techniques to collect data and documents as public institutions/ bodies do not want to disclose the information.
On the other hand, the parliament, NGOs, the State regulatory bodies and information sources need the media to publish information. They need media publications for pragmatic and personal reasons, such as popularity. There are also idealistic reasons, such as to disseminate information to society, to collect public support to disclose particular scandals, and to notify the public about particular scandals and to make political pressure to the government.
The problem of information access in Indonesia slows down the transformation from