Passed, with Reservation

The Freedom of Information Bill was ratified with one formal objection. Two crucial articles were resolved through lobbying.

“AGREED!” The cry reverberated across the seminar room when House of Representatives (DPR) Speaker Agung Laksono called for an agreement to ratify the Freedom of Information Bill on Thursday last week. “Indeed, all that remains is a final verdict on the law,” said Arif Mudatsir Mandan, chair of the working committee that drafted the law.

Actually, the approval was not totally unanimous. The National Awakening faction (FKB) was the only one to register a formal objection over the law not coming into force until 2010. “This law is a mandate of reform, so we are making a formal objection that it shall not come into effect for two more years,” said FKB spokesman Masduki Baidlowi.

This was not in fact very surprising. A day before the plenary meeting, the DPR’s Commission I held a working meeting with Communication & Information Minister Mohammad Nuh and Justice & Human Rights Minister Andi Mattalata. During the meeting that opened at 7pm and ended near midnight, only the FKB registered a formal objection over when the law would come into force. On the other issues, all of the factions were in agreement.

According to Arif, it was already apparent a week before the session that the ratification would proceed smoothly. The two most contentious issues, the question of central and regional government state-owned enterprises (SOEs) and the size of penalties for violations by public officials and information users, had already been agreed to through a final round of lobbying at the Sultan Hotel’s ASEAN Room in Jakarta on March 27. Other contentious articles had already been settled earlier.

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INITIALLY, the law was an initiative launched by the DPR for the period 1999-2004, and called the Draft Law on Freedom to Obtain Public Information. Although a special committee was formed on February 18, 2003, deliberations had yet to finish when the assembly’s term in office came to an end. The DPR for the period 2004-2009 continued the initiative and on July 5, 2005 the DPR officially made the draft into a DPR initiative.

There were a number of crucial issues related to the draft law. First, its name. At the DPR’s suggestion, it was called the Draft Law on Freedom to Obtain Public Information. However, “The government was allergic to the use of the term freedom,” said special committee member Andreas Parera. In the end, the name was also changed.

This was just one of the problems. The other crucial articles related to the formation of an Information Commission, what types of information would be exempted, the law’s period of validity, the inclusion or not of SOEs under the category of public institutions, and penalties for information users.

The first three issues were resolved during working committee meetings between June 2005 and January 2008. But this was not the case, however, with the last two. As of early 2008, the DPR and the government were still not in agreement, so a lobbying process began.

The first round of lobbying between government representatives and the DPR took place on February 27, 2008. Taking place at the Nippon Khan restaurant at the Sultan Hotel, the government’s team was represented by Communication & Information Minister Mohammad Nuh, SOEs Minister Sofyan Djalil and Justice & Human Rights Minister Andi Mattalata.

The team was reinforced by the head of the Agency for National Legal Development Ahmad Ramli, the State Secretary for SOEs, Said Didu, and Fredy Tulung, Director-General for Communication Systems & Information Dissemination from the Department of Communication. The DPR’s lobbying team was headed by the chair of the DPR’s Communication Commission, Theo L. Sambuaga, and representatives from each parliamentary faction.

The government expressed the view that the disclosure of information on business strategy at an SOE could result in a decline in competitiveness. “If the strategy and those kinds of things are disclosed, it could reduce competitiveness because their secrets would be known by competitors, right,” said Ramli, quoting from the government’s arguments at the meeting.

Sofyan Djalil supported the argument by stating that political and business regimes had to be differentiated. Speaking to the chief representative from the DPR, Sofyan stated that SOEs are included in the realm of business. The representatives from the DPR disagreed with the arguments. “It can’t be totally separated like that,” said Indonesian Democratic Party of Struggle representative Andreas Parera.

Dedy Jamaluddin Malik from the National Mandate Party faction immediately raised an objection to using the example of the appointment of Andi Arief as commissioner of PT Pos and Syaifullah Yusuf as commissioner of Bank Rakyat Indonesia. “Can this be cited as a state-owned enterprise participating in the realm of business?” asked Dedy. Sofyan Djalil thought for a moment before finally saying, “Oh, in that case [we] have to spell out the definitions.”

The meeting, which began at around 7pm, agreed to a follow-up round of lobbying that would discuss the issue of exactly what can be disclosed about a state-owned enterprise. During the meeting the government also touched on the issue of penalties for information users. The government wanted users to be subject to the same penalties as public officials, while the DPR was of the opposite opinion, that penalties for users should be minimal. “We didn’t get around to discussing the issue of penalties because the issue of SOEs wasn’t finished yet,” said Dedy.

The second round of lobbying was held on March 17 at the Olive Tree Restaurant at the Hotel Nikko Jakarta. The time was similar to the previous meeting although there were fewer participants. Fredy Tulung, Ahmad Ramli and Said Didu represented the government.

At this meeting, the government proposed that three things could be disclosed about an SOE: share ownership; the purpose, aims and business activities of the company; business activities linked to government assignments in public services; along with other information as determined by legislation.

But for the DPR members the offer was not so attractive. “Because the categories were general and not explicit enough,” said Dedy. The lobbying that proceeded for around two hours failed to produce an agreement. In the end, it was continued at the same location and with the same participants, two days later.

During the third round of lobbying, the DPR considered the government’s next offer to be an improvement. The government submitted 13 lists of information that could be disclosed about SOEs. “We finally agreed, because there was a clause that stated that the determination mechanisms could be corrected and the [selection of] commissioners/board of commissioners would be open,” said Dedy.

According to Dedy, with these stipulations being clarified the public could raise questions if the appointment of the commissioners or management was not in accordance with the criteria. Ahmad Ramli however does concede that there is an impression that the DPR suspects that the government took advantage of the SOEs issue for its own interests. “But in the end right, information about SOEs will also be disclosed,” he said.

The meeting, which lasted for around one and a half hours, also discussed the issue of penalties for information users. The government demanded that there be equal treatment for public officials and users who violate the law. “In the end, the compromise was that the severity of the sentence handed down would be the same,” said Arif Mudatsir Mandan.

It was this outcome that was then reported in the following round of lobbying at the Sultan Hotel ASEAN Room on March 27. The government and the DPR’s team of lobbyists submitted the results of the two earlier meetings. First, there would be lists of information that could be disclosed by SOEs. Second, the severity of the criminal penalties and jail sentences for officials and information users would be reduced by half. “The faction representatives accepted the outcome,” said Dedy.

The DPR believes that the law represents the best result that could have been achieved under the circumstances. “This was the best result,” said Dedy. Andreas Parera added, “It is hoped that this legislation can become a [mechanism of] public control over state administration by government and non-government agencies.”

Freedom of Public Information Coalition Lobby Coordinator, Agus Sudibyo, however, believes that the law is worse than the draft initiated by the DPR. He questions the existence of penalties for information users. “Of the 75 countries in the world that have freedom of information bills, only this one provides penalties for information users,” said Agus. The criminal articles can also be interpreted to one’s liking. But, says Agus, this does not mean that it has no positive value. “This law will provide certainty about what must be disclosed and what will be exempted,” he said.

Abdul Manan

Crucial Elements of the Bill

Information that cannot be exposed or exempted (Article 17)
Information that could obstruct the process of law enforcement;
Information that could impinge upon the interests of protecting intellectual property rights and the protection of unhealthy business competition;
Information that could endanger state defense and security;
Information that could damage national economic resilience;
Information that could damage foreign relations;
Information that contains authentic documents of a private nature and the last will or testament of an individual;
Information that discloses matters that are private and confidential.

Information Commission (Articles 23-28)
The National Information Commission shall have a membership of seven people, provincial/regency/municipal information commissions, shall reflect elements of the government and elements of the public;
Recruitment of candidate members shall be carried out by the government. At the national level, selection will be carried out by the DPR, for the regions by the DPRD (Regional House of Representatives).

Criminal Penalties (Articles 51-5)
Any person who intentionally uses public information to violate the law shall be sentenced to a maximum of one year in jail and/or a maximum fine of Rp5 million;
Public agencies that fail to provide public information and cause harm to another individual shall be sentenced to a maximum of one year in jail or a maximum fine of Rp5 million;
Any person that destroys, damages or removes public documents shall be sentenced to a maximum of two years in jail and a maximum fine of Rp10 million;
Any person who intentionally accesses, obtains or provides information that has been exempted shall be sentenced to a maximum of two years in jail and/or a maximum fine of Rp10 million;
Any person who intentionally accesses, obtains or provides information that could threaten national defense and security or harm national economic resilience shall be sentenced to a maximum of three years in jail and a maximum fine of Rp20 million;
Any person who intentionally produces public information that is untrue or misleading and causes harm to another person shall be sentenced to a maximum of one year in jail and a maximum fine of Rp5 million

Tempo Magazine, No. 32/VIII/8-14 April, 2008

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