BACKGROUND

The right to information is a strategic right because it is an effective tool in enhancing the quality of public participation in the decision making process as well as in public scrutiny (public control) of government. The effective use of the right to information can contribute to the changing of the culture of the bureaucracy - from a secretive regime to a more open and transparent administration. The use of the right to information makes the government more accountable and leads to improvement in good governance. And finally, it supports human rights by reducing corruption and abuse of power.

As a country riddled with corruption (at all levels of its public institutions) as well as human right violations, the right to information is essential to Indonesia. That is why, after Soeharto step down (in 1998), civil society's demands for a more transparent and participative government became increasingly massive, open, and loud.

Actually, Indonesian law recognizes the public right to information at certain levels and in various laws. There are around 17 Laws that have had a legal impact on public access to information possessed by public institutions(3). The second amendment of Undang-Undang Dasar 1945 (Indonesian constitution) also included the right to information: Article 28 F states that "Everybody has the right to communicate and the right to information to develop his/her personal and social environment, and has the right to seek, receive, possess, keep, develop, and give the information by any means."

Unfortunately, these laws do not give strong recognition to wide public access to information. In general, these laws do not explicitly state standards for exemptions to disclosure requirements. Furthermore, they do not provide for the following:

(1) mechanisms for obtaining information,
(2) appeal mechanisms,
(3) independent bodies to review appeals,
(4) sanctions for blocking the right to information, and
(5) other important things that a freedom of information act, theoretically, should regulate.

Above and beyond the culture of the bureaucracy itself, the weak legal framework and the lack of good law enforcement have contributed to the ineffective implementation of public access to information.

Indonesian Non Governmental Organizations (NGOs) have taken note of the importance of public access to information for quite some time. Many movements have been organized to achieve the right to information, together with other strategic human rights. Indonesia's political changes, at least those starting from 1997, have provided an environment that is conducive to the enlargement and the strengthening of these movements. This paper will elaborate the NGOs' movement for public access to information, focusing on the movement to the draft and the principles contained in the freedom of information bill.

NGOs' MOVEIMENT IN GENERAL

In the early 1980's, some NGOs, and especially the pro-democracy movement in Yayasan Lembaga Bantuan Hukum Indonesia (Indonesian Legal Aid Foundation), started to fight for the recognition civil and political rights, including the right of public access to information. For years after that, the movement for public access to information as well as transparency became more active - although there were no NGOs that concentrated specifically on that issue at that time.

Since the political turnover in 1998, symbolized by the removal of the former President Soeharto from power, the movements have become very active. A number of NGOS have been established and have devoted themselves to transparency issues, such as Masyarakat Transparansi Indonesia - Indonesian Transparent Society, ICW - Indonesia Corruption Watch, and Transparency International -Indonesia Office.

Indonesia's NGO movements, in terms of the public access to information and transparency in general, can be classified into three categories: those in the fields of (1) research and advocacy, (2) litigation, and (3) legislation and policy reform.

In the field of research and advocacy, several NGOS, such as YLBHI, ICEL, Aliansi Jornalis Indonesia (Independent Journalist Alliance) and South East Asia Press Alliance (Indonesia Office) have conducted researches on the public access to information, while Urban Poor Consortium (UPC) and Indonesian Corruption Watch (ICW) have played as a watchdog in government activities.

In litigation, Wahana Lingkungan Hidup (Indonesian Forum for Environment) has brought a lawsuit against Freeport Company and the Minister of Mining and Energy for their having provided misleading information to the public.

In policy and legislation reform, several NGOS, such as Yayasan Lembaga Konsumen Indonesia (Indonesian Consumer Foundation) and ICEL, have succeeded in gaining recognition of the right to public access to information in the Consumer Law(4) and the Environmental Law(5). ICEL and Lembaga Kajian dan Advokasi untuk Independensi Peradilan (Indonesian Institute for Independent Judiciary) successfully gained inclusion of a mandate for the enactment of a Freedom of Information Act in the National Development Program Act, which includes the national legislation development program (a five year national development agenda) as a parameter in Political Development. Starting from 1999, ICEL has conducted several activities related to freedom of information, including researching and drafting a Freedom of Information Bill.

The different approaches of the NGOs and the differing subjects on which the various NGOs are concentrating in order to realize transparency have, at the moment, contributed to a more transparent atmosphere, but shifting the old, secretive bureaucratic culture is not an easy thing to do.

DRAFT FREEDOM OF INFORMATION BILL

1. ICEL Activities

Reflecting on its six-years of activities, ICEL believes that the lack of good governance, particularly good environmental governance, has caused a lot of environmental deterioration, which in general has triggered the crisis that we experience today.

Good environmental governance is good governance that has environmental awareness and a sustainable development perspective. There are 6 elements of good governance as promoted by ICEL:

l . Effective representative system;
2. Independence of judiciary;
3. Strong, reliable and responsive bureaucracy;
4. Strong and participatory civil society;
5. Democratic decentralization, and;
6. Effective national and local conflict resolution mechanism.

Aware that environmental protection efforts cannot be effective without the existence of good governance, ICEL is promoting the development of an environmental law as well as being a forefront advocate of the development open government, which includes the right to observe, the right to information, the right to participate, and the right to appeal. Accordingly in 1999, we held a workshop which resulted in recommendations to promote of three legal drafts; (1) Freedom of Information Act (right to information), (2) Aspirative Legislation Making Act (right to participate in and to observe the decision makers’ performance of their public duties), and (3) Whistle Blower Protection Act (right to protection). The right to appeal is an important element, which should be included in all three of these regulations.

Beginning in November 1999, ICEL has conducted research on the three recommended pieces of legislation. In the preliminary research we focused on philosophical background, the Indonesian experience related to the need to have these laws, the extent to which Indonesian legislation has already regulated those rights, and finally, a comparative study with the regulations in other countries. After completing this research, ICEL drafted a Freedom of Information Bill (first draft).

2. NGOs Coalition for Freedom of Information

To strengthen advocacy for the draft of the freedom of information bill as well as to unite NGOs that have already worked on or have the same interest in striving for the right to information, the Indonesian NGOs have collaborated in creating one coalition named "NGOs Coalition for Freedom of Information." Since November 2000, around 18 NGOs (6)from a wide range of interests, such as the environment, anti-corruption, judicial reform, human rights, local autonomy, and journalists, have become members of the coalition. The coalition's activities are: drafting, lobbying (especially to the parliament), and campaigning, as well as mobilizing public support for a freedom of information act.

In creating a second draft of the freedom of information bill (based upon the ICEL draft), the coalition also worked hand in hand with The National Law Commission of The Republic of Indonesia. This commission was established by a Presidential Decree, and has the task of advising the President on legal matters, as well as developing the concept of Indonesian legal reform.

3. The Draft and Progress

There draft embodies several principles:

l. Recognition of the maximum right to information;
2. The public institutions' obligation to document and to provide the information requested through a simple, inexpensive, and immediate procedure;
3. Proactive information disclosure;
4. Limited exemptions that employ a consequential harm test and a public interest balancing test in order to avoid interpretations of the exemptions that favor secrecy;
5. Obligation of public institutions to develop documentation and an information services system;
6. Establishment of an independent body to resolve conflicts in public access to information;
7. Right to appeal, (review and appeal mechanism);
8. Criminal sanctions for those who impede public access to information.

This is not a final draft. We are planning to receive more public and interest group input regarding needs and concerns concerning the Act. At the same time, wide and genuine public participation will minimize conflict and rejection once the Act is enforced.

On February 9, 2001, the coalition, coordinated by ICEL, submitted the draft Freedom of Information Bill to Badan Legislasi DPR RI (legislative body of Indonesian Parliament). The Badan Legislasi then developed the draft, which resulted in the official draft of Badan Legislasi dated 30 March 2001. After the draft is submitted to the head of the DPR RI, there will be formal procedures through a Special Committee in the DPR RI in enacting the Bill.

4. Next Steps

As has been mentioned before, the coalition will carry out several activities, such as drafting, lobbying, campaigning, and mobilizing the public support for freedom of information act. These activities will not stop when the law is enacted. There are several agenda that we have planned to ensure good implementation of the law. Activities that will be conducted after the law is enacted include the following:

1. To continue public education by socializing the legal guarantee of the peoples' right to information and by encouraging the people to use their rights;

2. To develop an information access watchdog; and to continue information requests in order to change the secretive bureaucratic culture.

3. To distinguish between information that can be disclosed and confidential information, as it is impossible to make a clear distinction in a freedom of information law. Here, precedence through case law will play an important role. Therefore the legal suits/appeals concerning this matter should be undertaken by NGOs because NGOs are assumed to represent the public interest.

4. To be involved actively in building a pilot project in public institutions. This is important, since one problem limiting the public access to information is human resources and information technology/infrastructure. The public institutions have to allocate an appropriate budget to create a good information system.

Note

(1) Policy and Legislation staff in Indonesian Center for Environmental Law (ICEL) - Indonesia Drafter of NCOs' draft of Indonesian Freedom of Information Bill and currently serve as Coordinator of NCOs' Coalition for Freedom of Information. Paper prepared for Asia Conference on Freedom of Information and Civil Society, Tokyo, 13-14 April 200 l, Japan.

(2) If we live in an open society, lies win be hard to be hidden. Law enforcement and justice are easier to implemented. Development process win not easily treat unfairly.

(3) Based on ICEL's research on The Urgency of Freedom of Information Act supported by Office of Transitional Initiative, 1999.

(4) Act N0.23/1997 concerning the Environmental Management Act. The provision stated "everyperson have the right to environmental information which related to people' s right to participate (Article 5).

(5) Act No. 8/ 1 999 concerning the Consumer Protection. There re three different provision regulated that: Article 3 ; one of the consumer protection aimed is to develop consumer protection system, which acknowledged certainty of law and public access to information. Article 4; one of the consumer rights is right to accurate, clear and honest information about a good or service contain or warranty. Article 7; one of the bussinesses obligations is give accurate, clear and honest information about condition or warranty of its goods or services as well as the explanation of the use.

(6) The Coalition consist of Journalist Independent Alliance, Rector Forum-Human Resources Development Foundation, Indonesian Conference in Religion and Peace, Indonesian Corruption Watch, Indonesian Center for Environmental Law, Institute in Free Flow of Information, Institute for Media Law and Policy Communication, National Consortium in Legal Reform~ Jakarta Legal Aid Foundation. Indonesian Institute for Independence of Judiciary, Study on Press and Development Foundation, Society Study and Advocacy Foundation, Indonesian Society for Transparency. Center for Legal and Policy Study, Technology Esthetic and Science, South East Asia Press Alliance, Voice Center, Strengthen Initiative, Participative, and Partnership of Indonesian Society Foundation, Pattiro, Indonesian Forum for Environment. The membership is still widely open.

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