Evaluation of Upholding the Human Rights in Indonesia*

A Critique to the Indonesian Human Rights Policy and Implementation in Transition Period

A. Preface

The up hold of Human Rights portrait in Indonesia is still colored by red ink of a series of violation acts of Human Rights. The democracy transition in Indonesia is a form of a complicated and fragile process. Even though politics reformation has opened a space for democracy since 1998 but the practice and culture of democracy hasn’t been completely formed, for example; human rights protection hasn’t been up right completely and the public control toward state’s authority hasn’t been guaranteed of its continuation. In other words, even though the citizen rights have begun to be approved, the excessive authority and state’s hegemony haven’t been completely disappears.

After Suharto reign fell in May 1998, Indonesia has come in to the era of people’s rights. It is proven by the politic reformation spirit that needs approval and respect toward human rights as a part of citizen rights. The politics dynamics in Indonesia has created a significant politics changing especially in the matter of protection and respecting toward Human Right.

The roles of international community, Indonesian citizen, NGO’s in helping Indonesian government in promoting and disseminating toward Human Rights are also undeniable. Since The Universal Declaration of Human Rights is adopted in December 10th 1948, the international community, the countries, have declared their willingness to perform their responsibilities to respect, to protect and to fulfill The Human Rights toward their citizens. The changes of government’s attitude and perspective with furtherance of Human Rights development has soon been declared as the part of the international movement in promoting The Human Rights by becoming the part in several Human Rights instruments.

But then, the question is how far does the country give Human Rights security toward the individual interrelated with the ratification process of some Human Rights International instrument? What has The Indonesian Government done in the transition period toward democracy to make Human Rights as the constitutional citizen rights? What are the obstacles that the Indonesian Government facing considering that the violation-by-violation are still happening without any real, fair decision for the victims?

To give comment on The ASEAN Human Rights Scorecard, this paper tries to roll out about the Indonesia development in its effort to develop The Human Rights based on the ratification/accession toward International Human Rights instruments and The Indonesia policy in respecting Human Rights. This paper is focusing on civil and political rights.

B. Government roles in Respecting Human Rights in Indonesia

a. Legal Reform Regarding Human Rights

In the President Habibie period, his government tried to self-imaging itself as a democratic government and up hold high The Human Rights by making ratification on some of The Human Rights instruments, they are Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) which then followed by Law No. 5/1998 concerning the Legalization of Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. However, in those regulations, Indonesia made a reservation toward arrangement of solution among state parties to International Court of Justice, as regulated in section 30 (1) CAT.[1]

Afterward, Indonesia has also made ratification on the International Convention on the Elimination of All Forms of Racial Discriminations 1963 (CERD) which then legalized by issued Law No. 29/1999. Again, Indonesia also made ratification toward section 22 CERD related to the solution arrangement among state parties to International Court of Justice.

How about the other Human Rights instruments? If we go back in time during Suharto and Sukarno period, there were several ratifications of the Human Rights instruments. In Sukarno period, Indonesia has made ratification on the Convention on the Political Rights of Women 1952 which was approved in Law No. 68/1998. The ratification is the reflection of the Indonesian government’s attention in assuring the women rights to use their political right in the 1955 general election.

While in Suharto reign, Indonesia has made ratification on Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) with Constitution No. 7/1984. But, Suharto only legalized the convention in Presidential Decree no. 36/1990 which was supposed to be legalized by the parliament in the form of constitution. It is a real description of Suharto’s absolute power at the time. So what happened next is a chaotic of law considering that the President’s Decree is much lower in power compare to the constitution.

Still related to the reformation of law, Habibie also issued Presidential Decree No. 129/1998 on Human Rights National Action Plan (NAP) 1998-2003 where the government planned to make ratification on one until two Human Rights instruments every year in five years. During 1998-2003, the government only made two ratifications International Human Rights instruments: CAT and CERD. And what unique in the Human Rights NAP 1998-2003 was that the government only made ratification on International Covenant on Economic, Social and Cultural Rights (ICESCR) and didn’t prioritise on making ratification on International Covenant on Civil and Political Rights (ICCPR).

Later on, during President Megawati Soekarnoputri period, there was Human Rights National Action Plan 2004-2009 as it was legalized in Presidential Decree No. 40/2004. It was a “continuation” of National Action Plan 1998-2003. Where actually, Human Right NAP 2004-2009 was not really the continuation of the previous Human Rights NAP but it was no more than a left behind home work especially in the relation of the government’s plan in making ratification/accession toward several International Human Rights instruments.

During 2004-2009 period, the goverment would make ratification toward several unfinished ratification of previous law of International Human Rights Instruments step by step. And in its appendix, Indonesia would make ratification on the International Human Rights instruments, such as: ICESCR, ICCPR, and Rome Statute International Criminal Court 1998 (ICC) in the fifth year.

In order to apply the Human Rights NAP, threfore, The National Commitee was formed. This commitee works under the authority of and is responsible to the President. The duties of the commitee is to establish coordination of the application on the Human Rights NAP activities which includes:

The National is formed Commite to implement Human Rights NAP and responsible to President.[2] The job desk is to coordinate pelaksanaan Human Rights NAP that contain[3]:

  1. To establish and strengthen the Human Rights NAP implementing institutions
  2. To prepare the ratification of International Human Rights instruments.
  3. To prepare the harmonization of relevant legislations.
  4. To disseminate and launch Human Rights education
  5. To apply Human Rights standards and norms; and
  6. To monitor, evaluate and report.

b. Institutional Reformation related to Human Rights.

The government after Suharto reign also made some institutional reformation. Habibie reorganized the National Commission on Human Rights status into Law No. 39/1999 about Human Rights which was previously arranged under Presidential Decree No. 50/1993 about National Commission on Human Rights. The changing status of National Commission on Human Rights did not only make this institution as image of the government’s commitment in respecting the human rights but also shows a human rights friendly political configuration.

In order to give solutions of the past and future abuses of human rights which will be categorized as gross violations of human rights, Indonesia formed a Human Rights Court as it is arranged in regulation of Law no. 26/2000. However the presence of the human rights court is related to the international community pressure in the case of gross violations of human rights post referendum in East Timor in 1999.

The presence of the Human Rights Court surely effects on the National Commission on Human Rights that has the right to inquiry upon assumption of the past & future gross violations of human rights. The National Commission on Human Rights then become the reliable institution for the victims & their families in their effort to claim justice. While the Human Rights Court as the facilitator to present justice to the society who has become the victim of gross violations of human rights.

C. Critics Towards Human Rights Enforcement done by Indonesian Government.

There are two problems related to the application of human rights in Indonesia. First is the procedure of ratification/accession of International human rights instrument. Nowadays, it is not easy make immediate ratification/accsession of human right istruments due to the long process of procedures taken especially the argument in the parliament. The slow rate of discussion in the parliament about a regulation of law to legalize an international instrument is a perception that human rights instruments are not the political priority of the Indonesian political elite in the parliament. Not to mention about the parliament that become suspicious of an instrument which will give disadvantages to Indonesian position.

That is why nowadays, Indonesia prefer using adoption procedure to making ratification. It is reflected in the 1945 Constitution Amendment especially those are related to the human rights are put into separate chapter. Some of those chapters adopted the basic International Human Rights Law instrument such as: Universal Declaration of Human Rights, ICCPR and ICESCR.

But, the amendment was missintrepreted by the lawyers of Timor-timur human rights violators by using article 28 I verses(1) Indonesian Second Amendment Constitution 1945[4] to defend their clients in the non-retroactivity issue. UN has arranged far in advance a convention called UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity in 1968. Knowing this matter, on August 24, 2000, the UN secretary spoke person, Fred Eckhart stated: “…a recent amandement to Indonesian Constitution might force the UN to hold an international inquiry into human rights abuses in East Timor “.[5]

Second is the implementation on national law and the difficult process of harmonization and also the revision toward regulation of law which is still valid until now. Especially on the last item, the government’s effort to maintain the old regulation of law and at the same time issued the new regulation of law but it was contradictive to the government’s obligation in protecting the human rights.

Guarantee toward citizen’s constitutional rights as given by the constitution is not followed mutatis mutandis by the reformation of the lower power regulation of law. It is proven by the validity of death sentences practices in Indonesia that disregards the approval of the right to live as the part of non-derogable rights which has become citizen constitution rights. In the last five years, the use of death sentences has gone through a significant development that is not only arranged in the Indonesian Penal Code but also spread out in many other regulations of laws.

Several new regulation of law already contain of death penalty as the maximum punishment, such as Law no. 26/2000 concerning human rights court. The actions against the law are still done by the lawmaker by keep on making and suggesting about regulation of law containing death penalty.

The Data of Executed & Unexecuted Death Penalty Convicts done by the Indonesian Government in 2004

No Cases Year ofincident Name/ age/ gender/ Citizenship Location/ Court’s authority State court year of verdict Year of execution Information source Others
1 Narcotics 2004 Marco Archer Cardos Mpreira (42)/Brazil Tangerang District Court 8 June 2004 Tempo
2 Planned murder and escaping from prison 2004 Gunawan Santosa/L/Indonesian North Jakarta District Court 24 June 2004 Tempo Interaktif, 24/6/04 Appeal to the High Court
3 Narcotics 14 January 2004 Emmanuel O Ejerika, 31 t/Afrika Bali High CourtBali Thu, 21 October 2004 Tempo interaktif, Thu, 21 October 2004
4 Narcotics Tangerang District Court 22 September 2004 Tempo interaktif, Thu, 23 September 2004
5 Narcotics Namsong Sirilak (34) Executed
7 Narcotics 21 February1994 Ayodya Prasad Caube/India/54 / P Medan District Court 08 September 1994 05 August 2004 in Medan Banjarmasin Post Clemencywas denied by President Megawati
6 Narcotics Saelow Praseart (58), 5 April 1942 Executed

Source: IMPARSIAL Documentation

Implementation on international human rights instruments through ratification as a form of Indonesian bonding toward international law doesn’t hamper the government authority especially the law enforcer to treat the criminal suspects with torture and abuse. But it is ironic to the facts that the brutal actions of the law enforcers don’t receive proper and fair sanktion to the victims and their families.

The Victims of Human Rights Violations toward Civilian in Aceh on.
First Civil Emergency (19 May – 18 Nov 2004)

Month Murder Torture Arbitrary Arrest/Detention EnforcedDisappearance Total
May 4 4 5 9 22
June 15 123 0 1 139
July 7 7 0 5 19
August 26 40 9 3 78
September 22 11 1 8 42
October 6 9 0 10 25
November 4 4 0 11 19
Total 84 198 15 47 344

Source: IMPARSIAL Documentation

Data above shows how significant is the international human rights law violation especially CAT which has become the part of national law of Indonesia. As it is understood that indonesia has given civil emergency status to Aceh province for almost two years-since May 2003. Entering the new era of Indonesian government on November 19, 2004, President Susilo Bambang Yudhoyono once again prolong the civil emergency status in aceh for another 6 months through Presidential Regulation No.2/2004. In the article 3 of presidential regulation, it is stated firmly that the government will evaluate the civil emergency in Aceh every month.

The policy to prolong the civil emergency in Aceh has made the area in a emergency condition permanently. Until now, the government still has no measurement related to the expiration of the civil emergency in Aceh. The government only uses considerations from the officers of TNI/POLRI in Aceh who will propose to prolong the civil emergency in Aceh everytime it is about to be expire.

The efforts in judging the gross human rights violators after the popular discussion in Timor Timur and the Tanjung Priok case was ended by releasing almost all of the main suspects which come from Military/Police. Human Rights Court failed to give hope on the justice enforcement especially to the victims’ families. This situation has been predicted far in advance regarding the regulation of law does not adopt standard provided by international law and the court did not go fair, independent and impartial.

The Law No.26/2000 concerning Human Rights Court is the reaction toward international community effort who planned to form a International Criminal Tribunal for East Timor. Before the regulation of law was issued, the government had previously issued Government of Lieu of Law No.1/1999 about human rights court which then was disapproved by the house of representative.

Basically, this regulation of law is trying to adopt Rome Statute International Criminal Court 1998. But unfotunately the adoption process was done in a manipulative way by the lawmaker which caused peception disagreement about the main goal everyone wanted to reach.[6] The other matter is that this regulation of law only approves two crimes that are considered as gross violations of human right that is genocide and crime against humanity.[7]

The year of 2004 was the year of freedom and liberty for human rights perpetrators. But incontradictary to the victims and their families. The year 2004 was the year of defeat for the second times for the victims and their families. The Human Right Court was hoped to give the fairest verdict for the victims and their families but wiped out those dreams instead. It can be seen from the journey notes of Human Rights Ad-hoc Tribunal on Tanjung Priok Case oganized and run since September 2003.

The wave of “freedom” also happened during Human Rights Ad-hoc Tribunal on the Gross Violations on Human Rights in Timor Timur where all of the suspects were freed by the court both level one and supreme court. All of the perpetrators freed were middle and high rank officers of TNI/POLRI.

After the failures of the human rights court to present justice to the victims and their families, the effort to form the moral society that is able to give denial toward human rights violations was cramp by the legalization of Draft Bill of Truth and Reconciliation. During its draft form, there were already so many critics presented because this reconciliation was the facility for forgiveness for past human rights perpetrators who have military background.

D. Obstacles in Enforcing Human Rights in Indonesia.

The obstacle in the application of human rights in Indonesia is the unfinished reformation on the influencing security actors who still have influence in the internal politics of Indonesia. The reformation toward security actors is the reformation of TNI & POLRI. So far, the reformation done is still not maximum which caused them to repeat the human rights violation again.

Until now, reformation on TNI has not finished yet. In the law enforcement area toward human rights violation, TNI always uses Military Court to protect their corps. Therefore, the presence of Military Court becomes the part of impurity which made them untouchable by law. While the reformation on Police corps is focused on government’s effort of protecting citizen’s rights from other parties’ abuse. Many times the police corps themselves misused their authority for excessive power abuse which then resulted on police brutality.

Another big influence related to the implementation is the trend to fight terrorism. The ignorance of the respect toward human rights and the fundamentals freedoms starting to feel strong when the government put forward the safety policy in order to participate in the global war against terrorism. Especially after the Kuta, Bali bombing on October 12, 2002. This tendency does not only happen in Indonesia but also in other industrial and developing countries.[8]

The government of President Megawati Soekarnoputri, in rushed, issued Government Regulation in Lieu of Law No. 1/2002 on the Eradication of Criminal Acts of Terrorism. And Government Regulation in Lieu of Law No 2/2002 on the Eradication of Criminal Acts of Terrorism in Relation to the Bomb Explosion Incident in Bali, 12 October 2002.[9]

This Government Regulation in Lieu of Law was legalized by People Representative Assembly on March 6, 2003 to be Law no.15/2003 about eradication of terrorism activities. Before that, together with the Government Regulation in Lieu of Law being issued, President Megawati also issued Presidential Instruction No. 15/2002 which approved the head of National Intelligence Body as the coordinator of all intelligence activities in Indonesia. This presidential instruction was used by National Intelligence Body (BIN) to present Draft Bill of State Intelligent and Draft Bill of Secrecy Law.

The safety of civil liberties will be endangered together with the entrance of non-judicial into the law system. Non-judicial Intelligence involvement will endanger the political civil rights which is included in the area of non-derogable rights, especially the rights to be treated equally before the law.

E. The Ideal Things that should be done: Legal Reform and Security Sector Reform

From the explanation above, the real intension to respect the human rights has to be followed by government’s political will. To respect human rights, it is not enough by only making ratifications on international human rights instruments but it has to be followed by reforming the Indonesian national laws as a legal basis of implementation. Since the freedom of Indonesia in 1945, the civilization built upon the law inherited from the Dutch colonialism has not given any significant improvement compared to the mother who is one fifth away of the earth circle. The law created by accommodating the human rights violation done by the state is the result of undemocratic political configuration.

The aim of the legal reform is the correction upon the law system itself and the regulation of law. The future Indonesian law reformation is to build a responsive civilized law which does not only reflect the justice feeling but also guarantees the human rights. On the other hand, it is necessary to reach harmony between national law and the universal international human rights instruments of law.

Legal reform also must be followed by security sector reforms which are TNI/Polri. In the other words, it is important to have guarantee for them for using violation as security actor only for rights protection and punish them if they abuse. With the reformation on security sector reform in Indonesia will be pushing to cut off the cycle of impunity which is until today is being enjoyed by the perpetrator.

Another important thing is the obligation to respect human rights is not only as a burdened by the government but also everyone’s. ASEAN Human Rights Scorecard is the effort of the civil community in respecting the human rights.

In harmony with the UN Declaration on Human Rights Defender which firmly stated the nation, groups and individuals position, together they must have the rights to get protection in respecting human rights, both internationally and nationally. In the history of international law, it is the first time an international law has given right and responsibility not only to the country in general but also to individuals as the subjects of international law.

I agree that international law is the product of international level politics which is related to the influences of industrial countries. However, it is not an excuse that in the case of human rights violation, a country uses international law partially to protect itself and ignores the other international law family root such as International Human Rights Law and International Humanitarian Law. ***

Appendix

PREPARATION ON RATIFICATION OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Objectives/Targets Programs/Activities Schedules Executors Performance Indicators (output)
Ratification of international human rights instruments to promote human rights in Indonesia. Preparation on ratification of international human rights instruments with scale of priority, as follows: Ministry of Foreign Affairs and related institutions. The drafting of bill on the ratification of international human rights instruments.
1. International Covenant on Economic, Social and Cultural Rights. 2004
2. The International Covenant on Civil and Political Rights. 2004
3. Convention for the Suppression of Trafficking in Persons. 2004
Objectives/Targets Programs/Activities Schedules Executors Performance Indicators (output)
4. Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 2005
5. Optional Protocol to the Convention on the Rights of the Children on the Sale of Children, Child Pornography and Child Prostitution. 2005
6Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 2005
Objectives/Targets Programs/Activities Schedules Executors Performance Indicators (output)
7. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts. 2006
8. Convention on the Prevention and Punishment of the Crime of Genocide. 2007
9. Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 2008
10. Rome Statute on the International Criminal Court. 2008
Objectives/Targets Programs/Activities Schedules Executors Performance Indicators (output)
11. Convention on the Status of Refugees. 2009
12. Protocol to the Convention on the Status of Refugees. 2009
Academic manuscripts for the international human rights instruments on which are given priority in ratification. To undertake studies and researches on international human rights instruments to be ratified in accordance to the priorities. 2004-2009 Ministry of Justice and Human Rights, Ministry of Foreign Affairs and related institutions.
Objectives/Targets Programs/Activities Schedules Executors Performance Indicators (output)
To prepare academic manuscripts on the background of covenants or conventions to be ratified. 2004-2009 Ministry of Justice and Human Rights, Ministry of Foreign Affairs and related institutions.
Socialization on the international human rights instruments to be ratified. To translate the international human rights instruments to be ratified. 2004-2009 Ministry of Foreign Affairs and related institutions. The availability of the translation of the international human rights instruments.
To conduct socialization on the international instruments to be ratified. 2004-2009 Ministry of Foreign Affairs and related institutions. Implementing the socialization for all community groups.

Source: Presidential Decree No. 40/2004 concerning Human Rights NAP 2004-2009 Appendix I.

*) Paper presented at the ASEAN People’s Assembly, orginized by the ASEAN-ISIS and ISDS Philipines, Edsa Shangri-La Hotel, Manila, May 11-13, 2005. I would like to thank to Al Araf, Researcher at IMPARSIAL for his assistance with this paper.

References and Footnotes

  1. In Soeharto reign, there have been some thoughts to do ratification toward CAT especially through the effort of Indonesian Human Rights Defender to make some changes toward the Indonesian Penal Procedure which was disapproved by the government.
  2. Article 1 Presidential Decree No. 40/2004 concerning Human Right NAP 2004-2009
  3. Article 2 Presidential Decree No. 40/2004 concerning Human Right NAP 2004-2009
  4. Article 28 I verses (1) The rights to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human rights that shall not be curtailed under any circumstance.
  5. Bhatara Ibnu Reza, “Once again, Human Right is Universal !! Perspective toward the application of respecting and enforcement of human rights in Indonesia: Responses toward 1945 Constitution amendment article 28 I and the relation to the International Relations”, (this paper is presented during the lesson of Capita Selecta of International Relations, Graduate Program of Faculty of Politics & Social Sciences, University of Indonesia Specialization in International Relations, Jakarta , August 2000), page 2-3.
  6. One of the example is the intrepretation of the criminal activity upon human rights wher in the Article 7 Law No. 26 / 2000 is stated,”... attack directed to any civilian population...<”. Compare it to the Article 7 Rome Statute,”...attack directed against any civilian population...”. The misinterpretation will cause only the field accomplisher to be caught by the law and not the brain of the policy maker.
  7. Article 7 regulation of law No. 26 / 2000 compared to article 5 Rome Statute that includes war crimes and agression crime. For crime of aggression it has not been defined by Rome Statute.
  8. Amnesty International has researched the globalisation of state repression after the September 11 attacks and threats to civil liberties and the judicial process. See: Amnesty International,”Charting the War on Terrorim”,www.amnestyusa.org/amnestynow/war_terrorism.html
  9. This Government Regulation in Lieu of Law has passed by People of Representative Assembly to be Law No. 16/2003 but after the Constitutional Court challenge it with the Constitution, they invalidaded it on July 23, 2004.
Researcher at IMPARSIAL, The Indonesian Human Rights Monitor.