INDONESIA: Ratification of key human rights instruments must be followed by legal reform
The Indonesian government's commitment to ratify two key human rights instruments, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in May 2006, is a welcome step. The ratification of these two covenants, which are central to the international bill on human rights, is a good opportunity for Indonesia to improve its dismal human rights track record. This cannot be done by ratification alone however; it must be followed by implementation.
The effective implementation of these two covenants requires two particular elements. One is domestic legislation corresponding to the international provisions, and the second is functioning institutions to monitor the enforcement of this legislation. Indonesia at present has neither of these elements. Many years of authoritarian rule and political suppression under the Suharto regime have resulted in a repressive legal system and the degeneration of justice institutions, particularly the police, prosecution and judiciary.
Indonesia's penal code (KUHP)--which is the cornerstone of any legal system--dates back to 1918, the time of Dutch colonial rule. It contains many harsh and regressive articles, detrimental to many of the rights enshrined in both the ICCPR and ICESCR. The provisions for the death penalty are particularly harsh, as noted in articles 10, 104, 111, 124 (3) and 30. The penal code also limits freedom of expression by stating that individuals can be imprisoned for 'insulting' the president (articles 134 and 137) or expressing 'feelings of hatred' against the government (article 154), even if these are offered as a peaceful exercise of political dissent. Freedom of expression is further limited by criminal defamation provisions under article 310. While the penal code is severely repressive on certain issues, it does not consider serious abuses such as torture and disappearances to be crimes. The act of torture is not defined and there are no specific provisions for the prosecution of perpetrators or the compensation of victims. For this reason, torture is at present treated in the same way as ordinary maltreatment between civilians.
The criminal procedure code of 1981 (KUHAP), similarly contains harsh provisions, including the prolonged detention of suspects, as under articles 24-29. Other harsh laws include those on discrimination, which is legitimised on numerous grounds within the Indonesian legal system, most notably on grounds of political affiliation. The People's Assembly Decree (TAP MPRS) No XXV of 1966, while declaring the prohibition of the communist party and related activities, is commonly interpreted to include a ban on all individuals with links to persons in any way previously affiliated with communism. Similarly, numerous laws and regulations discriminate against those having 'direct or indirect involvement' with the communist party such as article 7 of Law No 14 of 1985, article 13 (1) (d) of Law No 7 of 1989 and article 23 (5) (b) of Law No 43 of 1999. Discrimination and violence against ethnic or religious minorities is also rife throughout the country. Many past violations of human rights, including the massacre of nearly one million civilians alleged to be communists during 1965-66 and the indiscriminate killings of ethnic Chinese during the May 1998 riots have yet to be addressed, due largely to Indonesia's ineffective legal system as well as the absence of political will.
Indonesia's justice institutions--the police, prosecution and judiciary--are all in a state of collapse, incapable of upholding the law and protecting citizens' rights. Torture and custodial abuse is common practice within any Indonesian police station, while in areas of armed conflict, such as Poso and Aceh, the military continue to commit gross human rights violations with impunity. The attorney general of Indonesia continues to be politically motivated and rarely institutes legal proceedings against perpetrators of crimes and human rights abuse. A key problem within Indonesia's judiciary is corruption, which allows for the acquittal of perpetrators of crimes.
Under these circumstances, Indonesia has much work to do before its citizens' rights under the ICCPR and ICESCR can be realised. Its laws need to conform to the principles of non-discrimination, the right to life, the right to due process. Most importantly, comprehensive legislation condemning torture as a serious crime must be introduced. Other legislation and regulations regarding economic, social and cultural rights also need to be put in place by the government, in particular with regard to education and healthcare.
In reforming its justice institutions, all elements of corruption must be eliminated and all officers must be held accountable for their actions. In particular, all three institutions must have the highest respect for the supremacy of the law and equality before the law. Until this is done, Indonesia's obligations under the common article 2 of both the ICCPR and the ICESCR will not be fulfilled.
In order for these changes to come about, the participation of civil society is essential. To this effect, the Asian Human Rights Commission (AHRC) urges the Indonesian government to safeguard the freedom of assembly, expression and opinion of all persons. The government must take all necessary steps to ensure that persons are not threatened for expressing their concerns, as in the case of murdered human rights defender Munir Said Thalib. The AHRC also urges all rights groups and other concerned individuals in Indonesia to begin a debate on legal and institutional reform towards effecting the rights enshrined in the ICCPR and ICESCR.