publications

III. Legal Framework

Although political space for dissent in Indonesia has increased enormously since the fall of Soeharto, broadly worded laws limiting freedom of expression remain on the books and continue to enable authorities to arbitrarily target individuals. These laws, on their face and in their application, violate the fundamental rights to freedom of expression and association, and lead to arbitrary detention.

Article 28 of Indonesia's 1945 Constitution refers to freedom of expression, but subsequent legislation and regulations have restricted this basic right.21 The result is that, by law, Indonesians can still be imprisoned for “insulting” the president, or expressing “feelings of hatred” against the government, even if such sentiments are offered as part of a peaceful exercise of political dissent.22

In its general comment No. 10, the UN Human rights Committee specifically raised concern about countries which, in their periodic reporting on compliance with the ICCPR, state that their constitutions protect freedom of expression, but make no mention of legal gaps or developments that may actually serve to restrict this right. With regard to country reports the committee stated:

In order to know the precise regime of freedom of expression in law and in practice, the Committee needs in addition pertinent information about the rules which either define the scope of freedom of expression or which set forth certain restrictions, as well as any other conditions which in practice affect the exercise of this right. It is the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual's right.23

Indonesia is an example of a country in which the exceptions—the limitations and restrictions referred to by the committee—still are too often at odds with the underlying freedom of expression principle.

To the extent individuals are arrested and imprisoned for peaceful participation in flag raising ceremonies, such treatment constitutes arbitrary arrest and detention in violation of international human rights law. In 1999 the U.N. Working Group on Arbitrary Detention visited Indonesia, concluding that “the majority of individuals facing charges in connection with the above-mentioned symbolic flag-raising ceremonies were arrested for having mostly peacefully exercised their beliefs, and that their detention [was] arbitrary within the meaning of category II of the Group’s methods of work.”24

For the purposes of this report Human Rights Watch has looked specifically at non-violent activists who have been arrested, detained, and convicted under two sets of articles in the Indonesian Criminal Code (KUHP).25 The first set is the “hate sowing” (Haatzai Artikelen) articles of KUHP. Articles 154, 155, and 156 criminalize "public expression of feelings of hostility, hatred or contempt toward the government” and prohibit "the expression of such feelings or views through the public media." The articles authorize prison terms of up to seven years for violations.

Left over from the Dutch colonial administration, these articles were often used by the Soeharto government to restrict free expression. Political opponents, critics, students, and human rights defenders were targeted and silenced.26 Not only are the articles subject to over-broad interpretation, but their very essence is to limit the right of individuals to free expression. They also violate the spirit of Indonesia's constitution, which had sought to protect this right at the time of independence.

The second set are articles that create the offence of treason or rebellion and are invoked against persons who are alleged to have participated in, or shown support for, the armed separatist group, the OPM (Organisasi Papuan Merdeka, Free Papua Organisation) in Papua. While membership in the OPM itself is not a violation of the law in Indonesia, as the OPM is not an illegal organization,27 alleged supporters are typically charged with the crime of makar (treason or rebellion). The government seems to favor this catch-all offense, which uses extremely broad language and is punishable by up to life imprisonment, rather than to prosecute persons for specific offenses, such as weapons possession, kidnapping, or murder. These provisions are vague and have historically been used to target non-violent political activists across Indonesia.

As the cases below illustrate, in the context of the armed insurgency in Papua the open-ended language of the law has permitted convictions without a real demonstration of wrongdoing. Charges of this kind were also regularly used in Aceh to target alleged members of GAM (Gerakan Aceh Merdeka, Free Aceh Movement) and their supporters. In Papua as in Aceh prior to the peace agreement there, allegations of mere association with the rebel group, whether or not based on credible evidence have resulted in convictions.

The crime of makar is listed in the KUHP under articles in a section entitled “Crimes Against the Security of the State” (Kejahatan Terhadap Keamanan Negara). Articles 106-108 of the KUHP state that:

Article 106

The attempt undertaken with intent to bring the territory of the state wholly or partially under foreign domination or to separate part thereof, shall be punished by life imprisonment or a maximum imprisonment of twenty years.

Article 107

1) The attempt undertaken with the intent to cause a revolution shall be punished by a maximum imprisonment of fifteen years;

2) Leaders and originators of an attempt referred to in the first paragraph shall be punished by life imprisonment or a maximum imprisonment of twenty years.

Article 108

1) Guilty of rebellion and punished by a maximum imprisonment of fifteen years shall be:

§ First, the person who takes up arms against the government;

§ Second, the person who, with the intent to rebel against the government, rises with or joins a band which take up arms against the government,

2) Leaders and originators of a rebellion shall be punished by life imprisonment or a maximum imprisonment of twenty years.28

In its report on its 1999 visit to Indonesia, the UN Working Group on Arbitrary Detention drew particular attention to the provisions related to crimes against the security of the state (Articles 104-129), and called for them to be amended. The Working Group stated that:

Most of these provisions are, especially inasmuch as the intentional element of the crime is concerned, drafted in such general and vague terms that they can be used arbitrarily to restrict the freedoms of opinion, expression, assembly and association. They can be used notably to target the press, peaceful political opposition activities and trade unions, as they were frequently under the former regimes.29

The definition of an act in support of the OPM that constitutes makar is extremely elastic and susceptible to abuse by security officials and prosecutors attempting to prove a crime. Although OPM combatants who have either been captured or have surrendered are among the prisoner population in Papua, the detainee population also includes civilians who have been accused of supporting or sympathizing with the OPM. The definition of support or sympathy is so broad that it may include families of OPM members, as well as individuals who are opposed to Indonesian government policy in Papua, including human rights defenders, non-violent political activists, and students.

In its decisions regarding cases of treason or spreading hatred the courts in Papua have also played a very negative role. In almost every case documented in this report, the courts handed down sentences harsher than those sought by the prosecution notwithstanding that the “offences” of the defendants were acts of legitimate peaceful political expression.

The courts have traditionally been treated with particular distrust by the population of Papua. In his report on his July 2002 visit to Indonesia, the UN Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, noted as much, concluding that the people of Papua “have no confidence in the administration of justice.”30

In the past six years, Indonesia has taken some steps to address the situation, creating in rapid succession a Constitutional Court, a Judiciary Commission, an Ombudsman Commission, a Prosecutorial Commission, a Corruption Eradication Commission, and a Special Court for Corruption. However, the effectiveness of these new bodies is yet to be tested.


 



21 1945 Constitution of the Republic of Indonesia, article 28 ("Freedom of association and assembly, of verbal and written expression and the like, shall be prescribed by law").

22 Human Rights Watch, “A Return to the New Order? Political Prisoners in Megawati’s Indonesia,” New York, Vol 15 No. 4 (C), July 2003.

23 Human Rights Committee, General Comment No. 10, Freedom of Expression Art. 19 (Nineteenth Session, 1983), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\Gen\1\Rev.1 (1994).

24 U.N. Commission on Human Rights, Report of the Working Group on Arbitrary Detention on its visit to Indonesia (January 31 – February 12, 1999), E/CN.4/2000/4/ADD.2, August 12, 1999.  http://daccessdds.un.org/doc/UNDOC/GEN/G99/147/03/PDF/G9914703.pdf?OpenElement (accessed January 2, 2007), para. 65.

25 KUHP (Kitab Undang-Undang Hukum Pidana, Indonesian Criminal Code).

26 Human Rights Watch, “Academic Freedom in Indonesia: Dismantling Soeharto Era Barriers , “New York, 1998; Human Rights Watch and Amnesty International Joint Report, "Release Prisoners of Conscience Now!," June 1998; Human Rights Watch/Asia, "Press Closures in Indonesia One Year Later," Vol. 7, no. 9 (c), July 1995; Asia Watch (now Human Rights Watch/Asia), "Students Jailed for Puns," Vol. 5, no. 5, March 1993; Asia Watch (now Human Rights Watch/Asia), "Anatomy of Press Censorship in Indonesia," Vol. 14, no. 12, April 1992; Asia Watch (now Human Rights Watch/Asia), "Indonesia: Criminal Charges for Political Caricatures," May 13, 1991; Asia Watch (now Human Rights Watch/Asia), "Indonesia's Salman Rushdie," April 10, 1991.

27 The only organization to have been banned in Indonesia is the Indonesian Communist Party, which was banned in 1966 by a decree of the Provisional People’s Consultative Assembly (Decree XXV/MPRS/1966).

28 KUHP, Articles 106-108.

29 U.N. Commission on Human Rights, Report of the Working Group on Arbitrary Detention on its visit to Indonesia (January 31 – February 12, 1999), E/CN.4/2000/4/add.2, August 12, 1999.

30“Report of the Special Rapporteur on the independence of judges and lawyers Dato’ Param Cumaraswamy on his visit to Indonesia (July 15 – July 24, 2002),” E/CN.4/2003/65/Add.2, January 13, 2003.