Observatory for the Protection of Human Rights Defenders Annual Report 2009 - Indonesia

Political context

The death of former President Suharto on January 27, 2008 might have signalled the end of an era, but many saw his death as the final nail in the coffin for justice to be achieved for the atrocities committed by him and his political allies. Impunity continued to prevail for violations carried out under his watch, as well as to dominate the current human rights situation in Indonesia. In particular, after much delay, on July 15, 2008, the Commission of Truth and Friendship delivered its final report to the Government. It concluded that the Indonesian military bore institutional responsibility for widespread and systematic gross violations of human rights committed in East Timor in August 1999. Whilst these findings exceeded the expectations of many, the Commission was unable to assign individual responsibility, recommend prosecution or order reparations.

Indonesia's human rights record came under international scrutiny in 2008. Reports were submitted to the UN Human Rights Council by the UN Special Representative of the Secretary-General on the situation of Human Right Defenders and the UN Special Rapporteur on Torture in January and March 2008 respectively, following visits to Indonesia in 2007. Indonesia was also considered by the UN Committee Against Torture (CAT) in May 2008 and by the UN Human Rights Council under the Universal Periodic Review process in June 2008. Key concerns raised by all these mechanisms were the persistence and widespread use of torture, the lack of a definition and criminalisation of torture in penal legislation and impunity for human rights violations.¹

Violence against minority groups, in particular the Ahmadiyah and other minority religious communities continued in 2008. On April 16, 2008, the Coordinating Board for Monitoring Mystical Beliefs in Society (Bakor Pakem) published its recommendation that the Government should ban the Ahmadiyah by issuing a decree on the basis that it is a deviant sect. This incited violent attacks by other religious groups against Ahmadiyah communities and, despite requests from Ahmadiyah representatives and their lawyers, the police and authorities failed to provide any protection for these religious groups. The Committee Against Torture also noted "persistent, disturbing allegations of a routine failure to investigate such violence".² In the end, the Government did not issue a regulation disbanding the Ahmadiyah, but the Religious Minister, the Home Affairs Minister and the Attorney General issued a joint ministerial decree on June 9, 2008, which banned the dissemination of Ahmadiyah teachings in Indonesia. In this context of increased religious tensions, 2008 saw the emergence of a new trend of fundamental religious groups attacking those who advocate religious tolerance and pluralism. Defenders of women's human rights were particularly vulnerable to violence by Islamic fundamentalists.

In 2008, human rights defenders continued to be under threat, in particular through criminalisation of their activities, stigmatisation as separatists (particularly in the conflict areas of Aceh and Papua) or communists, intimidation and restrictions on freedoms of expression and assembly. In addition, impunity remained the rule for violations against defenders, as illustrated by the emblematic case of Mr. Munir Said Thalib, co-founder of the Commission for Disappearances and Victims of Violence (Kontra S) who was killed in 2004, and which was seen as an attempt to intimidate and threaten all human rights defenders.³

Some positive steps, but still legislative shortcomings in the promotion of human rights

The then Special Representative on the Situation of Human Rights Defenders, Ms. Hina Jilani, noted a number of positive steps that had been taken to strengthen the legal and institutional framework for the promotion of human rights,⁴ but identified a number of shortcomings, in particular the absence of "concrete measures dealing directly with the protection of human rights defenders".⁵ She recommended that legislation and procedures be established to prevent the prosecution of human rights defenders when carrying out legitimate activities. However, there was little progress in 2008 in this regard; a bill providing legislative protection for human rights defenders was still in the course of being drafted with no clear date for its finalisation, having still not been debated by Parliament by the end of 2008. The establishment in 2008 of a Victims and Witness Protection Agency (LPSK) under the Witness Protection Act 2006 may offer some hope of better protection for human rights defenders, but it was still not operational at the end of 2008.⁶

Furthermore, in August 2008, the Ministry of Home Affairs approved a decree requiring State approval of foreign funding of Indonesian organisations after minimal public consultation (Permendagri⁷ no. 38/2008), and which was only widely disseminated in December. Although the Ministry of Home Affairs said the Government's intention was to clarify the Law no. 8 of 1985 that provides for the suspension of organisations that have received foreign funding without Government permission, the new regulation might be used to impede freedom of association in Indonesia, in particular through restricting foreign funding of NGOs wanting to monitor the 2009 legislative and presidential elections. Indeed, it requires NGOs to register with the Government, seek Interior Ministry approval for foreign funding, pay tax on the funds and publicise foreign-funded activities through the media. Foreign donors are also required to register with the Government so that the latter can "make sure foreigners are not seeking to undermine national security or development". Besides, the Bank of Indonesia also issued in December 2008 a policy that request all banks in Indonesia to ask their customers about the usage of money received abroad. As of the end of 2008, both the Ministries of Home Affairs and of Justice were also drafting new laws on the treatment of civil society organisations, including NGOs.⁸

Repression of human rights defenders in conflict areas of Aceh and Papua

Repression of human rights defenders in Aceh and Papua continued in 2008, frequently taking the form of intimidation, stigmatisation as separatists, criminalisation of activities – predominantly through charges of sedition – and attacks on freedom of expression and assembly. Indeed, whilst there were some improvements in the post-conflict area of Aceh, human rights defenders continued to be the target of military, police and intelligence operations. Any seminar or workshop held by Acehnese human rights organisations was investigated by intelligence officers. This included seminars/workshops held by Kontras Aceh, LBH Banda Aceh, Aceh Judicial Monitoring Institute (AJMI) and Koalisi NGO HAM.⁹ The Special Representative on Human Rights Defenders, Ms. Hina Jilani, expressed concerns regarding this following her visit to Indonesia in June 2007, stating that whilst she welcomed some improvements, "concerns remain with regard to surveillance activities by law enforcement authorities, stigmatisation of defenders, restrictions that affect the work of women human rights defenders, and the score of unresolved cases".¹⁰

Land rights activists, particularly , came under attack in Aceh for speaking out against violations. On August 14, 2008, eight lawyers and human rights activists of the Legal Aid Foundation Banda Aceh (LBH Banda Aceh), Messrs. Kamaruddin, Muksalmina, Yulisa Fitri, Sugiono, Mustiqal Syahputra, Muhammad Jully Fuadi, Mardiati and Juanda, were charged and convicted of "disseminating hate against the Government" and "incitement of violence against public officials". They were sentenced to three months' imprisonment, with six months' probation. The activists had been distributing leaflets about the land rights of more than 1,000 people affected by evictions from a palm oil plantation owned by the Bumi Flora Corporation in East Aceh.¹¹

In West Papua, intimidation and harassment of human rights defenders through surveillance was also used by the authorities and the lack of accountability for State violence in this province continued to obstruct the resolution of the conflict, with increased military presence adversely affecting the capacity of human rights defenders to carry out their work. Additionally, human rights defenders in West Papua continued to be the victims of systematic intimidation following the visit in June 2007 by the Special Representative.¹² In particular, those expressing their views or exposing violations came under attack. For example, Mr. Iwanggin Sabar Olif, a West Papua human rights lawyer and a member of the Institute for Human Rights Study and Advocacy (ELSHAM), was arrested on October 18, 2007 by anti-terrorist officers and subsequently charged under Article 160 of Indonesia's Criminal Code¹³ for inciting "in public to commit a punishable act, a violent action against the public authority or any other disobedience", for allegedly sending an SMS message critical of President Susilo Bambang Yudhoyono.¹⁴ Released in January 2008, his subsequent trial took over 15 months, which prevented him from carrying out his legitimate work as a human rights defender in Papua. On January 29, 2009, the Jayapura District Court finally cleared Mr. Iwanggin Sabar Olif of all charges brought against him.¹⁵ On July 20, 2008, a book entitled The Genocide of Ethnic Melanesia: Breaking the silent history of violence in Papua by Rev. Socratez Sofyan Yoman was banned by the Attorney General,¹⁶ thus reinforcing the general climate of fear.

Repression of the media and freedom of expression

Restrictions on freedom of expression were not confined to conflict areas. In 2008, journalists were frequently prosecuted by the Government and by the community for exercising their right to freedom of expression. Rather than using the Press Law of 1999 to resolve disputes relating to press reports, the Criminal Code, which was inherited from Dutch colonialists, was used to criminalise the press. The charges generally brought against journalists related to "defamation" and "crimes against dignity". For example, in September 2008, the news magazine Tempo was ordered to pay a fine of Rp. 50 million (about 3,280 Euros) under the Criminal Code and to apologise publicly for its investigation into and report on corruption and tax evasion by palm oil product, Asian Agri.¹⁷

Freedom of expression was further curtailed in 2008 with the adoption of the Law on Electronic Information and Transactions (ITE). The Law contains provisions that sanction defamation with longer terms of imprisonment and higher fines than those stipulated in the Criminal Code, and media groups expressed concern that this could silence the press. In September 2008, legislator Mr. Alvin Lie initiated defamation proceedings against Mr. Narliswandi Piliang, blogger and journalist for Tempo. Mr. Piliang had written an article alleging that a coal mining company, PT Adaro Energy, had bribed the National Mandate Party through Mr. Lie to influence an investigation by the House of Representatives into the company's initial public offering of shares. If convicted, the journalist faces up to six years' imprisonment and a fine of Rp. 1 billion.¹⁸

1 See UN Document A/HRC/7/28/Add.2, Report of the Special Representative of the Secretary-General on the situation of human rights defenders – Mission to Indonesia, January 28, 2008; UN Document A/HRC/7/3/Add.7, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment – Mission to Indonesia, March 10, 2008; UN Document CAT/C/ IDN/CO/2, Concluding Observations of the Committee Against Torture on Indonesia, July 2, 2008; and UN Document A/HRC/8/23, Report of the Working Group on the Universal Periodic Review: Indonesia, May 14, 2008.

2 See UN Document CAT/C/IDN/CO/2,/ Concluding Observations of the Committee Against Torture on Indonesia/, July 2, 2008.

3 Although former Deputy Chief of Indonesia's National Intelligence Agency (BIN) Mr. Muchdi Purwopranjono was prosecuted for "premeditated murder", which was seen as a breakthrough in the fight against impunity, given that it was the first time a member of the BIN had been arrested for a criminal offence and was the first acknowledgement that State authorities may have been involved in Mr. Munir Said Thalib's assassination, on December 31, 2008, the South Jakarta District Court decided to acquit Mr. Muchdi for want of evidence.

4 The legal and institutional framework for the promotion and protection of human rights was strengthened following constitutional changes in 2002, the adoption of the Human Rights Act in 1999 and of the Witness Protection Act in 2006, and ratification, in 2006, of the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. Similarly, the establishment of ad hoc human rights tribunals, of the National Human Rights Commission (Komnas HAM) and of the National Commission on Violence Against Women (Komnas Perempuan) has been an important development in terms of protection and promotion of human rights, providing a framework in which defenders may carry out their activities.

5 See UN Document A/HRC/7/28/Add.2, Report of the Special Representative of the Secretary-General on the situation of human rights defenders – Mission to Indonesia, January 28, 2008.

6 The LPSK was inaugurated on July 15, 2008 but remains un-operational due to budget issues.

7 A regulation of the Ministry of Home Affairs.

8 See Imparsial.

9 Idem.

10 See UN Document A/HRC/7/28/Add.2, Report of the Special Representative of the Secretary-General on the situation of human rights defenders – Mission to Indonesia, January 28, 2008.

11 See Tapol and Imparsial.

12 See UN Document A/HRC/7/28/Add.2, Report of the Special Representative of the Secretary-General on the situation of human rights defenders – Mission to Indonesia, January 28, 2008.

13 This article, which carries a maximum sentence of six years' imprisonment, has been used in the past against human rights defenders in Indonesia, including in Aceh, Java, East Kalimantan and Maluku, to suppress freedoms of expression and assembly.

14 This message reportedly asked people to be careful because President Susilo Bambang Yudhoyono had ordered a deadly program together with the army aimed at "eradicating" the Papuan population through food poisoning and other violent actions. This text message would have been in circulation since July 2007, and thousands of Papuans would have already received it. Mr. Iwanggin Sabar Olif always denied having written or sent this message, or even having received it. During police interrogation, Mr. Iwanggin Sabar Olif did not have access to a lawyer. He would also have been intimidated by the police to confess he was the original sender of the text message.

15 See Tapol.

16 See Imparsial.

17 Indonesia's Judicial Review Commission was to investigate this district court decision.

18 See FORUM-ASIA, Fortnightly E-newsletter, September 22, 2008.