Rights Commission and its constraints<\/p>\n
By Hendardi<\/p>\n
JAKARTA (JP): Last year, the National Commission on Human
\nRights, known by the Indonesian acronym of Komnas HAM, was
\nestablished by Presidential Decree No. 50\/1993. Its members were
\nappointed through Presidential Decree No. 455\/1993. After its
\nestablishment under the leadership of former Chairman of the
\nSupreme Court Ali Said, the Commission began visiting victims of
\ncases of human rights violations, listening to their complaints
\nand handling their cases for them.<\/p>\n
Many of the Commission's members have a background in law.
\nSome are still active as professors at various state
\nuniversities. The Commission occupies a temporary office in the
\noffice compound of the Directorate General of Correctional
\nInstitutions (Ditjen. Permasyarakatan) and it has been reported
\nthat the commission receives a donation of Rp 1.5 billion per
\nyear from the State Secretariat.<\/p>\n
There are a number of points that call for our special
\nattention in relation to the presence of a National Commission on
\nHuman Rights in Indonesia. Firstly, the Commission has been
\nactively studying cases of law infringements, visiting those
\nserving time in jail, as well as handling and solving various
\ncases that have occurred in the community. Secondly, It is inter
\nesting to note how the Commission has viewed the human rights
\nrelated problems or pushed for the inclusion of rights in the
\nlaw. Thirdly, all of the Commission's activities should also be
\nexamined vis-a-vis their political constraints.<\/p>\n
The National Commission on Human Rights has been actively
\ndoing its job. We could even say that it has been playing the
\n\"fetching-the-ball\" game, that is, it does not passively wait for
\ncomplaints to be filed by the public. This practice is such a
\npositive one that it should be maintained.<\/p>\n
The Commission's first major activity was to visit 11 student
\ndemonstrators who were at that time being held in the Central
\nJakarta police precinct headquarters. The visit took place on
\nJanuary 4, 1994. These students were detained because of their
\nparticipation in a protest rally staged at the House of
\nRepresentatives on December 14, last year. They were demanding
\nthat a special session of the People's Consultative Assembly,
\nCouncil, or MPR, be held.<\/p>\n
Members of Komnas HAM conversed with the students in the
\npresence of police officers. They had come to find out whether
\nthe process of law had been duly followed and whether the
\nstudents had been subjected to torture. It was reported that the
\nshaving of their hair was considered a voluntary act.<\/p>\n
The next major activity involved the land dispute in Ranca
\nmaya, Bogor. Komnas HAM gathered the 387 farmers who were
\nembroiled in a land dispute with PT Suryamas. The latter was
\nconsidered by the Bogor Regency authorities as the legal owners
\nof the land. The Commission solved the problem by asking the
\ncompany to pay compensation for the plants growing on the
\ndisputed land. A cassava tree was valued at Rp 70,000 a piece,
\nand a papaya tree Rp 100,000. There was no compensation for the
\nland, although there were claims that the certificate held by the
\ncompany was not legal.<\/p>\n
The land dispute in Sei Lepan between settlers and PT Anugerah
\nLangkat Makmur also attracted the Commission's attention. The
\nsettlers' land had been reduced by as many as 1,200 hectares. The
\ncommission intervened and solved the problem. The settlers were
\nrelocated from Sei Lepan to West Pangkalan Brandan.<\/p>\n
The Marsinah case was also on the agenda of the Commission. It
\nwas prompted by the appeal made by lawyer Trimoelja D. Soerjadi,
\nwho was a defense lawyer for the chief of PT CPS, Surabaya and
\nPorong. This lawyer reportedly claimed that his client had been
\nsubjected to lockup and torture by officers of the intelligence
\nsection of the Brawijaya Military District Command (KODAM).<\/p>\n
While the Indonesian Legal Aid Institute, YLBHI, supplied the
\nresults of its own investigations to the case as input to Komnas
\nHAM in its attempt to uncover the motives of the murder, the
\nCommission conducted its own independent investigation.<\/p>\n
The setting up of Komnas HAM means that YLBHI and a number of
\nNGOs as well as student committees dealing with the human rights
\nissue have one more partner in handling cases of human rights
\nviolations in Indonesia.<\/p>\n
In its subsequent development, Komnas HAM seems to have been
\nable to handle a number of cases successfully. This has definite
\nly increased the public's confidence in the Commission's perform
\nance. Another consequence is that there will be increasing expec
\ntations and more complaints filed with this commission. There is
\nnow even a possibility that Komnas HAM will have to establish
\nbranches at the provincial level.<\/p>\n
Indeed, we must admit that the Commission has been quite
\nsuccessful. However, we should also examine the way the
\nCommission looks at human rights-related problems. From its
\nvarious activities we can note that it has predominantly used the
\nperspective of law of procedure. This is apparent in the way it
\nhas dealt with cases of arrest and prosecution, compensation for
\nplants and relocation of settlers as well as the procedures for
\nlabor agreement termination.<\/p>\n
On the legal side, Komnas HAM has not yet addressed the
\nexistence of anti-subversion Law No. 11\/PNPS\/1963, several
\narticles in the Criminal Code that we have inherited from the
\nDutch colonial era (the so-called haatzaai artikelen), the laws
\nregarding political development, as well as a number of decrees
\nand regulations. All of these look at the human rights aspect
\nfrom the perspective of legal policy and this is closely related
\nto the constraints which surround the implementation of human
\nrights in this country.<\/p>\n
Komnas HAM has not yet touched on the human rights perspec
\ntives that deal with freedom of expression, freedom to travel,
\nfreedom of the press, artistic freedom, and -- most importantly
\n-- the freedom of association. These are the main contents of the
\nhuman rights question as a political issue.<\/p>\n
As was mentioned by one of its members, Asmara Nababan, who
\nwas responsible for handling the Sei Lepan case, the results that
\nhave been achieved do not necessarily eliminate the source of the
\nproblems. Furthermore, the constraints and obstacles which the
\ncommission has faced are related to the Commission's own
\nauthority (Forum Keadilan, April 14, 1994).<\/p>\n
The Commission's efforts in several cases seem to have faced a
\nnumber of different constraints. First, there is as yet no clear
\nformulation of the scope of its authority in handling human
\nrights-related cases. For instance, does the Commission have the
\nauthority to handle the case of the suspension of the students,
\nwhich prompted the rector of ITB, Wiranto Arismunandar, to impose
\na curfew on campus?<\/p>\n
Second, the Commission also faces a perspective-related
\nconstraint. As has been mentioned, it looks at human rights-
\nrelated problems from the perspective of law of procedure. In
\nreality, the most significant human rights-related problems may
\nlie elsewhere. For instance -- to use as an example the case
\ninvolving the 21 students detained by the Central Jakarta police
\n-- why were they arrested? Therefore, the part of the human
\nrights problem that has yet to be addressed is before it enters
\nthe law of procedure.<\/p>\n
Third, a number of parties have questioned the independence of
\nthe Commission. They were of the opinion that, because it was
\nestablished on the basis of a presidential decree instead of a
\nlaw, its independence is questionable. Furthermore, all of its
\nactivities were funded by the State Secretariat and not out of
\nthe national budget. The latter option would have emphasized the
\ncommission's independence from the institution of the presidency.<\/p>\n
Finally, the most important and fundamental constraint is the
\ncondition of our political system, which still does not allow the
\nemergence of organized opposition. In addition, there are
\nrestrictions on the free exercise of politics and on the
\nexistence of legal institutions. The struggle to uphold human
\nrights and democracy will have a slim chance of success unless
\nthese constraints are also removed.<\/p>\n
The writer is Director of Communication and Special Programs
\nof YLBHI.<\/p>\n
Window 1: The National Commission on Human Rights has been actively
\ndoing its job. That is, it does not passively wait for complaints
\nto be filed by the public. This practice is such a positive one
\nthat it should be maintained.<\/p>\n
Window 2: Komnas HAM has not yet touched on the human rights perspective
\nthat deals with freedom of expression, freedom of travel, freedom
\nof the press, artistic freedom and, most importantly, the freedom
\nof association.<\/p>",
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