Much work needed to end ethnic discrimination

Frans H.Winarta, Lawyer, Jakarta

Indonesia is an archipelagic country that displays a significant degree of tolerance for ethnic, racial and religious differences -- compared to discrimination against ethnic Chinese. The dominant ethnic group seems to have many reasons for resenting those of Chinese descent, a sentiment which became more obvious after the attempted coup of 1965 (given allegations of the involvement of China's communist party -- Ed.). An inappropriate economic paradigm has been in place since then, creating a wide gap between rich and poor, and an incorrect demographic policy has also been imposed on Chinese Indonesians.

Since 1959 non-citizens within the ethnic Chinese population have been denied the right to run businesses in rural Indonesia. Sometimes, Chinese-Indonesians have been made scapegoats by those venting popular frustrations, especially those urban Muslim communities that regard the Chinese as both racially and religiously distinct.

Chinese language publications, with the exception of one officially sanctioned daily newspaper, were neither to be imported nor produced. Under Presidential Decree No. 14 1967, the use of Chinese symbols and many other Chinese cultural traditions were restricted. For example, Lunar New Year celebrations, which had been enjoyed by Indonesians for hundreds of years as a form of spectacular entertainment and an expression of harmonious relations between ethnic groups, suddenly disappeared.

Former president B.J. Habibie ended the use of the term indigenous (pribumi) and non indigenous (non pribumi) through Presidential Instruction no. 26 1998 in government policies and activities. The policy shift continues to affect a large group of people and implies that Indonesians of Chinese descent are equal to other citizens. The tradition of the Lunar New Year might seem trivial to some officials but it is an important part of Chinese tradition. It is clearly a basic right for the Indonesian Chinese.

The New Order regime under Soeharto promoted anti-Chinese sentiment by denying ethnic Chinese opportunities for political expression. They were only allowed to be active in the business sector and consequently became an exclusive group.

It is true that the Chinese are prominent in trade and commerce, which has led to the perception that they are exploitative, exclusive and arrogant.

The economic crisis peaked in the May 1998 riots. The riots were an expression of the sentiments fostered under the racially discriminatory policies of former president Soeharto. At least 1,200 people are believed to have died, including indigenous Indonesians killed in fires. Several hundred Chinese were killed by mobs and many others injured, while dozens of Chinese women were raped and many properties looted.

Whenever riots have taken place, it is Chinese Indonesian traders and citizens who have become the victims. The state has a responsibility to guarantee the safety of all citizens under the 1945 Constitution. In view of the circumstances and period in which the 1945 Constitution was drafted, the very brief provisions on human rights can be understood. The document was drafted hastily at a time when Indonesia was still under the Japanese occupation and when it was still struggling for independence.

In the Annual Session of the People's Consultative Assembly in August 2000 one of the proposals for amending the 1945 Constitution included the inclusion of a substantial new chapter, chapter 10A on human rights.

Article 28i paragraph 2 of the proposed new chapter states: "Everyone has the right to be free from any discriminative action on whatever basis and is entitled to protection from such discriminative action".

According to legal expert Satya Arinanto, such a new chapter would make no significant contribution to the future protection of human rights, as its articles are similar to those in the 1999 human rights law; a constitution on the other hand is supposed to prescribe more basic principles of human rights and fundamental freedoms than its lower laws and regulations.

Yet despite the law on human rights and the guaranteed fundamental freedoms in the Constitution, discriminative regulations remain -- even in the 1945 Constitution.

An amendment has changed the article on citizens and residents as follows: "Residents are Indonesian citizens and foreigners residing in Indonesia"; "Any other matters with respect to citizens and residents will be further stipulated by law".

But clause 1 Article 26 of the Constitution still reads: "A citizen is an indigenous Indonesian person and persons of other races who are confirmed as citizens by law".

It is time for President Megawati Soekarnoputri to seriously consider implementing legal reform, and not just place a priority on economic and political reforms. This could be achieved by repealing discriminative laws and regulations, which would eventually bring the law in line with the spirit of the founding fathers who sought to uphold a state based on law (rechtstaat) rather than on power (machtstaat).

Last but not least, a serious, clear and conducive program of legal reforms should be introduced if Indonesia wants to be considered a modern and civilized state.

The above article was condensed from the writer's presentation at an international symposium on human rights in Canberra in December.