Rights Commission and its constraints

By Hendardi

JAKARTA (JP): Last year, the National Commission on Human Rights, known by the Indonesian acronym of Komnas HAM, was established by Presidential Decree No. 50/1993. Its members were appointed through Presidential Decree No. 455/1993. After its establishment under the leadership of former Chairman of the Supreme Court Ali Said, the Commission began visiting victims of cases of human rights violations, listening to their complaints and handling their cases for them.

Many of the Commission's members have a background in law. Some are still active as professors at various state universities. The Commission occupies a temporary office in the office compound of the Directorate General of Correctional Institutions (Ditjen. Permasyarakatan) and it has been reported that the commission receives a donation of Rp 1.5 billion per year from the State Secretariat.

There are a number of points that call for our special attention in relation to the presence of a National Commission on Human Rights in Indonesia. Firstly, the Commission has been actively studying cases of law infringements, visiting those serving time in jail, as well as handling and solving various cases that have occurred in the community. Secondly, It is inter esting to note how the Commission has viewed the human rights related problems or pushed for the inclusion of rights in the law. Thirdly, all of the Commission's activities should also be examined vis-a-vis their political constraints.

The National Commission on Human Rights has been actively doing its job. We could even say that it has been playing the "fetching-the-ball" game, that is, it does not passively wait for complaints to be filed by the public. This practice is such a positive one that it should be maintained.

The Commission's first major activity was to visit 11 student demonstrators who were at that time being held in the Central Jakarta police precinct headquarters. The visit took place on January 4, 1994. These students were detained because of their participation in a protest rally staged at the House of Representatives on December 14, last year. They were demanding that a special session of the People's Consultative Assembly, Council, or MPR, be held.

Members of Komnas HAM conversed with the students in the presence of police officers. They had come to find out whether the process of law had been duly followed and whether the students had been subjected to torture. It was reported that the shaving of their hair was considered a voluntary act.

The next major activity involved the land dispute in Ranca maya, Bogor. Komnas HAM gathered the 387 farmers who were embroiled in a land dispute with PT Suryamas. The latter was considered by the Bogor Regency authorities as the legal owners of the land. The Commission solved the problem by asking the company to pay compensation for the plants growing on the disputed land. A cassava tree was valued at Rp 70,000 a piece, and a papaya tree Rp 100,000. There was no compensation for the land, although there were claims that the certificate held by the company was not legal.

The land dispute in Sei Lepan between settlers and PT Anugerah Langkat Makmur also attracted the Commission's attention. The settlers' land had been reduced by as many as 1,200 hectares. The commission intervened and solved the problem. The settlers were relocated from Sei Lepan to West Pangkalan Brandan.

The Marsinah case was also on the agenda of the Commission. It was prompted by the appeal made by lawyer Trimoelja D. Soerjadi, who was a defense lawyer for the chief of PT CPS, Surabaya and Porong. This lawyer reportedly claimed that his client had been subjected to lockup and torture by officers of the intelligence section of the Brawijaya Military District Command (KODAM).

While the Indonesian Legal Aid Institute, YLBHI, supplied the results of its own investigations to the case as input to Komnas HAM in its attempt to uncover the motives of the murder, the Commission conducted its own independent investigation.

The setting up of Komnas HAM means that YLBHI and a number of NGOs as well as student committees dealing with the human rights issue have one more partner in handling cases of human rights violations in Indonesia.

In its subsequent development, Komnas HAM seems to have been able to handle a number of cases successfully. This has definite ly increased the public's confidence in the Commission's perform ance. Another consequence is that there will be increasing expec tations and more complaints filed with this commission. There is now even a possibility that Komnas HAM will have to establish branches at the provincial level.

Indeed, we must admit that the Commission has been quite successful. However, we should also examine the way the Commission looks at human rights-related problems. From its various activities we can note that it has predominantly used the perspective of law of procedure. This is apparent in the way it has dealt with cases of arrest and prosecution, compensation for plants and relocation of settlers as well as the procedures for labor agreement termination.

On the legal side, Komnas HAM has not yet addressed the existence of anti-subversion Law No. 11/PNPS/1963, several articles in the Criminal Code that we have inherited from the Dutch colonial era (the so-called haatzaai artikelen), the laws regarding political development, as well as a number of decrees and regulations. All of these look at the human rights aspect from the perspective of legal policy and this is closely related to the constraints which surround the implementation of human rights in this country.

Komnas HAM has not yet touched on the human rights perspec tives that deal with freedom of expression, freedom to travel, freedom of the press, artistic freedom, and -- most importantly -- the freedom of association. These are the main contents of the human rights question as a political issue.

As was mentioned by one of its members, Asmara Nababan, who was responsible for handling the Sei Lepan case, the results that have been achieved do not necessarily eliminate the source of the problems. Furthermore, the constraints and obstacles which the commission has faced are related to the Commission's own authority (Forum Keadilan, April 14, 1994).

The Commission's efforts in several cases seem to have faced a number of different constraints. First, there is as yet no clear formulation of the scope of its authority in handling human rights-related cases. For instance, does the Commission have the authority to handle the case of the suspension of the students, which prompted the rector of ITB, Wiranto Arismunandar, to impose a curfew on campus?

Second, the Commission also faces a perspective-related constraint. As has been mentioned, it looks at human rights- related problems from the perspective of law of procedure. In reality, the most significant human rights-related problems may lie elsewhere. For instance -- to use as an example the case involving the 21 students detained by the Central Jakarta police -- why were they arrested? Therefore, the part of the human rights problem that has yet to be addressed is before it enters the law of procedure.

Third, a number of parties have questioned the independence of the Commission. They were of the opinion that, because it was established on the basis of a presidential decree instead of a law, its independence is questionable. Furthermore, all of its activities were funded by the State Secretariat and not out of the national budget. The latter option would have emphasized the commission's independence from the institution of the presidency.

Finally, the most important and fundamental constraint is the condition of our political system, which still does not allow the emergence of organized opposition. In addition, there are restrictions on the free exercise of politics and on the existence of legal institutions. The struggle to uphold human rights and democracy will have a slim chance of success unless these constraints are also removed.

The writer is Director of Communication and Special Programs of YLBHI.

Window 1: The National Commission on Human Rights has been actively doing its job. That is, it does not passively wait for complaints to be filed by the public. This practice is such a positive one that it should be maintained.

Window 2: Komnas HAM has not yet touched on the human rights perspective that deals with freedom of expression, freedom of travel, freedom of the press, artistic freedom and, most importantly, the freedom of association.