Rights Commission and its constraints

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.