FOR IMMEDIATE RELEASE
August 31, 2012
ALRC-CWS-21-05-2012
Language(s): English only
HUMAN RIGHTS COUNCIL
Twenty-first session, Agenda Item 6
A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general
consultative status
INDONESIA: The ALRC calls for intervention by concerned states in light of the Indonesian Government's failure to accept
key UPR recommendations
The Asian Legal Resource Centre (ALRC) would like to bring the attention of the Human Rights Council (HRC) concerns
relating to Indonesia's Universal Periodic Review (UPR) during the 13th session of the Working Group on the UPR, notably
with regard to the Indonesian Government's failure to accept key recommendations that, if implemented, could have a
positive effect on the protection of human rights in the country. The ALRC is taking this opportunity to urge members of
the Working Group that made such recommendations to urge the Indonesian Government to accept these recommendations as
part of the UPR’s outcome report adoption process during the upcoming 21st session of the HRC in September 2012. The
value of the UPR with regard to human rights in Indonesia, and the credibility of the government’s approach and levels
of cooperation with this mechanism hinge not only on the quantity, but in particular on the quality of recommendations
that the government agrees to accept and implement.
While the Indonesian government agreed to a number of 'general' recommendations concerning the enhancement of the
protection of minorities, the improvement of the human rights situation in Papua, and the elimination of impunity, its
commitment to achieve such goals in reality remains in doubt, given its rejection of a number of more specific and
concrete recommendations concerning these issues.
During Indonesia's UPR review on May 23, 2012, as part of the 13th session of the UPR Working Group, various countries
highlighted the issue of impunity within the country and recommended that the government take measures to combat this
problem. Slovenia, for instance, recommended that the Indonesian government 'ensure all cases of human rights violations
are impartially investigated and prosecuted in proportion with the crimes committed.' Similarly, Australia recommended
that the government ‘ensure fair and proper legal action in relation to those investigated and prosecuted, including
impartial trials and reasonable sentences ... that meets international norms,’ whereas Germany specifically requested
Indonesia to hold accountable officials responsible for human rights violations in the Papuan provinces.
The aforementioned recommendations on impunity, along with similar other ones proposed by Canada and Austria, enjoyed
the support of Indonesia. While this is to be welcomed as a first step, the ALRC is concerned by the fact that the
government failed to accept the more specific and therefore useful recommendation made by Switzerland, which calls for
the government to ensure that cases of human rights abuses against prisoners should be dealt with by civilian courts
instead of military courts. The ALRC has raised concerns about the use of military courts in submissions to the HRC in
recent sessions, notably given that these lack transparency and do not meet the internationally accepted standards
concerning fair trials. Cases of torture against indigenous Papuans by members of the military that the ALRC has
documented, for example, have illustrated how even in high profile cases, the perpetrators of serious human rights
violations typically either enjoy complete impunity or are handed minor and grossly inadequate sentences as the result
of trials by military tribunals.
The ALRC therefore urges the Indonesian Government to show its commitment to taking specific measures that can have a
concrete impact on the current problem of impunity, notably by agreeing to accept and implement Switzerland’s
recommendation, and more widely by ensuring that all allegations of violations of human rights by members of the
military against civilians should be tried by civilian courts, with the full cooperation of the military. In doing so,
it should agree as a first step, to revise its current Law No. 31 Year 1997 on Military Courts, which grants authority
to military courts to try crimes committed by military officials, even if such crimes do not have any military nature.
This provision within the Indonesian Military Court Law lies in contradiction with international human rights standards
which call for the perpetrators of human rights abuses to be tried by independent and impartial courts. The UN Human
Rights Committee has repeatedly emphasised that jurisdiction of military tribunals should be limited to military
offences committed by military personnel. This standard is also established under the UN Principles Governing the
Administration of Justice through Military Tribunals, one of the provisions of which reads: 'the jurisdiction of
military courts should be limited to offences of a strictly military nature committed by military personnel. Military
courts may try persons treated as military personnel for infractions strictly related to their military status.'
In addition to the issue of impunity, concerns as to the Indonesian government’s half-hearted commitment to human rights
can be seen in the way it deals with recommendations related to the protection of religious minorities in the country.
In his statement during the UPR session, Indonesian Foreign Affairs Minister Marty Natalegawa claimed that ‘Indonesia
attaches the highest priority to the issue of freedom of religion’ and promised that the government is determined to
address religious intolerance cases 'and ensure followers, such as Ahmadis, were able to practice their faith and belief
in a good manner’. Indonesia later supported recommendations concerning freedom of religion made by New Zealand, Norway,
Switzerland and Sweden, which made general recommendations concerning the need to review laws and decrees that are not
in accordance with international standards concerning the freedom of religion. However, the government’s will to address
this problem is cast into doubt by its unwillingness to accept a more specific recommendation made by Denmark, which
called for the revision of 1965 Blasphemy Law, the 1969 and 2006 Ministerial Regulations on Building Houses of Worship
and Religious Harmony, as well as the 2008 Joint Ministerial Decrees on Ahmadiyah. The ALRC is aware that the
Ministerial Regulations and Decrees are exclusively under the authority of the executive branch of government. The
revision or repeal of such regulations can therefore be carried out without any delay by the government, should it so
decide. Furthermore, laws in Indonesia are produced jointly by the executive and the parliament. The government should
therefore take the initiative and urge the parliament to revise the Blasphemy Law in line with international human
rights law and standards, or repeal it altogether.
Continuing violations of the freedom of religion following the UPR review do little to convince that the Indonesian
government is serious about taking steps to address the problem. In June 2012, an atheist named Alexander Aan was found
guilty and sentenced to two and a half years imprisonment for disseminating religious hatred on the internet under an
excessively vague provision in the controversial Electronic Information and Transaction Law. In July 2012, Tajul Muluk -
a Shia leader in Sampang, East Java - was also sentenced to two years imprisonment for conducting religious blasphemy as
prohibited under Article 156a point a of the Indonesian Penal Code. In the same month, the residence area of Ahmadiyah
community in Cisalada, Bogor, was attacked by a mob. Several houses were reportedly damaged and four people were
injured, yet there have been no legal measures taken by the authorities against the perpetrators of the attack to date.
The ALRC would like to emphasise that Indonesia's international human rights obligations are binding on all branches of
the government. The UN Human Rights Committee in its General Comment No. 31 has established that ‘The executive branch
that usually represents the State Party internationally, including before the Committee, may not point to the fact that
an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of
seeking to relieve the State Party from responsibility for the action and consequent incompatibility.' Therefore,
although the legal proceeding of cases related to freedom of religion falls into the scope of the judiciary’s authority,
the Indonesian government cannot claim that it is not their responsibility to ensure the prosecution of religious
minority groups, especially given the fact that prosecution is conducted by the Attorney General’s Office, which is part
of the executive.
The ALRC is also concerned by the Indonesian Government’s rejection of key recommendations related to the improvement of
the human rights situation in Papua. The ALRC welcomes the fact that Indonesia accepted several recommendations related
to Papua, such as that made by New Zealand concerning the need to conduct training for security officers in Papua, and
the recommendation made by France regarding the granting of access for civil society and national journalists in the
region.
However, the ALRC is of the view that more comprehensive measures should be adopted by the government if it is seriously
determined to address the human rights issues in Papua and West Papua. These should include: granting full access to
Papuan provinces to the ICRC, as recommended by Germany; inviting the UN Special Rapporteur on the rights of indigenous
peoples to Papua, as urged by Mexico; and to immediately end human rights violations by security officers and impunity
in Papua, as recommended by Japan. Indonesia should also support Canada’s recommendation calling for increased
protection for human rights defenders in Papua and for respect for freedom of expression in the region. Canada also
recommended the review of regulations that can be used to restrict political expression, especially Articles 106 and 110
of the Penal Code, and to release the political prisoners in Papua. The United States similarly called for the halt of
prosecutions under Articles 106 and 110 of the Penal Code and the re-evaluation of convictions as well as sentences of
individuals charged under such articles. The recommendation made by France regarding full and free access to the Papuan
provinces for foreign journalists should also enjoy the support of the Indonesian government.
The ALRC notes with concern that there has been an escalation of violence in Papua after the UPR session last May,
despite the government having been criticised for its human rights record in the region. The violent dispersal of a
peaceful demonstration by Komite Nasional Papua Barat (West Papua National Committee, KNPB), the shooting of KNPB’s Secretary General, Mako Tabuni, and the persecution of KNPB’s activists are a few
examples of human rights abuses took place after the UPR session.
Given the above, the ALRC requests the intervention of the members and observers of the Human Rights Council, notably
the governments involved in making the key recommendations cited above during Indonesia’s UPR, to urge the Indonesian
Government to:
a. Demonstrate its full commitment to combat impunity by supporting the recommendation proposed by Switzerland
concerning the need to try members of the military that are accused of abuses against prisoners in civilian courts and
therefore by committing to revise Law No. 31 Year 1997 on Military Courts. The revision of the law should ensure that
military officers who commit human rights abuses and other crimes which do not have any military characteristics are
tried in independent civilian criminal courts.
b. Take concrete steps to end the persecution of and discrimination against religious minority groups, notably by
accepting and committing to fully implement the recommendation made by Denmark to repeal the 1965 Blasphemy Law as well
as to revise the 1969 and 2006 Ministerial Regulations on Building Houses of Worship and Religious Harmony, and the 2008
Joint Ministerial Decrees on Ahmadiyah. The Indonesian Government should also take legal measures to bring those who
persecute and discriminate against members of religious minority groups to justice.
c. Adopt a set of comprehensive measures to address the issue of human rights violations in Papua, including full access
for national and international journalists, the ICRC and the UN Special Procedures to the Papuan provinces. Protection
of human rights defenders should be guaranteed and undue prosecutions against them halted. Any regulations that
disproportionately restrict freedom of expression such as Articles 106 and 110 of the Penal Code, should be revoked, and
convictions and punishments of individuals under these should be re-evaluated.
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative
status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human
Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights
issues at the local and national levels throughout Asia.
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