Answer Styannes, ALRC;
Febi Yonesta, Jakarta Legal Aid Institute (LBH Jakarta);
Deddi Alparesi, LBH Padang
1. Are all persons and authorities bound by the same laws?
No. The military personnel are bound by a different criminal law and tried by a military court even though the crime committed is an ‘ordinary crime’. For civil matters (marriage, inheritance, etc), the Muslims are bound by Islamic law, which is separate. In Indonesia, the law also gives privilege to six major religions in the country. Permit from the President is needed for the authorities to investigate and try the local authorities.
2. Are all persons and authorities entitled to the benefits of all laws?
No. The powerful and privileged people can access the protection of the law, whereas the disadvantaged and marginalized people cannot enjoy equal protection and guarantee of the normative laws. For instance, the guarantee to access to justice is simply not obtained by the underprivileged.
3. Are all laws publicly made?
Although legally speaking public participation in law-making has been guaranteed, there is no meaningful participation on the law-making process. Rather, participation simply becomes a rubber stamp to create the impression that the government has implemented the mandate of the law and the constitution.
4. Are all laws promulgated so that all persons can know what the laws are?
It is presumed that people know the existing laws. Although the law is included in the state gazette, the absence of the government’s effort to disseminate the law into the most remote and uneducated Indonesian society, results in the lack of awareness as well as of the knowledge of the people to the newly applicable laws.
5. Are all laws applied only prospectively?
Yes, apart from the Human Rights Court Law which tries the crime of genocide and crimes against humanity.
6. Are all laws administered in the courts?
No. Most judges are never willing to accept the application of international human rights treaties that have been ratified by domestic legislation. The judges tend to use national legislations and never tried to formulate judgments using the international judgments or the constitution.
a. Is the investigative system under the police adequate to enable the courts to administer justice?
No. The investigation system commonly practiced by the police in uncovering crime is mostly based on the confession of the suspect, which in most cases involves torture. There is no adequate scientific investigation to obtain probable cause. With inadequate evidence, the judges carry on giving judgments, even disregarding the facts that may contradict evidence provided by the investigators as well as the prosecutors.
b. Is the prosecution system adequate to enable laws being administered by the courts?
Disregarding any possible allegation of torture or unlawful procedures of obtaining statements, information, or confessions, the prosecutors carry on with the prosecution. The prosecution system is not integrated with the investigation, and the prosecutors have limited capacity to instruct the police in conducting investigations.
c. Are the courts interfered with by the government or other political pressures or by pressure from powerful lobbies?
Even though the judiciary is separated from the executive (daily administration of the state), in practice, the selection process of the judges may affect their independence. Many judges are also involved in corruption. In some cases, crowds are deployed to attend hearings to intimidate judges and witnesses.
d. Is there public confidence that the courts competently and impartially administer the law?
No. The public even consider the courts ‘terrifying’, choosing to settle their disputes outside the courts. As a result, people often take the law in their own hands in dealing with crimes.
e. Is the procedure for appointment, promotion and dismissal of judges made through an objectively justifiable process that inspires public confidence?
Corruption as well as nepotism play a role in the recruitment of district court judges. The recruitment at this stage has no oversight by any other independent mechanism. In the appointment of Supreme Court judges, there are political interests and corruption involved in practice. At the moment, the House of Representatives (attended by members of political parties) has the authority to appoint Supreme Court judges. The system of promotion and mutation of judges are not clear or transparent.
f. Are the positions of judges secure from any interference into the making of decisions, impartially and independently?
No. See above.
g. Once the court makes a decision, is it guaranteed that the decision will be implemented?
No. There are examples where the government disregards the final judgments of the court.
h. Are the police, prosecution services and the courts provided with adequate resources to administer their services in a competent and efficient manner?
The institutions are lacking in human resources, in terms of capacity and number. The number of police, judges, and prosecutors are not proportionate compared to the number of cases. They are also lacking in budget and infrastructure. The lack of budget is therefore used to justify illegal collection of money.
i. Are all possibilities of corruption prevented?
There is a war against corruption in Indonesia. However, it has not addressed corruption in the legal system. The war also focuses more on the punishment of the crime, instead of its prevention. In those cases, the perpetrators are mostly sentenced with light punishment, which does not provide any deterrent effect or shock therapy. The litigation fee is often marked-up by the courts’ clerks, perhaps due to the manual system used by the court.
7. Are the laws accessible to all?
No. There are attempts of the government authorities to publish the law on the internet, but many Indonesians living in remote areas as well as those who are poor cannot access the internet in the first place.
8. Are the laws, so far as possible, intelligible, clear and predictable?
No. In many instances the laws are not predictable due to the failure of the government to harmonise the laws and other regulations.
9. Do the laws afford adequate protection of fundamental human rights?
Not adequately. The law still has not criminalized torture, for instance.
a. Do the laws adequately prevent any form of discrimination?
We have the law on anti-racial and ethnic discrimination, but not on religious discrimination.
b. Do the laws prevent extrajudicial killings and disappearances and other methods of the extrajudicial deprivation of life?
There are no means, under the law, in which we can question or challenge the claim of the police or security officials that the killings of ‘criminals’ are ‘inevitable because they were attacking or attempting to escape’.
c. Is torture and ill-treatment prohibited and prevented?
d. Is illegal arrest and detention prohibited and prevented?
There is a way in which we can challenge our arrest and detention, but this does not stop illegal arrest and detention. Police officers who commit such illegal arrest and detention cannot be held criminally accountable, but only subjected to internal disciplinary mechanism under the police.
e. Is fair trial guaranteed to everyone?
On paper, yes.
f. Is freedom of expression guaranteed?
Not totally. In Papua, individuals who have different political views and wish to separate Papua from Indonesia are arrested because the law allows it. Freedom of expression is also violated by non-state actors (for instance, forced dispersal of peaceful meetings by minorities) but they are hardly sentenced.
g. Is the right to freedom of movement guaranteed?
h. Are the freedoms of association and freedom of publication guaranteed?
The freedoms are unreasonably limited. For instance, the government and the parliament enacted a law on mass organizations last year, which obliged all non-governmental organizations to ‘report’ to the government. Under the same law, such organizations may also be banned by the government if their activities or visions are not in accordance with the country’s vague values such as ‘sovereignty and territorial integrity’.
i. Do people have the right to elect the government of their choice?
k. Are measures taken to prevent absolute power?
After 1998, yes.
12. Are means provided for resolving, without prohibitive cost, or inordinate delay, bona fide disputes which parties themselves are unable to resolve?
a. Is the cost of litigation prohibitive?
In civil proceedings, yes.
b. Are there inordinate delays?
Yes, particularly in civil proceedings.
c. Can people have recourse to courts without suffering the risks of physical harm and other attacks or threats to their life?
Yes, but only if you have lawyers and if you have access to the media (thus you can expose the case and win the public’s opinion).
d. Can a witness participate in court proceedings without incurring risk to their life and liberty?
Yes, but conditionally. If the witness’s testimony will not harm any influential people or people with/in power then no.
10. Do the ministers and public officers exercise their powers reasonably and in good faith, for the purpose for which the powers are conferred?
a. Do public ministers and public officers exceed the limit of their powers?
11. Are the adjudicative processes provided by the state fair?
For the reasons stated above, adjudication processes are not fair.
a. Are decisions made behind closed doors?
In political cases or cases involving ‘important people’, then yes.
b. Has the role of lawyers become an obstacle to fair practices in adjudication?
12. Does the state comply with its international obligations?