Indonesian legal system does not have a special law procedure which regulates pre-trial mechanism, and which can challenge whether or not arrest or detention has been lawful. Therefore, the accused or suspects face difficulty in exercising their rights with regard to the due process of law. This needs to be addressed not only by lawmakers but also by the wider Indonesian society and the international community, considering the scale and frequency of arbitrary arrest and detention that continue to occur in Indonesia.
An Open Letter from the Asian Human Rights Commission (AHRC) to the Chairperson Working Group on Arbitrary Detention, Mr. Mads Andenas
Mr. Mads Andenas
Working Group on Arbitrary Detention
1211 Geneva 10
Fax: +41 22 917 9006
(ATTN: WORKING GROUP ARBITRARY DETENTION)
Dear Mr. Andenas,
INDONESIA: Arbitrary detention occurred frequently, law reform stagnant
The Asian Human Rights Commission (AHRC) wishes to draw the attention of the UN Working Group on Arbitrary Detention to the problem of arbitrary detention in Indonesia, which occurs widely and frequently in the State. Despite Indonesia being a State party to the International Covenant on Civil and Political Rights, the needed redesigning of the justice institutions, to reduce arbitrary arrest and detention, has yet to be done.
Indonesia still applies old criminal law, namely the Indonesian Penal Code (KUHP) and the Criminal Law Procedures Code (KUHAP) in an enforcement system where arbitrary detention can be used with impunity. The process to revise the KUHP and KUHAP has gone on for a decade now without any result. In the meanwhile, arbitrary arrest and detention are rife.
KUHAP No. 8 of 1981 needs to be revised immediately; it has retrogressive provisions. The police can detain an accused person for 120 days (Article 29, KUHAP) if the accused is charged with more than nine years imprisonment and 60 days for charges amounting to less than 9 years imprisonment. Under these provisions, the police continue to abuse their power. The police arrest and detain accused persons without an arrest warrant, taking shelter behind these provisions.
Take, for example, the murder of Mr. Achmad Kasaeri, from Benculuk Kulon Village, Pasuruan Regency, East Java Province Indonesia. On 20 January 2014, he was arrested without arrest warrant, and beaten. The police accused him of masterminding a robbery that occurred in another village. The next day, the police returned his corpse to his shocked family without explanation.
The AHRC has documented numerous cases of arbitrary detention in Indonesia. The Centre has found that the background of victims of arbitrary detention is diverse. Victims include children, poor people, vulnerable groups, and members of indigenous communities. Moreover, the AHRC has also documented and reported cases of arbitrary detention. The case of Fiki Arfindo, a 13-year-old boy, is a notable example (AHRC-UAC-094-2015). Police officers of the Widang Police Sector, Tuban Regency, East Java Province, illegally arrested, detained, and tortured Arfindo. The boy was stripped naked, kicked, and beaten in custody. The officers threatened him with a gun. He was forced to confess to having stolen a motorbike.
Another AHRC documented case (AHRC-UAC-087-2015) is that of the arbitrary detention and torture to death of alleged motorcycle thieves. The police officers of Serpong Police Sector, Banten Province, arrested 19 alleged motorcycle thieves known as “Begal”. The accused were detained and tortured for four days. The names of five of the accused eventually tortured to death are Mr. Abdul Wahab, Mr. Ibrahim, Mr. Ahmad Safei, Mr. Ali Husin, and Mr. Ali Iro. According to the other suspects who witnessed the torture, these five men were kicked, beaten, and shot to death. One of the victims, Ahmad Safei, was shot in the chest.
Arbitrary arrest and detention are often used in conjunction with fabricated charges. This abuse of police power is witnessed in the police bringing fabricated or trumped up criminal charges against anybody who has dared to speak up about the corruption of Police Commissaries General Budi Gunawan, currently the Vice Chief of National Police. Mr. Novel Baswedan, senior investigator of the Anti-Corruption Body (KPK), and Mr. Bambang Widjojanto, a KPK Commissioner, have suffered arbitrary arrest for the same reason. They have been charged and named as suspects in minor cases, after they publicly named Police Commissaries General Budi Gunawan as a suspect in a case of graft.
Arbitrary detention has also resulted in enforced disappearances of victims. The arbitrary arrest of Mr. Dedek Khairudin, a fisherman from Perlis Village, Brandan Barat Sub-District, Langkat Regency, North Sumatera, conducted by six soldiers of the Indonesian navy, and one soldier of the Indonesian Army of Regional Command, KODIM, Intelligence 011/ LW Pangkalan Brandan, North Sumatera Province, is an example of this. Dedek is still missing, and there has been no significant effort made by the government to find the whereabouts of Dedek.
Under these circumstances, law reform and a redesigning of the justice institutions in Indonesia are needed to address the deep flaws that allow arbitrary arrest and detention to be frequently conducted by the police. Despite this problem of arbitrary arrest and detention having been raised since the 1998 reforms, the Government of Indonesia still applies the old law, namely KUHP and KUHAP.
Furthermore, the Indonesian legal system does not have a special law procedure which regulates pre-trial mechanism, and which can challenge whether or not arrest or detention has been lawful. Therefore, the accused or suspects face difficulty in exercising their rights with regard to the due process of law. This needs to be addressed not only by lawmakers but also by the wider Indonesian society and the international community, considering the scale and frequency of arbitrary arrest and detention that continue to occur in Indonesia.
Therefore, the AHRC respectfully calls upon the UN Working Group on Arbitrary Detention to urge the Government of Indonesia:
a. To prioritize legal transformations, which must at the very least include a radical revision of the KUHP and KUHAP as soon as possible;
b. To strengthen due process of law by ensuring police reform and by promulgating regulations for the pre-trial mechanism to challenge arrests and detention on the basis of due process;
c. To invite the Working Group on arbitrary detention to visit Indonesia, as a commitment to strengthen protection of human rights in the country.
We look forward to your intervention on this matter.
Executive Director of the Asian Legal Resource Center