Indonesia’s Rule of Law & Human Rights

The Supreme Court is the highest and final court of appeal with a restrictive power of judicial review over regulations under laws against laws. Instead, the Constitutional Court, created in 2003, is a court of first and final instance having the authority to determine the constitutionality of Indonesia’s law (undang-undang).

Article 1(3) of the 1945 Constitution clearly states that Indonesia is governed by the rule of law. Furthermore, the 1945 Constitution affirms that human rights should be upheld in accordance with the principles of a democratic and law-based state. However, it was not until the Second Amendment of 2000 that the Indonesian Constitution included an expanded list of rights under Chapter XA entitled “Human Rights”.

The issuance of Law No. 39 Year 1999 on Human Rights reinforced the creation of the National Commission on Human Rights (Komnas HAM), initially established under Presidential Decree No. 50 Year 1999. Komnas HAM is endowed with the functions to study, research, disseminate, monitor, and mediate human rights issues. Komnas HAM has completed investigations into five past human rights cases and recommended that the Attorney General’s Office establish ad hoc human rights courts for the following cases: Trisakti Case (1998), Semanggi I (1998) and Semanggi II (1999) Cases, May 1998 Case, Talangsari Case (1989), and Wasior and Wamena (2000). The establishment of such human rights courts was impeded by the unwillingness of the Attorney General’s Office to prosecute the cases.

Law No. 26 Year 2000 on Human Rights Court called for the establishment of a human rights court tasked with the authority to hear and rule on cases of gross violations of human rights, namely genocide and crimes against humanity. Under the Law, two ad hoc human rights courts were established for the Tanjung Priok and East Timor cases. In addition to the two ad hoc human rights court there are four permanent human rights courts in Jakarta, Surabaya, Medan, and Makassar. The Abepura case (2000) was the first case ever heard by the permanent human rights court in Makassar.

In addition to Komnas HAM, the Government also set up a number of national institutions relevant to the promotion and protection of human rights and rule of law, namely the National Commission on Violence against Women (Komnas Perempuan); National Commission for Child Protection (KPAI); Judicial Commission of Indonesia; Ombudsman of the Republic of Indonesia; Corruption Eradication Commission (KPK); National Police Commission (Kompolnas); Prosecutorial Commission; Constitutional Court; Witnesses and Victims Protection Agency (LPSK); National Law Commission (KHN); and General Election Commission.

Indonesia has ratified or accessed to eight of nine international human rights treaties, namely the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC) and two of its Optional Protocols, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), and the Convention on the Rights of Persons with Disabilities (CRPD). Indonesia is a signatory to the Optional Protocol to the Convention on the Elimination of Discrimination against Women (OP-CEDAW) and the International Convention for the Protection of All Persons from Enforced Disappearances (CPED).

Indonesia was selected as a member of the UN Human Rights Council (2011-2014) for the third consecutive period since 2006. As of September 2013, Indonesia has received 13 visits of the UN Special Procedures and agreed to the visits of the Special Rapporteur on Freedom of Expression and the Special Rapporteur on Health.

Several Indonesian nationals serve as experts with the UN Special Procedures: Mr. Marzuki Darusman, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, and Ms. Kamala Chandrakirana, the Chair-Rapporteur of the Working Group on Discrimination against Women in Law and in Practice.

Indonesia and the Philippines were the first countries in Southeast Asia to undergo the first cycle of the Universal Periodic Review (UPR) in 2008. Indonesia underwent the second cycle in 2012. In the first cycle Indonesia accepted recommendations which included developing human rights training and education for law enforcement officials; signing and acceding to human rights instruments; support and protection of the work of civil society; combating impunity; revising the Criminal Code and developing systems of sharing best practices.

In the second cycle of the UPR, the review emphasized the failure of the Government to fully implement a number of recommendations accepted during the first cycle and highlighted new areas of concern, including the human rights situation in Papua and West Papua; religious intolerance and violence against religious minorities; criminalization of torture; protection of human rights defenders; and a moratorium on the death penalty.