Asia

Indonesia: Piecemeal approaches to systemic and institutionalised discrimination

“When the Soeharto regime was overthrown, an opportunity arose for the review of the 1945 Constitution and the adoption of a new Constitution to meet the aspirations of the people for a democratic country under the rule of law, as happened in the Philippines in 1987. Unfortunately, this did not happen. The piecemeal amendments to the Constitution since 1998, and moreover some of these amendments yet to be implemented, are not satisfactory.” –Dato Param Cumaraswamy, UN Special Rapporteur on Independence of Judges and Lawyers in his Indonesian mission report to the 59th session of the United Nations Commission on Human Rights in March-April 2003.

Reform in Indonesia has been all about piecemeal amendments to the Constitution of 1945 and various laws. The Initial to Third Periodic Reports (CERD/C/IDN/3 of 4 April 2006) under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) only informs about the positive administrative measures taken so far, and not about the counter-measures taken to nullify many of these positive measures. The message of the periodic reports can be summarised in one sentence: since discrimination is prohibited under Law No. 39 of 1999 concerning human rights, there are no violations of the provisions of ICERD in Indonesia.

1.1 Racism and racial discrimination in Indonesia can only be rightly understood from a series of violent conflicts that took place in Aceh, Papua, the Malukus, Central Sulawesi, and Central and West Kalimantan after the fall of Soeharto. The extent of the violence was such that by August 2004 there were 1.3 million internally displaced persons spread throughout the Archipelago. The descriptions of these conflicts as separatists, uncivil, inter-religious i.e. between the Muslims and the Christians or conflict over mere land and natural resources are simplistic and misleading. These conflicts have racial dimensions and they took place between the transmigrasis, the settlers from Java, Bali and Madura who were implanted in the outlying Islands inhabited by indigenous peoples. The transmigrasis mainly follow Islam while the indigenous peoples are predominantly Christians. Many indigenous peoples like the Papuans ethnically belong to the Melanesian stock and are therefore different from the transmigrasis. An estimated 3.6 million people were planted on the lands of indigenous peoples upto 1990 which according to the Operations Evaluation Department of the World Bank had a “major negative and irreversible impact on indigenous peoples”. Yet, the periodic reports do not mention a single word about its population transfer programme.

2.1 The 1945 Constitution of Indonesia recognized the indigenous peoples. Clause 3 of Article 28I provides that “The cultural identities and rights of traditional communities shall be respected in accordance with the development of times and civilisations.” However, through Presidential Instruction No. 26 of 1998, the government banned the use of the terms “indigenous” and “non-indigenous” in all official documents. In its periodic reports, Indonesian government had the audacity to describe this racist Instruction as a reflection of its “further commitment to eradicating and preventing the occurrence of any form of discrimination in Indonesian society,… grant the equal treatment and services for all the people of Indonesia; as well as reviews and adjusts all laws and regulations, programs, policies and the implementation of programs”. This Presidential Instruction denies the cultural identities of indigenous peoples, violates their cultural rights and negates the principles for affirmative action as provided under the ICERD.

2.3 In its Periodic Reports (para 64), Indonesia states that “in reality, ensuring the survival of the indigenous people is proven to be a daunting task. The indigenous people live dependent on nature, not by social contract”. What the periodic reports fail to mention is that “ensuring the survival of the indigenous peoples is proven to be a daunting task” because of the policies and programmes adopted by the government of Indonesia. For example, the proposed Kalimantan Border Oil Palm Mega-project requires 1.8 million hectares of land at the heart of Borneo. This project will not only destroy three national parks of Betung Kerihun (800,000 hectares), Kayan Mentarang (1,360,000 hectares), and Danau Sentarum (132,000) but will also destroy indigenous peoples' means of survival – dependence on nature as rightly recognized by the Indonesian government. It will change their way of life, modes of production and indigenous peoples evicted from their lands will be reduced to labourers in the plantations. The lands of indigenous peoples are already being grabbed by force, fraudulent means and inducements. Under the law, the quantum of compensation is determined by the government and indigenous peoples do not have the right to free, prior and informed consent.

3.1 In Papua, which was annexed through rigged Act of Free Choice of 1969, there have been reports of consistent and systematic violations of human rights and fundamental freedoms against indigenous Papuans of the Melanesian ethnic origin by the security forces mainly belonging to the Javanese Muslims. The fall of Soeharto's dictatorship changed little.

3.2 There are many prisoners of conscience in Papua who were arrested for merely raising the Papuan Morning Star flag. On 26 May 2006, an Indonesian court sentenced Mr Filep Karma to fifteen years in prison on charges of treason and expressing hostility towards the state for taking part in a flag-raising ceremony on 1 December 2004. Another student, Yusak Pakage received a ten-year sentence for the same offence. On 9 and 11 July 2007, leading leaders of the Papuans belonging to the Papuan Presidium Council and Papuan Dewan Adat were interrogated for hours together in Jayapara for raising the Morning Star flag during the opening ceremony, of the Papuan Tribal Congress. Earlier on 1 July 2007, the Indonesian military reportedly started shooting in villages in Bolakme when the flag was raised.

3.3 Many Papuan leaders espousing the right of self-determination of Papua were systematically eliminated. Mr Theys Eluays, leader of the Papuan Presidium Council, was murdered while being driven home from a dinner at the Kopassus Special Forces' headquarters in the provincial capital Jayapura on 10 November 2001. He went to hold talks with the army. On 21 April 2003, a military court in the port city of Surabaya convicted four army personnel belonging to Indonesia's notorious Kopassus, Indonesian Special Forces Command, for “mal-treatment”, and not for murder of Theys Eluay.

3.4 Many Papuans have been facing intimidation and harassment for meeting the UN Special Representative of the UN Secretary General on Human Rights Defenders during her visit to Indonesia in June 2007. This includes attempt at the lives of Frederika Korain and Priest Perinus Kogoya of Peace and Justice Commission for the Diocese of Jayapura and intimidation of Mr Yan Christian Warinussy, Executive Director of the Institute of Research, Analysis and Development for Legal Aid and Mr. Albert Rumbekwan, head of the Komisi Nasional Hak Asasi Manusia (National Human Rights Commission, Komnas HAM), Papua Province.

3.5 The Papua Special Autonomy Law No. 21/2001 provided a window of opportunity to resolve the historic problems but the authorities in Jakarta have squandered it. In violation of Article 76 of Law No. 21 of 2001 (Papuan Special Autonomy Law) which stipulates that the creation of new provinces in Papua must have the approval of the Papua People's Council (Majelis Rakyat Papua) and the Provincial Legislative Council, the government went ahead and divided Papua into two provinces after then President Megawati Sukarnoputri passed Presidential Decree No.1 of 2003. The Presidential Decree No. 1 of 2003 called for the speedy implementation of Law No. 45/1999 which authorized to divide the West Papua into Papua, Central Iriyan Jaya and West Iriyan Jaya. While the creation of Central Iriyan Jaya was abandoned due to violent protest, Indonesia's Constitutional Court in a judgement in November 2004 sanctified the partition of Papua into two provinces as a political fait accompli.

3.6 The present administration of President Susilo Bambang Yudhoyono also does not have any political will to resolve the Papua problems. Instead of implementing the Papua Special Autonomy Law, on 16 May 2007 President Yudhoyono signed the Presidential Decree No. 5/2007 regarding the Speeding of the Development of the Province of Papua and the Province of West Papua. This Decree instructs 11 ministers, 2 governors and all regents in Papua to: [1] maintain the food security and poverty reduction, [2] improve the quality of education services, [3] improve the quality of health services, [4] improve basic infrastructure to improve the accessibility of the isolated and remote areas as well as the border area, and [5] take affirmative action for development of the indigenous Papuans. Though access to basic services remains a priority for the Papuans, this is an attempt to reduce the Papua political conflict into an economic one.

3.7 The PT Freeport Indonesia owned by the United States based global mining giant Freeport- McMoRan Copper & Gold Inc in Jayapura, Papua has been responsible for destruction of environment and livelihood of the indigenous peoples. The New York Times reported on 27 December 2007 that 160 people had been killed by the military between 1975 and 1997 in the mine area and its surroundings. The New York Times further reported that its requests to “visit the mine and its surrounding area, which requires special permission for journalists were turned down”.

3.8 Since 1977 violations of human rights have been systematically and consciously carried out by the Indonesian military and police with the support of PT Freeport Indonesia. After a series of riots in March 1996 against the Freeport mine in which the mine was forced to shut down for three days, Freeport hired Indonesian army for its protection. The company documents obtained by The New York Times showed that “from 1998 through 2004, Freeport gave military and police generals, colonels, majors and captains, and military units, nearly $20 million. Individual commanders received tens of thousands of dollars, in one case up to $150,000…. Freeport  spent $35 million on military infrastructure -barracks, headquarters, mess halls, roads - and it also gave the commanders 70 Land Rovers and Land Cruisers, which were replaced every few years. Everybody got something, even the Navy and Air Force.”

3.9 Freeport failed to benefit indigenous Papuans. It reportedly provided Indonesia with $33 billion in direct and indirect benefits from 1992 to 2004. In 2005, the company's annual report stated that it extracted metals worth US$3.5bn and paid $1.2bn in taxes and royalties to the government in Jakarta. However, Papuans suffered further pauperization. Papua is at the lowest rank in Human Development Index (HDI) amongst Indonesia's 32 provinces with 35% of the total population living below the poverty line.

3.10 The Freeport mining has destroyed the environment and livelihood of the indigenous Papuan peoples. According to The New York Times, approximately 300,000 tons of mine waste is being dumped into the Aghawaghon-Aijkwa river system daily which destroyed the ecosystem.According to the Freeport, it “will generate an estimated six billion tons of waste before it is through - more than twice as much earth as was excavated for the Panama Canal”. At least 2.5 million hectares of land have been taken away from indigenous Papuans who were forced to surrender their ancestral lands in the form of concessions given to the company by the Indonesian Government.

4.1 While in its periodic reports (Para 28), Indonesia recognizes that “Indonesians usually practice Islam, Protestantism, Catholicism, Hinduism and Buddhism as well as other beliefs, including traditional indigenous religions”, it fails to mention that non-formal or “traditional indigenous religions” such as the Naurus in Maluku; Kepercayaan in Kalimantan, Papua and Java; Kaharingan in Kalimantan; Sunda Wiwitan in West Java; and Tolotang in South Sulawesi are not recognised and classified as “other”. About 0.2 per cent of the 241 million population of Indonesia were classified as ‘other' by the Central Bureau of Statistics as per its national decadal census in 2000. They face harassment and difficulties in the form of long delays and they have to pay bribes, euphemistically called ‘extra' payment, when they apply for an identity card, Kartu Tanda Penduduk (KTP).

5.2 On 8 September 2005, a special Human Rights Court in Makassar acquitted two senior police officers who were found guilty by the National Human Rights Commission, Komnas HAM, for allowing the killing of three Papuan students and the torture of over 100 others in Abepura on 7 December 2000. The two accused police officers, Brigadier General Johny Wainal Usman and Senior Commissioner Daud Sihombing were charged with command responsibility for the killings and torture. They faced a maximum penalty of life imprisonment if convicted. But Chief Prosecutor I Ketut Murtika recommended the minimum penalty of only 10 years, claiming the two accused had “served the nation” and “did not have malicious intentions”. The court went a few steps further to exonerate both the accused officers and rule that they were not guilty of allowing their subordinates to torture and kill civilians during the raid.

6.1 Human rights courts of Indonesia established under Law No. 26 of 2000 have the notorious reputation of shielding the culprits. As stated above even two officials charged by the Attorney General for the killing of three Papuan students and the torture of about 100 others on 7 December 2000 at Abepura, West Papua were exonerated by  the Human Rights Court. The US State Department's Country Report on Human Rights Practices (Indonesia 2006) stated “in recent years Komnas HAM's efforts to expose human rights violations and bring perpetrators to account were undermined by a number of court decisions regarding its jurisdiction or authority. In 2003 a Jakarta court refused to subpoena former and active military officers who had ignored Komnas HAM summonses to face questioning about 1998 riots, which claimed more than 1,200 lives.”

Recommendations

AITPN made the following recommendations for consideration by the CERD Committee:

Recommend to:

• the State party (Indonesia), World Bank, Asian Development Bank, UN agencies and other multilateral and bilateral financial institutions to undertake affirmative action programmes to remove the negative impacts with full and effective participation of indigenous peoples;
• repeal that Presidential Instruction No. 26 of 1998 banning the use of the terms “indigenous” and “non-indigenous” in all official documents;
• amend various laws relating to indigenous peoples in particular the Forestry Acts (Act No. 5 of 1967 and Act No. 41 of 1999), Law No. 11 of 1967 on the Principles of Mining, Act No. 5 of 1990 concerning the Conservation of Biological Resources and the Ecosystem and Presidential Regulation No. 36 of 2005 on Land Procurement for Development for Public Purposes to recognise the rights of the indigenous peoples;
• fully respect and implement the right of ownership, collective or individual, of the members of indigenous communities over the lands traditionally occupied by them in its practice concerning indigenous peoples. The State party should seek the prior informed consent of communities while taking away any land for the Kalimantan Palm Oil Project in full conformity with the general recommendation No. 23 of the ICERD;
• fully implement the Papua Special Autonomy Law No. 21/2001 in letter and spirit and initiate dialogue with the legitimate representatives of Papuan society on a wide range of issues including truth, justice and reconciliation, security arrangements, and division of the province.
• release all the prisoners of conscience including Mr Filep Karma and Yusak Pakage who were sentenced to 15 years and 10 imprisonment respectively for raising the Papuan Morning Star flag and to immediately stop intimidation and harassment of the leaders of the Papuans belonging to the Papuan Presidium Council and Papuan Dewan Adat for raising of the Morning Star flag during the opening session of their Congress on 6 June 2007.
• order an inquiry into the allegations  of harassment and intimidation of the human rights defenders of Papua for meeting the UN Special Representative on Human Rights Defenders in June 2006.
• take measures for ensuring independence and impartiality of judiciary including capacity building through technical cooperation programmes with the Office of the High Commission for Human Rights.
• (1) ensure full respect for human rights and fundamental freedoms of indigenous peoples in Papua, (2) institute a Commission of Inquiry to investigate linkages between the socalled protection money provided to TNI personnel by the Freeport and human rights violations on indigenous Papuans and take appropriate actions; (3) establish a “Permanent High Powered Committee” consisting of environmental scientists, representatives of the Papuans and representatives of the Komnas HAM to monitor the environmental effects on the populace and the nature; and (4) develop verifiable mechanisms to provide benefits of the Freeport revenues to indigenous Papuans.
• repeal of the Civil Registration Law of 2006 to give equal status and recognition and access to assistance from the State party to all the religions including “traditional indigenous religions” such as the Naurus in Maluku; Kepercayaan in Kalimantan, Papua and Java; Kaharingan in Kalimantan; Sunda Wiwitan in West Java; and Tolotang in South Sulawesi.
• withdraw the bans imposed on different religions and sects including the ones imposed by the provincial and regency governments.
• withdraw the Joint Ministerial Decree No. 1/2006
• take appropriate actions against the officials who remain mute witness or encourage criminal acts against religious minorities and implement the recommendations of the Komnas HAM.
• amend the Law No 39 of 1999 concerning Human Rights and Law No. 26 of 2000 concerning Human Rights Courts to (1) provide the powers of a court to the National Human Rights Commission, Komnas HAM among others for (a) summoning and enforcing the attendance of witnesses and examining them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed; and (2) empower the Komnas to file cases directly and independently before the judiciary.
• establish a National Commission on Indigenous Peoples in conformity with the Paris Principles on National Human Rights Institutions.
• develop national anti-discrimination law.