CERD Committee: Race and discrimination in Indonesia
The United Nations Committee on the Elimination of
Racial Discrimination considered the initial to third periodic reports of
Indonesia (CERD/C/IDN/3) submitted in one document at its 1831st and 1832nd meetings
(CERD/C/SR.1831 and 1832) held on 8 and 9 August 2007.
The report of Indonesia was far from satisfactory.
Asian Indigenous and Tribal Peoples Network submitted a shadow report titled
“Indonesia: Piecemeal approaches to systemic and institutionalised discrimination”. AITPN made a number of recommendations for consideration by
the CERD Committee.
The Concluding Observations and Recommendations of
the CERD Committee are given below:
C. Concerns
and Recommendations
14. The Committee notes that the Convention is not
self-executing in Indonesian law. While appreciating the efforts undertaken to
harmonize national legislation with the Convention, and noting that a draft law
on the elimination of racial and ethnic discrimination is under consideration,
the Committee regrets that it has not received sufficient information on the
extent to which the Convention has been incorporated into domestic law. (art.
2)
The Committee encourages the State party to
continue the review of its laws and regulations in order to ensure their full
compliance with the Convention. It also encourages the State party to adopt a
comprehensive law on the elimination of racial discrimination, taking into
consideration all elements of the definition of racial discrimination provided
in article 1 of the Convention, and guaranteeing the right everyone not to be
discriminated against in the enjoyment of all rights enumerated in article 5 of
the Convention. The Committee also wishes to receive more detailed information
on measures adopted to ensure that regional laws and regulations also comply
with the Convention.
15. The Committee notes that the State party
recognizes the existence of indigenous peoples on its territory, while using
several terms to designate them. It is concerned, however, that under domestic
law, these peoples are recognized "as long as they remain in
existence", without appropriate safeguards guaranteeing respect for the
fundamental principle of self-identification in the determination of indigenous
peoples. (art. 2 and 5)
The Committee draws the attention of the State
party to its General recommendation 8 (1990), and recommends the State party to
respect the way in which indigenous peoples perceive and define themselves. It
encourages the State party to take into consideration the definitions of
indigenous and tribal peoples as set out in I.L.O. Convention No. 169 of 1989
on Indigenous and Tribal Peoples, and to envisage ratification of this
instrument.
16. The Committee welcomes the acknowledgement made
by the State party that it is a multi-ethnic, multi-cultural, multi-religious,
and multi-lingual country, as well as its commitment to achieve "unity in
diversity" and respect of human rights for all on an equal basis. The
Committee is concerned, however, that in practice, the rights of indigenous
peoples have been compromised, due to the interpretations adopted by the State
party of national interest, modernization and economic and social development.
(arts. 2 and 5)
The State party should amend its domestic laws, regulations
and practices to ensure that the concepts of national interest, modernization
and economic and social development are defined in a participatory way,
encompass world views and interests of all groups living on its territory, and
are not used as a justification to override the rights of indigenous peoples,
in accordance with the Committee's General Recommendation 23 (1997) on
indigenous peoples.
The State party should recognize and respect
indigenous culture, history, language and way of life as an enrichment of the
State's cultural identity and provide indigenous peoples with conditions
allowing for a sustainable economic and social development compatible with
their cultural characteristics.
17. The Committee notes with concern the plan to
establish oil palm plantations over some 850 kilometers along the
Indonesia-Malaysia border in Kalimantan as part of the Kalimantan Border Oil
Palm Mega-project, and the threat this constitutes for the rights of indigenous
peoples to own their lands and enjoy their culture. It notes with deep concern
reports according to which a high number of conflicts arise each year
throughout Indonesia between local communities and palm oil companies. The
Committee is concerned that references to the rights and interests of traditional
communities contained in domestic laws and regulations are not sufficient to
guarantee their rights effectively. (arts. 2 and 5)
The Committee, while noting
that land, water and natural resources shall be controlled by the State party
and exploited for the greatest benefit of the people under Indonesian law,
recalls that such a principle must be exercised consistently with the rights of
indigenous peoples. The State party should review its laws, in particular Law No.
18 of 2004 on Plantations, as well as the way they are interpreted and
implemented in practice, to ensure that they respect the rights of indigenous
peoples to possess, develop, control and use their communal lands. While noting
that the Kalimantan Border Oil Palm Mega-project is being subjected to further
studies, the Committee recommends that the State party secure the possession
and ownership rights of local communities before proceeding further with this
Plan. The State party should also ensure that meaningful consultations are undertaken
with the concerned communities, with a view to obtaining their consent and
participation in the Plan.
18. The Committee notes with concern that, although
it has been abolished, the transmigration programme has longstanding effects, as exemplified by the conflict that took place
between the Dayak and the Madura ethnic groups in Palangkaraya, Central Kalimantan.
The Committee also notes with concern the challenges faced by the State party
due to the increased number of internally displaced persons, resulting not only
from natural disasters but also from conflicts, and the cultural
misunderstandings that have arisen between communities. (arts. 2 and 5)
The Committee strongly recommends that the State
party increase its efforts to prevent the resurgence of ethnic conflicts on its
territory. It should assess the adverse impact of the transmigration programme, in particular on the rights of local
communities, and promote mutual understanding between communities, as well as
mutual knowledge and respect for their histories, traditions and languages. It
should ensure that violent acts are duly investigated, prosecuted and
sentenced. The Committee also encourages the State party to prepare a set of
guiding principles for internally displaced persons with the aim of preventing
racial discrimination, as envisaged by the State party. It suggests in this
regard that the State party take into consideration the Guiding Principles on
Internal Displacement (E/CN.4/1998/53/Add.2).
19. The Committee notes the information provided by
the State party that non-citizens have limited civil and political rights, but
that these limitations are applied in accordance with the Convention and the
Committee's General Recommendation 30 (2004) on discrimination against
non-citizens. (arts. 2 and 5)
The Committee recommends that the State party
include more detailed information on the rights of non-citizens in its next
periodic report. The Committee encourages the State party to envisage
ratification of the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families.
20. The Committee notes with satisfaction that
Presidential Instruction No. 56 of 1996 abolished SBKRI (Proof of Indonesian
Citizenship) for citizens of Chinese origin and other citizens of foreign
descent. It remains concerned, however, at the insufficient level of
implementation of that Instruction. In particular, it notes with concern that,
as is acknowledged by the State party, banks continue to require SBKRI despite
Presidential Instruction No. 26 of 1998 specifically prohibiting them to do so.
(arts. 2 and 5)
The Committee recommends that the State party
strengthen its efforts to ensure the practical implementation of the abolition
of SBKRI in all regions, and effectively prohibit its use either by public
institutions or private entities such as banks. The State party should adopt programmes to raise awareness about the prohibition of
SBKRI and assist individuals who have been required to produce SBKRI in
obtaining remedy.
21. The Committee, while noting the statement made
by the delegation that there are no "recognized" or
"non-recognized" religions in Indonesia, expresses concern at the
distinction made between Islam, Protestantism, Catholicism, Hinduism, Buddhism
and Confucianism, which are often referred to in legislation, and other
religions and beliefs.
The Committee is concerned at the adverse impact of
such a distinction on the rights to freedom of thought, conscience and religion
of persons belonging to ethnic groups and indigenous peoples. It notes with
particular concern that under Law No. 23 of 2006 on Civic administration,
individuals are to mention their faiths on legal documents such as identity
cards and birth certificates, and that those wishing either to leave the column
blank or to register under one of the "non-recognized" religions,
reportedly face discrimination and harassment. The Committee also notes with
concern that men and women of different religions face great difficulties in
officially registering their marriages, and that their children are not
provided with birth certificates, as acknowledged by the State party. (arts. 2
and 5)
The Committee recommends that State party treat
equally all religions and beliefs and ensure the enjoyment of freedom of
thought, conscience and religion for ethnic minorities and indigenous peoples.
Noting that the State party is considering removing the mention of religion on
identification cards in order to be in line with the objectives of the
Convention, the Committee strongly recommends it to do so in a timely manner,
and to extend such a policy to all legal documents. The Committee also
recommends the adoption of legislation allowing individuals to contract a civil
marriage if they so wish.
22. The Committee welcomes efforts made towards the
decentralization of power and consolidation of regional autonomy. It regrets,
however, that it has not received sufficient information on the status of
implementation of the Papua Special Autonomy Law No. 21 of 2001, and expresses
concern about information according to which Papuans continue to experience
great poverty. (arts. 2 and 5)
The Committee recommends that the State party
provide information on the implementation of the Papua Special Autonomy Law No.
21 of 2001, as well as on measures adopted to ensure the enjoyment by Papuans
of their human rights without any discrimination.
23. The Committee notes that no
discrimination-related cases have been brought before the courts of the State
party. It notes with concern the view expressed in the report of the State
party that there is no racial discrimination in Indonesia, direct or indirect,
since domestic laws guarantee the elimination of racial discrimination. The
Committee notes that this statement is in contradiction with other parts of the
report, which acknowledge difficulties in the implementation of the Convention,
as well as efforts towards the harmonization of laws with the Convention. (articles 4 and 6)
The Committee draws the attention of the State
party to its General recommendation 31 (2005) on the prevention of racial
discrimination in the administration and functioning of the criminal justice
system, and recalls that the absence or small number of complaints,
prosecutions and convictions relating to acts of racial discrimination should
not be viewed as necessarily positive. The State party should inquire whether
this situation is the result of inadequate information provided to victims
concerning their rights, their fear of social censure or reprisals, their fear
of the cost and complexity of the judicial process, a lack of trust in the
police and judicial authorities, or the insufficient level of awareness by the
authorities of offences involving racism. The State party should take, in
particular on the basis of such review, all necessary measures to ensure that
victims of racial discrimination have access to an effective remedy.
24. The Committee notes with concern that the
violations of human rights which were committed during the riots of May 1998
still remain unpunished. It is concerned at reports according to which
Indonesians of Chinese descent were specifically targeted, and at the
contradictory information the State party has provided in its report and its
written replies in this respect. The Committee is further concerned at the
conclusion reached by Komnas-HAM that gross
violations on human rights had been committed. It is further concerned that Komnas-HAM's recommendation that an ad hoc human rights
tribunal be established has not been implemented yet, following the Attorney
General's position that the investigations remained incomplete. (arts. 4 and 6)
The Committee strongly recommends that the State
party take all measures to ensure that acts of racial discrimination committed
during the riots of May 1998 are duly prosecuted and punished.
25. The Committee notes with concern that Komnas-HAM has encountered difficulties in the discharge of
its mandate, due in particular to the refusal made by the military to comply
with its requests to submit evidence. It also notes that Law No. 39 of 1999
does not contain any provision ensuring legal immunity for its members, and
that the status and mandate of the secretariat of the Commission are currently
set forth in a Presidential Decree, which jeopardizes its independence and
autonomy.
The Committee recommends that the State party
reinforce the independence of Komnas-HAM, in line
with the Principles relating to the status of national institutions for the
promotion and protection of human rights (the Paris Principles), and guarantee
the legislative immunity of its members and staff in the exercise of their
duties. The State party should also strengthen the Commission's mandate, in
particular its monitoring functions and investigation powers, and ensure its
participation in the follow-up and implementation of the present concluding
observations.
26. The Committee recommends that the State party
take into account the relevant provisions of the Durban Declaration and Programme of Action when implementing the Convention in its
domestic legal order, particularly as regards articles 2 to 7 of the
Convention. The Committee also urges that the State party include in its next
periodic report information on action plans and other measures taken to
implement the Durban Declaration and Programme of
Action at the national level.
27. The Committee recommends that the State party
ratify the amendment to article 8, paragraph 6, of the Convention, adopted on
15 January 1992 at the fourteenth meeting of States parties to the Convention
and endorsed by the General Assembly in resolution 47/111. In this connection,
the Committee cites General Assembly resolution 57/194 of 18 December 2002, in
which the Assembly strongly urged States parties to accelerate their domestic
ratification procedures with regard to the amendment and to notify the
Secretary-General expeditiously in writing of their agreement to the amendment.
A similar appeal was made by the Assembly in resolution 58/160 of 22 December
2003.
28. The Committee notes that the State party has
not made the optional declaration provided for in article 14 of the Convention
and invites it to consider doing so.
29. The Committee recommends that the State party's
reports be made readily available to the public at the time of their submission,
and that the observations of the Committee with respect to these reports be
similarly publicized in Indonesian language.
30. The Committee recommends that the State party
consult widely with organizations of civil society working in the area of combating
racial discrimination, in connection with the preparation of the next periodic
report.
31. The State party should, within one year,
provide information on the way it has followed up on the Committee's
recommendations contained in paragraphs 17, 20 and 25 above, pursuant to
paragraph 1 of rule 65 of the Committee's rules of procedure.
32. The Committee invites the State party to submit
its core document in accordance with the requirements of the Common Core
Document in the Harmonized Guidelines on Reporting (HRI/GEN/2/Rev.4).
33. The Committee recommends that the State party
submit its fourth, fifth and sixth periodic reports in a single document, due
on 25 July 2010, taking into account the guidelines for the CERD-specific
document, as adopted by the Committee at its 71st session, and that the report
be an update document and address all points raised in the present concluding
observations.