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INDONESIA and the RULE of LAW Indonesia and the Rule of Law Twenty Years of ‘New Order’ Government Indonesia and the Rule of Law Twenty Years of ‘New Order’ Government A study prepared by the INTERNATIONAL COMMISSION OF JURISTS and the NETHERLANDS INSTITUTE OF HUMAN RIGHTS (SIM) Edited by Hans Thoolen International Commission of Jurists (ICJ) Geneva, Switzerland Mil] Frances Pinter (Publishers), London © International Commission of Jurists, Geneva, 1987 First published in Great Britain in 1987 by Frances Pinter (Publishers) Limited 25 Floral Street, London WC2E 9DS All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted by any other means without the prior written permission of the copyright holder. Please direct all enquiries to the publishers. British Library Cataloguing in Publication Data Indonesia and the rule of law: twenty years of ‘New Order’ government: a study prepared for the International Commission of Jurists. 1. Civil rights—Indonesia I. Thoolen, Hans II. International Commission of Jurists 345.9802'85 [LAW] ISBN 0-86187-919-8 Typeset by Joshua Associates Limited, Oxford Printed by Biddles of Guildford Limited Contents Preface by Niall MacDermot xi 1 INTRODUCTION 1 1.1. The country and its history 1 1.2. Second World War and independence 4 1.3. Post independence 6 1.4. Economic background 8 — General 8 — Informal sector 11 — Land reform 13 1.5. East Timor 15 1.6. Cultural diversity 21 — Irian Jaya (West Papua) 22 — Transmigration 23 — Aceh 27 1.7. Conclusions and recommendations 28 Notes 30 2 CONSTITUTIONAL LAW AND LEGAL FRAMEWORK 32 2.1. IntroductionIntroduction 32 2.2. TheThe context:context: adatadat lawlaw 32 2.3. PancasilaPancasila andand thethe 19451945 constitutionconstitution 3535 2.3.1. Three constitutions between 1945-59 3535 2.3.2. Pancasila, a state ideology 3636 2.3.3. The 1945 constitution 3939 2.4. TheThe legislaturelegislature 4141 2.4.1. People’s Consultative Assembly (MPR) 4141 2.4.2. House of Representatives (DPR) 4242 2.4.3. Elections, GOLKAR and political parties 44 — 1955 elections 4444 —- GOLKAR 4646 — 1971 elections 4646 — 1977 elections 4848 — 1982 elections 5050 vi CONTENTS 2.5. The executive 53 2.5.1. The President 53 2.5.2. State of emergency 54 2.6. The formal legal system 55 2.6.1. Sources of law 55 2.6.2. Types of law 56 2.6.3. The elucidation 57 2.6.4. Law reform 58 2.7. Judiciary 59 2.7.1. The Formal Structure 59 — General courts 59 — Military courts 59 — Religious courts 60 — Administrative courts 60 — Other Means of settling disputes 60 2.7.2. Weaknesses and possible remedies 61 — Independence 61 — Corruption 61 — Expediency 62 — Possible remedies 62 2.8. The legal profession 63 2.8.1. Lawyers 63 2.8.2. Legal aid 64 2.9. Law enforcement 66 2.9.1. Police 66 2.9.2. Prosecutors 66 2.9.3. KOPKAMTIB: a unique enforcement agency 67 — Operations of KOPKAMTIB 68 — The legal basis for KOPKAMTIB 69 — Assessing KOPKAMTIB 70 2.10. International human rights obligations 72 2.11. Conclusions and recommendations 74 Notes 77 3 CIVIL AND POLITICAL RIGHTS 83 3.1. Freedom of Speech and Expression 83 3.1.1. Background 83 3.1.2. Legal Framework 85 — Anti-subversion law 85 — The ‘HAATZAAI’ articles 85 — The Lese Majesty Articles 86 3.1.3. Recent history of dissent ' 86 — 1974 Malari affair 86 CONTENTS vii — 1977 Sawito Kartowibowo 89 — The white book of 1978 Student’s Struggle 90 — Doddy C. Suriadiredja 90 — 1981 Soenardi 91 — 1985 Dharsono and Tanjung Priok riots 92 3.1.4. Bans and censorship of films and books 94 3.1.5. Other means of dissent 95 3.2. Freedom of the press 96 3.2.1. The context 96 — The Netherlands East-Indies 96 — Japanese occupation 96 — 1945-59 96 — Guided democracy 97 — The New Order 98 3.2.2. The legal status of the press 98 — The Press Law 98 — Article 13 99 — Article 19 100 — Article 15 101 — Article 15a 101 — Amendments 101 3.2.3. Present situation regarding press freedom 102 — Licences 102 — Restrictions on size and advertising 102 — Government as publisher 103 — Bans 104 — Instructions not to publish news items 108 — New Order perceptions of the press 111 — The position of journalists 112 — Foreign press 114 3.3. Freedom of association and rights of workers 116 3.3.1. The context 116 3.3.2. Civil servants 116 3.3.3. Labour and peasant’s Associations 119 — Organizational developments and the ILO 119 — Context of Indonesian labour law 124 — Right to organize 126 — Right to strike 129 — Dismissal and other conditions 132 — Forced labour 134 3.3.4. Youth and Students Organizations 137 3.4. Freedom of belief and religion 141 3.4.1. The context 141 viii CONTENTS 3.4.2. Islam 141 3.4.3. ‘Other’ religions 144 3.5. Freedom of movement and residence 146 3.5.1. The context 146 3.5.2. Freedom of movement of residents 146 3.5.3. Freedom of movement of foreigners 148 3.5.4. Transmigration 149 3.6. Freedom from racial discrimination 151 3.6.1. The context: Chinese in Indonesia 151 3.6.2. Status 151 3.6.3. Economic discrimination 153 3.6.4. Education and culture 154 3.7. Conclusions and recommendations 155 Notes 158 4 ASPECTS OF CRIMINAL JUSTICE 166 by Professor J. ’t Hart 4.1. Introduction 166 4.2. Preliminary investigation 168 4.2.1. Criminal law enforcement 168 4.2.2. Interrogation 170 4.2.3. Search and confiscation 172 4.3. Defence rights 174 4.3.1. Legal assistance 174 4.3.2. Time and facilities 177 4.3.3. Interpreter 179 4.4. Arrest and detention 179 4.4.1. Liberty and security 179 4.4.2. Right to be informed 180 4.4.3. Reasonable time 181 4.4.4. Habeas corpus 182 4.4.5. Compensation and rehabilitation 183 4.5. Trial and punishment 184 4.5.1. Conditions 184 4.5.2. Proceedings 185 4.5.3. Appeal and penalties 190 4.5.4. Independence of the judiciary 192 4.5.5. Prisons 194 4.6. Special provisions and extra legal actions 198 4.6.1. Special criminal laws 198 4.6.2. Law on internment and exile 200 4.6.3. Sowing hatred 201 4.6.4. Mixed jurisdiction 202 CONTENTS ix 4.6.5. Death squads 202202 4.7. Conclusions and recommendations 203203 Notes 204204 Preface In July 1979, the International Commission of Jurists (ICJ) approached the Indonesian government with a view to sending a mission to Indonesia. The purpose of the mission was to undertake an impartial study on human rights in Indonesia including economic, social and cultural rights as well as civil and political rights. The proposed members of the mission were: — Professor P. Kooijman, former Secretary of State for Foreign Affairs of the Netherlands and a distinguished international lawyer; — Mr. Rodney Lewis, then Secretary-General of the Australian Section of the ICJ and a well-known human rights lawyer; and — Mr. J.G.H. Thoolen, then Executive Secretary of the ICJ and former lecturer in Constitutional Law at Leyden State University. The decision to send a mission was based on the fact that Indonesia is a country of outstanding importance in the region which has had to grapple with serious economic and social problems. However, little is known of its legal system as only a fraction of the laws have been translated from the official Indonesian language. For the International Commission of Jurists, which is concerned with the legal protection of human rights, it was important to understand the process by which the New Order has been established and to evaluate the Indonesian legal system in terms of international human rights norms. The Indonesian government declined permission for the mission on this first occasion saying that this was not the right moment as the government was involved in important changes in its legal and administrative system. The government was approached again in September-October 1980, but the same reply was received. The ICJ prefers to report on countries after full discussions with the government, but will not refrain from reporting on a country simply because the government declines access. Accordingly, the ICJ decided to go ahead and undertake a study on ‘Indonesia and the Rule of Law’, describing, analysing and commenting on the state of human rights during the last two decades. As Executive Secretary of the ICJ Mr. Hans Thoolen was responsible for the preparation of this study. After he left our staff to become Director of the Netherlands Institute of Human Rights (SIM) he continued, with the Institute’s xii PREFACE agreement, to edit the study as well as being its main contributor. He was greatly assisted by the staff of the SIM Institute, which thereupon became co sponsors of the study While the study was being conducted, changes occurred in some of the laws and procedures and the need to revise the relevant chapters of the study imposed delays. A particular problem arose in preparing a comprehensive review of the system of criminal law as it relates to human rights issues. No up-to-date work on the criminal law exists in any language. The problem was finally resolved when Professor J. ’t Hart of the Netherlands, an expert in comparative penal law, kindly agreed to make a prolonged visit to Indonesia and to write the chapter after consultations with academic and practising lawyers in Indonesia. This chapter, which makes a unique contribution, has already been published in Indonesia in the official Indonesian language, Bahasa Indonesia, and already serves as an invaluable guide to the legal practitioner.