Changes to Law No. 39 Year 1999 on Human Rights happened when communities faced structural issues. In the process, there were concerns about the diminishing National Human Rights Commission authority, the blurring boundary of rights, and the weakening protection against vulnerable groups and human rights defenders.

The discussion with regards to draft human rights law did not simply talked about how citizens’ rights were written in the articles of the law. The more fundamental issues were who had the authority to ensure that the rights were respected, how alleged violations were examined, and how far could the State use its power to limit citizens’ rights. Those questions were raised during the Lawyer Forum that involved speaker Erna Dyah Kusumawati, academis from Sebelas Maret University at Anawim Hall Yayasan Yaphi on Friday (28/8). The Forum shared accompaniment experiences and new development with regards to the discussion on draft human rights law.

For those accompanying the community, changes in human rights regulation had direct consequences. YAPHI, for example, dealt with women and children cases, environmental conflicts, investment issues, poor communities, and victims of human rights violation. They accompanied not only individual cases. State policies were often parts of the problems people faced.

That position suggested that the discussion on draft human rights law could not be separated from the question about authority. The State was the holder of power/authority and the party with the obligation to respect, protect, and ensure human rights fulfilment. When the State authority was broadened, the oversight mechanism had to be strengthened. The issue was that the oversight mechanism was potentially weakened.


National Human Rights Commission and the issue of Independence

One major concern in the forum related to the changes to the authority of National Human Rights Commission. Erna saw development in a number of draft human rights law on the investigative power. If such power was erased, the fundamental question was who would do the investigation when there were suspicions of human rights violation by security officials or State institutions. The National Human Rights Commission had a different position than law enforcement agencies. The Commission was necessary because the violations happened within the authority structure itself.

The police, the military, the government, and other State institutions could be subjects of oversight. For that reason, the oversight institution had to maintain an institutional distance from the institutions being the targets of oversight. When the power of investigation was concentrated on law enforcement agencies, then the issue of independence was unavoidable.

The simple question was: how could an institution investigate independently suspicion of violations that involved the authority, that concern became even more relevant because changes to the human rights law happened at the same time as updates on civil and criminal codes. Changes in authority in one law would influence other laws.

For communities who became victims, the issue was not which institution(s) had the authority. What they needed was assurance that their complaints could be independently verified.

When the Government Assessed the Institution Performing Oversight

The issue about independence was also featured in the mechanism for human rights assessment. Erna explained that the human rights-based assessment of State institutions had important functions. The assessment allowed the public to know how far an institution performed its obligation to respect human rights. The mechanism was not designed to be instruments for punishment. The result of assessment should be the basis for improvement.

Institutions with poor rating had to overhauled. The recommendation could be monitored to see improvement. The problem appeared when the assessment function shifted from independent institution to the government. The government had an interest as the State administrator. When the government acted simultaneously as the institution to set up the indicators, to make assessment, and to determine results, the room for independence became narrower.

In the context of human rights, the issue was not simply an administrative issue. Independent assessment was necessary to ensure that the State did not become the only party to determine whether it had fulfilled its human rights obligation.

Non-binding Recommendation still Had the Power

The National Human Rights Commission did not have the same authority as the court who could make hand down a criminal sentence. Many outputs of National Human Rights Commission were in the form of recommendations. Yet, Erna argued that recommendations did not mean that they did not have any power. When a State institution received open recommendation(s), the public were able to know that that institution had issues with human rights that needed to be addressed.

Public pressure was part of accountability mechanism. In international human rights system, national human rights organisations had similar functions. They could offer independent perspectives on human rights condition in their country. For that reason, weakening recommendation or eroding the independence of oversight institutions could eliminate one channel for State accountability.

The State and Limitation of Rights

The Forum also discussed the broader issue – how far could the State limit the rights of its citizens. Erna explained that human rights law allowed for limiting rights on certain conditions. Yet, that act of limiting rights could not be exercised without any limit. A limitation had to have legal framework and legitimate objective. The act had to be proportional and necessary.

The concept was important when the State used terms like national security, public interests, morality, public health, or emergency situation. Those terms could have broad meanings.

Without clear definition and limitation, national security reason could be used to justify a number of restrictions that had no direct relations to threats against the State. The same thing also applied with regards to emergency situation. The latter should reflect clear condition, legal basis, timeframe, and oversight mechanism. There should be no room for the government to use emergency situation as reason to permanently limit people’s rights.

In testing the policy, the proportionality principle was critical. The State had to answer whether a particular action was truly necessary, whether there were other softer ways, and whether limitation fit with the objective being pursued.

National Security and Groups Deemed Different

The issue became much more sensitive when terms like national security was used to target certain groups. The discussed policies that connected LGBT with non-military threats to national security. We had to question the use of such term because national security was a concept with significant consequences for people’s rights. If identity or presence of a group could be treated as national security threat, then the State had bigger room to set limitation. This was where legal review was critical. What was the (legal) base to determine that a group pose threats? Who determined it? Were the threats real and measured? Was there mechanism for affected group(s) to file a lawsuit against such decision?

That question was not only relevant for LGBT groups. Each community group could be in similar situation if the term national security was used without any limit.

Morality Should Not Be the Only State Norm

The discussion then shifted to the relation between morality, religion, culture, and law. Erna reminded that communities might have different ideas about morality. Values deemed right by one community might not automatically become the gold standard for all citizens. The country had diverse communities. For that reason, when morality was used as reason to limit human rights, the State had to give standard of measurement that could be tested legally. It was not enough to say that an action was against morality. The issue became critical when differences in identity were used to determine who had the rights to get public services.

Rights to health, education, civil registration, employment, and other State services did not need to be based on a person’s or a citizen’s match to the morality of certain groups.

Discrimination and the Absence of Protection

The statement on discrimination in the draft human rights law was one issue deemed strategic by the. Erna focused on the statement that protected citizens from different treatment based on religion, faith, ethnicity, race, skin colour, language, origin, social class and economy, sex, political belief, disability, marriage status, health condition, and othet grounds.

The Forum questioned whether age and sexual orientation had to be more explicitly stated. The issue was not simply about adding the terms. The articulation of discrimination determined whether a person had strong legal base when that person experienced different treatment in public services. Examples could be found in health services.

If someone could not get health services because of certain conditions, identity, or reasons without valid legal basis, the State had to have mechanism to ensure that such action could be prosecuted for discrimination. For that reason, discrimination norms had to be designed carefully so that they did not create space used to justify different treatment.

When Individuals and State Were Mixed

Erna juga mengingatkan adanya persoalan konseptual dalam pembahasan HAM: pencampuran antara pelanggaran oleh individu, tindak pidana, aktivitas korporasi, dan pelanggaran HAM yang menjadi tanggung jawab negara. Tidak setiap tindak pidana otomatis merupakan pelanggaran HAM dalam pengertian yang sama. Negara memiliki kewajiban untuk mencegah, mengatur, dan menindak tindakan individu maupun korporasi yang merugikan masyarakat. Ketika negara gagal menjalankan kewajiban tersebut, persoalan HAM dapat muncul. Pembedaan itu penting agar hukum tidak memberikan beban pertanggungjawaban secara serampangan.

In the context of corporations, business activities could have impacts on community rights. The State had to regulate so that corporations did not destroy community living spaces, health, environment, and economic rights. Yet, the accountability framework had to be clear.

The same applied to community organisations. The Forum questioned whether unincorporated community groups could be categorised as corporation in that stipulation. If the definition was too broad, community organisations such as Youth Organisations (Karang Taruna), Neighbourhood Unit (RT), or Family Planning Group (PKK) could suffer legal consequences they never thought.

Human Rights Defenders Facing Threats of Rubber Clauses

The volunteer position was another point of attention. Those accompanying the community often found themselves in the middles of conflicts between communities and law enforcement agencies or certain groups with economic interests. In such situation, the presence of people accompanying the communities was often labelled as the trigger to conflict when communities reacted to the issues they faced. Such risks could be prevented through clear legal articulation. Legal counsels, case documentation, advocacy, submission of criticism, and defence of victims were parts of the civil spaces that had to be protected. If such activities could easily be categorised as acts that disturb security or order, the space for human rights defenders became so narrow. Such concern was increasingly evident when the definition of security was very broad.

Public Participation Not Formality

The process to change human rights law could not be separated from public participation. Erna questioned how far communities were truly involved in preparing the regulations. Public participation did not stop when the communities were invited to attend a forum.

What needed to be addressed was who were invited, who represented groups that would be affected, what information was given, when was information given, and whether community inputs were truly integrated into policy formulation. The principle of meaningful participation required a process that allowed communities to understand the issue and influenced decision. The principle was even more critical in policies that had impacts on indigenous communities and community living spaces. The presence of community leaders in a meeting did not automatically mean that all community members had agreed to the policy. Agreement had to be given based on sufficient information without pressures. This was essentially why the principle of Free, Prior and Informed Consent became relevant.

When Regulations Overlapped

Participants of the forum saw that they had to read the draft human rights law in conjunction with other regulations. The Civil Code and the Criminal Code, Agrarian law, law on people with disability, regulations on indigenous communities, digital regulations, and other sector regulations could not proceed with conflicting human rights construction. For organisations accompanying communities, the issue was real. One case might involve land, environment, criminalisation, health, the rights of vulnerable people, and simultaneous actions by law enforcement. If each law had different definition and mechanism without synergy, victims would have to deal with more complex legal system. For that reason, changes in draft human rights law had to be treated as part of legal reform more broadly.

Restorative Justice Had to Victim-Centred

The human rights issue was also related to criminal law reform. One participant, Dorkas offered her criticism with regards to the understanding of restorative justice which ended up in mediation and signing of settlement. Restorative justice had to prioritise victims’ rehabilitation and accountability for perpetrators.

The question was not simply about how long the perpetrator had to be punished, but what would victims get at the end of the legal process. In cases of violence against women and children, victims’ needs be longer-term than the duration of the legal process. Psychological, social, and economic recovery, education, and victims’ safety had to be parts of the system. For that reason, criminal law reform had to be ensured so as not to sacrifice victims’ interests in pursuit of success indicator like how many cases were resolved.

Confiscation of Assets and Rights of People Who Were Not at Fault

A similar issue arose during discussion on asset forfeiture. The Forum reminded that eradication of corruption and serious crimes necessitated effective asset forfeiture. Yet, the pursuit for effectiveness should not take away the rights of people involved in the crimes.

If someone was suspected of committing acts of corruption, assets obtained legally by the person’s partner or children had to be separated from assets accumulated from crimes. The State had to have clear verification mechanism about the origin of the assets.

Protection of a third party was critical because the State action(s) could have impacts on the family not involved in the crime(s).

Use International Human Rights Mechanism

When national mechanism faced challenges, civil society had space through international human rights mechanism. Indonesia had the obligation to report implementation of human rights instruments it verified. Civil society organisations could prepare alternative reports to provide different picture than the one described in government report. For accompanying organisations, that mechanism could be part of advocacy strategy.

Documentation was utmost important. Victims’ cases, chronology, decisions by State institutions, government policies, and impacts on communities had to be prepared systematically. With strong documentation, local issues could be integrated into the framework of Indonesia’s human rights obligation at the international level.

Choosing Critical Node

The Forum did not see that all issues in draft human rights law had to be criticised simultaneously. Dorkas proposed that civil society organisations chose most strategic issues with wide implications. Discrimination issue was one such node that they could work together. Protection of vulnerable groups, access to health, rights of people with disability, health condition, and groups experiencing different treatment had to have the necessary attention in the new norms.

Another issue was the independence of the National Human Rights Commission and continuity of the investigative power. The two issues were closely related. Good human rights norms would not be sufficient if the institution tasked to give an oversight of State actions did not have enough authority and independence.

The discussion on draft human rights law had to be seen as a fight on the design of power: How extensive was the authority given to the State, what limits had to be articulated, and who ensured that the limits were not violated.

For lawyers and organisations accompanying communities, the question determined the future of the work defending the community. Communities needed law that not only stated that they had rights, but also that provided the pathway when the rights were violated. They needed institutions that could give oversight to the State when the State was the party committing the violation. They needed a rehabilitation mechanism when becoming victims and protection when voicing their interests.

Draft human rights law would have substantive meaning when all those needs were articulated in norms, institutional authority, oversight mechanism, and rehabilitation procedure that worked. Otherwise, changes in law risked creating a paradox: the law was entitled human rights, yet it provided little room for communities to have oversight over the government. (Ast)