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Putting rights covenants into action
Ridarson Galingging, Jakarta
In September 2005 the Indonesian government ratified the International Covenant on Civil and Political Rights (ICCPR), perhaps the most important human rights treaty in the world.
The ICCPR protects civil and political rights, the right to life, freedom from arbitrary detention, freedom of expression, and religious freedom, among many other rights.
For the many Indonesians whose ICCPR rights have been violated, the practical legal effects of the ratification have been limited, mainly because Indonesians have not received the domestic judicial remedies the ICCPR grants them.
And violations of human rights guaranteed by the ICCPR continue in Indonesia, even by government officials at the cabinet level.
The recent ultimatum issued by Religious Affairs Minister Maftuh Basyuni forcing the Indonesian Ahmadiyah Congregation (JAI) either to adopt the mainstream interpretation of Islamic teaching or declare themselves as a new religion is a direct violation of the right of religious freedom protected under the ICCPR.
Either the current government is unaware that such actions violate human rights, or they do not care that a covenant so freshly ratified is being so quickly ignored.
Article 18 of the ICCPR, which has become Indonesian Law based on Article 15 (2) of the 2000 Law on International Treaties, compels the government to allow all religious communities, including minority ones, to build their own houses of worship without any restrictions.
The new joint ministerial decree on the establishment of houses of worship issued by Home Affairs Minister Moh. Ma’ruf and Religious Minister Maftuh Basyuni clearly violates the human rights of Indonesians. It also violates the Indonesian Constitution.
The violent attack on the building that housed the Playboy office and the unwillingness of the police to prevent and stop the violence shows that the ICCPR norms concerning freedom of expression are not being enforced.
If the government wants to find a basis in Indonesian law to take legal action against Playboy, they can do so only if the magazine violates articles in the Indonesian Criminal Code concerning matters such as pornography or defamation. Playboy Indonesia’s first edition did not violate any of these. But standing by while a violent mob enforces its own standards is a failure to uphold the basic rights of citizens, including the right to have different tastes about things like magazines and entertainment.
Article 2(3), parts (a), (b), and (c) of the ICCPR oblige Indonesia to provide effective remedies for persons whose ICCPR rights are violated. It specifies that these remedies should be determined by a competent government body, ideally the judiciary, and directs that the remedies must be enforced.
At the international level there exists the Human Rights Committee, the ICCPR’s monitoring body. But at the domestic level there is no equivalent body.
Ratification is meaningless and cynical if no steps are taken to ensure implementation. It is time for the Indonesian government to start thinking about providing an appropriate judicial and administrative mechanism for addressing claims of ICCPR violations under domestic law.
Administrative mechanisms are urgently needed to investigate allegations of violations promptly, thoroughly, and effectively through independent and impartial bodies.
The existing Indonesian ad hoc Human Rights Court, for example, cannot function as that forum, because it has a limited mandate. It adjudicates only genocide and crimes against humanity. Amendments would be needed to give the ad hoc Human Rights Court the power to rule on ICCPR violations.
The Constitutional Court (MK) is a potential forum in which to address ICCPR violations. The MK could review legislation that does not conform to ICCPR norms and values, but it needs to be specifically empowered to do so.
For now, the MK can only review legislation that violates the Constitution. Can ICCPR rights now be interpreted as part of all Indonesians’ Constitutional rights? The MK should weigh in on this matter immediately so that ICCPR violations can be adjudicated, giving direct practical rights benefits to Indonesians who are already legally entitled to them.
One thing is clear as a consequence of the ratification. The government must submit periodic reports to the HRC on its progress on incorporating the ICCPR into the domestic legal or constitutional system. Also, Indonesia must submit an initial report within a year of enacting the ICCPR.
In practical terms, this means that the Indonesian government must specifically appoint a governmental body to make sure that all the ICCPR rights that have been ratified are incorporated into domestic law, and also to monitor whether the government consistently complies with its commitments.
The Indonesian Justice Department and the Indonesian Human Rights Commission (Komnasham) can coordinate the effort to incorporate the ICCPR rights into existing Indonesian law and future legislation. This is a large and important task.
The role of judges is also crucial. The government must allocate sufficient funding to promote the ICCPR within the judiciary. Judges need to be familiarized with the ICCPR and be equipped with a deep knowledge and understanding of the decisions and jurisprudence of the world’s leading judicial bodies such as the European Court of Human Rights, the Inter-American Court of Human Rights and the Human Rights Committee.
Since the Parliament has the power to initiate legislation changes, and many laws and regulations need to be adjusted to the ICCPR, members of Parliament who will do this job must also be made aware of the need for a thorough understanding of the ICCPR. There must be programs help members of the DPR absorb the values and norms of the ICCPR.
The country’s law schools are producing our future judges, prosecutors and lawyers. For this reason, our universities must also be involved in promoting the ICCPR. The ICCPR should be taught at our law schools.
NGOs also have a pivotal role to play in advancing this agenda. It is their duty to educate the government, the press, and the public about the ICCPR – including making as much noise as it takes to pressure all governmental bodies (the Judiciary, the Parliament and Komnasham) to move forward quickly to meet their commitments.
Finally, to match its rhetoric with action, the Indonesian government should ratify the Rome Statute of the International Criminal Court, which criminalizes war crimes, crimes against humanity, and genocide.
The writer (email@example.com) is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at Northwestern University School of Law in Chicago.