Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Abolition of Forced Labour Convention, 1957 (No. 105) - Indonesia (Ratification: 1999)

Article 1(a) of the Convention. Use of compulsory labour as a punishment for expressing views opposed to the established political, social or economic system. 1. Penal Code. In its previous comments, the Committee noted that, pursuant to sections 14 and 19 of the Criminal Code and sections 57(1) and 59(2) of the Prisons Regulations, sentences of imprisonment involve compulsory prison labour. The Committee also noted that sections 154 and 155 of the Criminal Code establish a penalty of imprisonment for up to seven years and four-and-a-half years, respectively, for a person who publicly gives expression to feelings of hostility, hatred or contempt against the Government (section 154) or who disseminates, openly demonstrates or puts up a writing containing such feelings, with the intent to give publicity to the contents or to enhance the publicity thereof (section 155). However, it noted that the Constitutional Court, in its ruling on Case No. 6/PUU-V/2007, found sections 154 and 155 of the Criminal Code to be contrary to the Constitution of 1945. The Committee further noted that, in ruling No. 013-022/PUU-IV/2006, the Constitutional Court found that it was inappropriate for Indonesia to maintain sections 134, 136bis and 137 of the Criminal Code (respecting deliberate insults against the President or the Vice-President), since they negate the principle of equality before the law, diminish freedom of expression and opinion, freedom of information and the principle of legal certainty. The Constitutional Court stated that the new draft text of the Criminal Code must not include similar provisions.

The Committee notes the Government’s statement that it is in the process of amending the Criminal Code, and that these amendments have been included as a priority in the National Legislation Programme 2010–14, to be addressed by the House of Representatives. The Government states that it will take the Committee’s comments into consideration during the formulation of this draft. The Committee therefore once again requests the Government to take into account the above rulings of the Constitutional Court, as well as the comments of the Committee, in the context of the elaboration of amendments to the Criminal Code, to ensure that no prison sentence entailing compulsory labour can be imposed on persons who express certain political views or opposition to the established political, social or economic system. It expresses the firm hope that the amendments to the Criminal Code will be elaborated and adopted in the near future, and requests the Government to provide a copy, once adopted.

2. Law No. 27 of 1999 on the Revision of the Criminal Code. In its earlier comments, the Committee noted that under section 107(a), (d) and (e) of Law No. 27 of 1999 on the Revision of the Criminal Code (in relation to crimes against state security), sentences of imprisonment may be imposed upon any person who disseminates or develops the teachings of “Communism/Marxism–Leninism” orally, in writing or through any media, or establishes an organization based on such teachings, or establishes relations with such an organization, with a view to replacing Pancasila as the State’s foundation. In this regard, the Government confirmed that any person who jeopardizes national stability may be punished with a sentence of imprisonment, which involves the obligation to work. The Committee expressed the hope that Law No. 27 of 1999 would be amended in the near future.

The Committee notes the Government’s statement that Law No. 27 of 1999 cannot be amended due to the mandate stated in Law No. I/MPR/2003, on the status of legislative provisions. Section 2 of Law No. I/MPR/2003 states that Decree No. XXV/MPRS/1966 (which relates to the dissolution of the Communist Party of Indonesia, the prohibition of the Indonesian Communist Party and the prohibition of activities to disseminate and develop a Communist/Marxist–Leninist ideology or doctrine) shall remain valid, and shall be enforced with fairness and respect for the law. In this regard, the Committee recalls that Article 1(a) of the Convention prohibits all recourse to forced or compulsory labour, including compulsory prison labour, as a means of political coercion or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It also points out that the protection conferred by the Convention includes certain activities aiming to bring about fundamental changes in state institutions, as long as such activities do not resort to or call for violent means to these ends. Recalling that it has been raising this issue for more than a decade, the Committee urges the Government to take the necessary measures to bring section 107(a), (d) and (e) of Law No. 27 of 1999 into conformity with the Convention, so that persons who peacefully express ideological opposition to the established political, social or economic system cannot be sentenced to a term of imprisonment which includes the obligation to work. It encourages the Government to pursue an examination of these provisions within the ongoing revision of the Criminal Code, and to provide information on measures taken in this regard, in its next report.

3. Law No. 9/1998 on freedom of expression in public. The Committee previously noted that Law No. 9/1998 on freedom of expression in public imposes certain restrictions on the expression of ideas in public during public gatherings, demonstrations, parades, etc., and that sections 15, 16 and 17 of the Law provide for the enforcement of those restrictions with penal sanctions “in accordance with the applicable legislation”. The Committee requested the Government to clarify the sanctions applicable in cases of non-compliance with sections 15, 16 and 17 of Law No. 9/1998.

The Committee notes the Government’s statement that Law No. 9/1998 is implemented in line with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Government states that, pursuant to section 17 of the Law, persons who violate section 16 (concerning the public expression of opinion in contravention of the applicable legislation) shall be punished in accordance with the criminal legislation in force, with an additional one third punishment. Moreover, the Committee notes the Government’s statement in its report submitted to the Human Rights Committee on 12 March 2012 that Law No. 9/1998 provides some limitations on expression, including that notification must be submitted to the police three days before certain activities (such as the expression of opinions in public or activities such as rallies or demonstrations), and that pursuant to section 15, the act of expressing public opinion can be disbanded if it fails to meet this requirement (CCPR/C/IDN/1, paragraph 68). The Committee requests the Government to provide information on the application in practice of sections 15, 16 and 17 of Law No. 9/1998, including the number and nature of offences, particularly relating to the cases where sentences of imprisonment have been imposed, in its next report.

The Committee is raising other points in a request addressed directly to the Government.