Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 1(a) of the Convention. Imposition of penalties involving 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 sections 154 and 155 of the Criminal Code establish a penalty of imprisonment (involving compulsory labour) 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). It also 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. Noting the Government’s statement that it was in the process of amending the Criminal Code, the Committee requested the Government to take into account the above rulings of the Constitutional Court, as well as the comments of the Committee, so as 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.

The Committee notes the Government’s indication that amendments to the Criminal Code are still ongoing. Moreover, the Committee takes due note of the Government’s statement that with the decision of the Constitutional Court, sections 154 and 155 of the Criminal Code do not have any binding legal force. Noting that the Government has been referring to amendments to the Criminal Code since 2005, the Committee urges the Government to take the necessary measures to ensure their adoption in the near future, taking into account the rulings of the Constitutional Court. It requests the Government to provide information on any progress made in this regard and to provide a copy of the amendments 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. It noted 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. Recalling 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, the Committee urged 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.

The Committee notes with regret that despite raising this issue since 2002, the Government has not taken any measures in this regard. The Government report reiterates that the citizens of Indonesia enjoy freedom of expression, but sanctions in the form of imprisonment shall be imposed only where such expression endangers the national stability. Moreover, compulsory work is not imposed on all prisoners. However, the Committee notes 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 reminds the Government that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence, but sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the expression of views or of opposition to the established political, social or economic system (General Survey on fundamental Conventions, 2012, paragraph 303). The Committee therefore 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, by clearly restricting the scope of these provisions to situations connected with the use of violence, or incitement to violence, or by repealing sanctions involving compulsory labour thereby ensuring that persons who peacefully express political or ideological views opposed 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 any progress made in this regard.

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”. It noted the Government’s statement 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. Moreover, the Committee noted 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.

The Committee notes the Government’s information in its report that sections 15, 16 and 17 of Law No. 9/1998 shall be enforced if protests and demonstrations are conducted against the rules and procedures indicated under sections 6 to 11 of this Law, in order to maintain public order. The Government indicates that so far, demonstrations are carried out in accordance with the procedures laid down under Law No. 9/1998. The Committee draws the Government’s attention to the fact that the range of activities which must be protected under Article 1(a) of the Convention, from punishment involving compulsory labour, comprises the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and which may also be affected by measures of political coercion (General Survey on fundamental Conventions, 2012, paragraph 302). The Committee therefore 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.

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