Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous comment

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, 136 bis 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 that the amendments to the Criminal Code were ongoing, the Committee urged the Government to take the necessary measures to ensure the adoption of the Criminal Code in the near future, taking into account the rulings of the Constitutional Court.

The Committee notes the Government’s information in its report that the draft Bill on the Criminal Code is still being discussed in the House of Representatives of the Republic of Indonesia. The Committee notes that according to the draft Bill on Criminal Code, acts of publicly attacking the honour or dignity of the President, or Vice-President and broadcasting or disseminating any pictures or writings in this regard (section 218); and insulting, degrading or damaging the honour or image of the government or state institutions (section 240), or national flag (section 234) or state symbol (section 236) are punishable with imprisonment ranging from one year and six months to four years. In this regard, the Committee notes the Government’s information that compulsory social work sanctions that may be carried out in hospitals, orphanages, elderly homes, schools or other social institutions, may be imposed: (i) for crimes punishable with imprisonment of less than five years; or (ii) where the judge imposes a maximum imprisonment of six months or a maximum fine of category II; or (iii) as an alternative to short-term imprisonment and light fines.

The Committee points out that the Convention prohibits the use of “any form of forced or compulsory labour” as a sanction, as a means of coercion, education or discipline in circumstances falling within its scope. It also recalls that the Convention does not prohibit punishment by penalties involving compulsory prison 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, whether such prohibition is imposed by law or by a discretionary administrative decision (see 2012 General Survey on fundamental Conventions, paragraph 303). The Committee therefore urges the Government to take the necessary measures to ensure that both in law and practice,no one who, in a peaceful manner, expresses political views or opposes the established political, social or economic system can be sentenced to sanctions under which compulsory prison or compulsory social work is imposed. It accordingly requests the Government to review the provisions of sections 218, 234, 236 and 240 of the Criminal Code Bill to ensure compliance with the Convention by limiting the application of criminal sanctions to situations connected with the use of violence or incitement to violence or by repealing sanctions involving compulsory prison or compulsory social work. The Committee also requests the Government to provide a copy of the revised Criminal Code in English, once it has been 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 and prohibition of the Communist Party of Indonesia 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. The Committee pointed out that, pursuant to sections 14 and 19 of the Criminal Code and sections 57(1) and 59(2) of the Prisons Regulations, persons sentenced to imprisonment shall perform work imposed on them, which constitutes compulsory prison labour. Recalling that Article 1(a) prohibits all recourse to compulsory labour, including compulsory prison labour, 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 the Government’s information that the substance of sections 14 and 19 are no longer regulated in the Criminal Code Bill. The Government, referring to Law No. 12 of 1995 concerning correctional institutions, states that the correctional system serves to prepare correctional inmates to integrate in a healthy manner into the community and to become free and responsible members of the society.

The Committee also notes that Law No. 27 of 1999 shall be revoked and declared invalid following the promulgation of the Criminal Code Bill (section 622(1) of the Criminal Code Bill). The Committee, however, notes that the provisions under section 107(a)(d) and (e) of Law No. 27 of 1999 appear to be retained under sections 188 and 189 of the Criminal Code Bill, with punishment of imprisonment for a maximum of ten years. Moreover, under section 190, anyone who seeks to replace Pancasila as the state ideology will be sentenced up to five years of imprisonment. The Committee once again recalls 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. In this regard, the Committee emphasizes that, while convict labour exacted from common offenders, such as offenders of robbery, kidnapping, bombing or other acts of violence, is intended to reform or rehabilitate them, the same need does not arise in the case of persons convicted for their opinions (see 2012 General Survey on the fundamental Conventions, paragraphs 300 and 303). The Committee therefore urges the Government to take the necessary measures to bring sections 188, 189 and 190 of the Criminal Code Bill 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 prison or compulsory social work 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.

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