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Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat
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Caveat - VOLUME 12/II, MAY 2010 - LBH Masyarakat

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In this month’s Main Report we bring you coverage on a current LBH Masyarakat case. Humphery Ejike, a Nigerian national has been sentenced to death by a South Jakarta District Court after being …

In this month’s Main Report we bring you coverage on a current LBH Masyarakat case. Humphery Ejike, a Nigerian national has been sentenced to death by a South Jakarta District Court after being convicted as a drug dealer. However the court failed to fully prove Mr Ejike’s guilt, instead it is alleged that the charge was fabricated and the judges were influenced by the race of the accused, rather than the evidence presented to the court. Such judicial prejudice has not only violated the Bangalore Principles, which mandates judges to examine cases impartially and in spirit of equality but the case has also violated Mr Ejike’s basic human rights as guaranteed by the 1945 Constitution and Convention on All Forms of Racial Discrimination (CERD) which was ratified by Indonesia in 1999. In addition to being discriminated against because of his race, Jeff has also had his right to fair trial violated as he was not given access to legal counsel or an appropriate interpreting service. The Additional Feature on this edition of CAVEAT reports on the after math of May 1998 riots and reflects on the wounds that have yet to be healed on the 12th anniversary of the events. The article explores the lack of justice obtained by the government on behalf of the many victims despite the abolition of Suhartos New Order regime. “Building A Rights-Based Approach of HIV/AIDS Case and Policy Advocacy” in Jakarta. Yoseph Adi Prasetyo from the National Human Rights Commission and human rights lawyer Taufik Basari attended the workshop to deliver presentation on the issue of HIV/AIDS, human rights and legal advocacy. The complete report on this workshop may be found in this edition’s Reportage. Last but not least, the Opinion Piece is an open letter written by the Asian Human Rights Commission to the Chief of the Indonesian National Police regarding the shooting of five terrorist suspects in Cikampek and Cawang.

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  • 1. CAVEAT INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS VOLUME 12/II, MAY 2010 MAIN REPORT | Racial Profiling Rampant in Indonesian Courts In the Indonesian legal system racial discrimination is alive and well. The verdict explicitly states that ‘black people from Nigeria often become the object of police’s monitoring, as they often conduct tidy and undiscovered narcotics transactions in Indonesia’. This assumption leads to questions: are we really equal before the law or do Indonesians, unconsciously, still live in the era of apartheid when skin color and ethnic background does matter? ADDITIONAL FEATURE | 12 Years On: Unhealed Wounds and the May 1998 Riots This May marks the 12th year anniversary of Indonesia’s deadly ‘May 1998’ riots, this time of year is always a time to remember those that were killed and to assess the current human rights climate in Indonesia. OPINION | An Open Letter to Chief of Indonesian National Police AHRC strongly condemns terrorism and its impact to society. Terrorism fosters fear and insecurity in society since it indiscriminately kills innocent people. As any other crimes, terrorism cases should be impartially investigated. The special challenges that advanced terrorist activities present to society have to be countered with a professional and well trained police force. Anti-terrorist units thus have to be subject to full judicial accountability and any violations of victims or suspect's rights have to be investigated pursued according to law. www.lbhmasyarakat.org CAVEAT: Let her or him be aware
  • 2. C A V E A T | may 2010 | 1 CONTENT THE EDITOR’S CUT | 2 MAIN REPORT | 3 Racial Profiling Rampant in Indonesian Courts ADDITIONAL FEATURE | 8 12 Years on: Unhealed Wounds and the May 1998 Riots OPINION | 10 An Open Letter to Chief of Indonesian National Police RIGHTS IN ASIA | 12 REPORTAGE | 13 CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta, Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced without prior permission of the LBH Masyarakat. CAVEAT invites feedback and contributions. If you are interested in contributing a guest editorial piece or article, please contact us: contact@lbhmasyarakat.org Editorial Board: Ricky Gunawan, Dhoho Ali Sastro, Andri G. Wibisana, Ajeng Larasati, Alex Argo Hernowo, Answer C. Styannes, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Grandy Nadeak, Vina Fardhofa Special Adviser: Maeve Showell Finance and Circulation: Zaki Wildan Address: Tebet Timur Dalam III B, No. 10, Jakarta 12820, INDONESIA Phone: +62 21 830 54 50 Fax: +62 21 829 80 67 E-mail: contact@lbhmasyarakat.org Website: www.lbhmasyarakat.org LBH Masyarakat welcomes any financial contribution for the development of CAVEAT Name : Lembaga Bantuan Hukum Masyarakat Bank : Bank Mandiri Branch : Tebet Timur, Jakarta, Indonesia No. Acc. :124–000–503–6620 Swift Code :BEIIIDJA L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 3. C A V E A T | may 2010 | 2 THE EDITOR’S CUT In this month’s Main Report we bring you coverage on a current LBH Masyarakat case. Humphery Ejike, a Nigerian national has been sentenced to death by a South Jakarta District Court after being convicted as a drug dealer. However the court failed to fully prove Mr Ejike’s guilt, instead it is alleged that the charge was fabricated and the judges were influenced by the race of the accused, rather than the evidence presented to the court. Such judicial prejudice has not only violated the Bangalore Principles, which mandates judges to examine cases impartially and in spirit of equality but the case has also violated Mr Ejike’s basic human rights as guaranteed by the 1945 Constitution and Convention on All Forms of Racial Discrimination (CERD) which was ratified by Indonesia in 1999. In addition to being discriminated against because of his race, Jeff has also had his right to fair trial violated as he was not given access to legal counsel or an appropriate interpreting service. The Additional Feature on this edition of CAVEAT reports on the after math of May 1998 riots and reflects on the wounds that have yet to be healed on the 12th anniversary of the events. The article explores the lack of justice obtained by the government on behalf of the many victims despite the abolition of Suhartos New Order regime. “Building A Rights-Based Approach of HIV/AIDS Case and Policy Advocacy” in Jakarta. Yoseph Adi Prasetyo from the National Human Rights Commission and human rights lawyer Taufik Basari attended the workshop to deliver presentation on the issue of HIV/AIDS, human rights and legal advocacy. The complete report on this workshop may be found in this edition’s Reportage. Last but not least, the Opinion Piece is an open letter written by the Asian Human Rights Commission to the Chief of the Indonesian National Police regarding the shooting of five terrorist suspects in Cikampek and Cawang. The Asian Human Rights Commission questions the actions of the police who shot unarmed suspects in Cawang. In other news CAVEAT will celebrate its first birthday next month. We have been doing out best to bring you a balanced and up to date round-up of Indonesian human rights news each month. CAVEAT welcomes your criticism and recommendations. Thank you for your ongoing support! The Editor As usual, Rights in Asia serves you three highlights on human rights issues in other Asian countries. LBH Masyarakat’s partner, the Asian Human Rights Commission, reports NGO concerns on the uncompetitive elections for the UN Human Rights Council specifically Malaysia’s candidacy for this election despite the countries bad human rights track record. Rights in Asia also provides an insight into the current situation in Bangkok. On May 18-19 2010 LBH Masyarakat conducted a two-day workshop called L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 4. C A V E A T | may 2010 | 3 MAIN REPORT Racial Profiling Rampant in Indonesian Courts Indonesia, a country which is well known for its multicultural society and high At first glance, this case may seem like just tolerance among its residents may not seem another ordinary narcotics case. A suspect to be a likely breeding ground for skin racial related to a narcotics case was arrested and discrimination in the judicial system. The later sentenced to death. The death penalty state’s motto Bhinneka Tunggal Ika –taken is not an uncommon practice in Indonesia, from old Javanese, means unity within in keeping with the country’s ‘war on drugs’ diversity”- is introduced to Indonesians policy. Jeff’s case, however, is more from when they are very young. The complex. Indonesian government has even proudly claimed in its report to the Jeff was charged with United Nations Committee The Indonesian government has even offering narcotics for sale on the Elimination of Racial proudly claimed in its report to the (Category I) which is an Discrimination in April 2006 United Nations Committee on the offense under Article 82 Elimination of Racial Discrimination that ‘Indonesia is a paragraph (1) Law No. in April 2006 that ‘Indonesia is a multicultural nation which multicultural nation which does not 22/1997 regarding does not discriminate discriminate against any of its people Narcotics. During trial, against any of its people according however, not even a single to background’. The according to reality, however, is far from the ideal witness that testified has background’. The reality, taught to children at school, at least heard, seen, or known that however, is far from the for Humphery Ejike. Ejike, or Jeff as Jeff conducted narcotics ideal taught to children at he is usually called is a Nigerian transactions in his school, at least for national living in Indonesia. In 2003 restaurant. Testimonies Humphery Ejike. Ejike, or he was sentenced to death by delivered by two police Indonesian court. Jeff as he is usually called is officers who arrested Jeff a Nigerian national living in only proved that the Indonesia. In 2003 he was sentenced to heroin were found in Jeff’s restaurant but death by Indonesian court. did not provide enough evidence that Jeff is a drug dealer. The two police officers also Jeff was arrested by police on August 2, testified that they received information 2003 at his Central Jakarta restaurant, from a ‘reliable source’ that narcotics Recon. The police found 1.7 kilograms transactions often been conducted in Jeff’s heroin in the bedroom of the building. His restaurant. However, they have yet to reveal case was later brought before the Central this ‘reliable source’ to the court or to Jeff’s Jakarta District Court and on November 12, defense team. 2003, the Judges reached a guilty verdict on the charge of the sale of narcotics. The court Due to this lack of evidence, Jeff should have therefore punished him with the maximum been acquitted as there was not enough punishment that may be imposed for those evidence to prove that he is guilty. This case, who commit such an offense, the death however, is a perfect example how ‘the sentence. Jeff and his lawyers filed an appeal ideal’ does not always take place in the to a Higher Court and even the Supreme Indonesian judicial process. Instead of Court yet both verdicts reached the same acquitting Jeff due to lack of evidence, the conclusion as the Central Jakarta District judges used their own assumptions as Court. grounds to find Jeff guilty. Firstly, they L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 5. C A V E A T | may 2010 | 4 assumed that 1.7 kilograms heroin is too much for self consumption and that Jeff must have wanted to sell the drugs despite no proof to the contrary. A judges’ assumption is not recognized as legal sense of proof under the Indonesian Criminal Procedure Code. Assumption may be used merely as supporting grounds when there are enough legal sense of proof to be sure that the accused is guilty. Yet it this not the worst assumption the judges used in their verdict against Jeff. Even worse, the second assumption used by judges in Jeff’s case is in regards of his race. In the Indonesian legal system racial discrimination is alive and well. The verdict explicitly states that ‘black people from Nigeria often become the object of police’s monitoring, as they often conduct tidy and undiscovered narcotics transactions in Indonesia’. This assumption leads to questions: are we really equal before the law or do Indonesians, unconsciously, still live in the era of apartheid when skin color and ethnic background does matter? DOES SKIN COLOR MATTER BEFORE THE COURT? Human rights scholar Jack Donnely defines human rights as rights one has simply because one is a human being. Based on this definition, human rights are endowed to all human beings regardless of one’s skin color, religion, social background, or any other conditions. Besides employing the principle of universal human rights, such definition implies the very basic element of human rights as well which is the concept of equality. ‘Equality’ here in sense that no groups are superior to others and neither should any group enjoy more basic rights than others. When a group or an individual enjoys fewer rights than others for unreasonable grounds then what transpires is ‘discrimination’ which is contrary to the concept of equality. Together with the concept of liberty, the formal recognition of equality as a basic element of human rights and may be found in the text of Universal Declaration of Human Rights (UDHR). The famous first L E M B A G A B A N T U A N article of In the Indonesian legal system UDHR mentions that racial discrimination is alive and ‘all human well. The verdict explicitly states beings are that ‘black people from Nigeria often become the object of born free and police’s monitoring, as they often equal in conduct tidy and undiscovered dignity and narcotics transactions in rights’ which is Indonesia’. This assumption leads strengthened to questions: are we really equal by what is before the law or do Indonesians, stated in unconsciously, still live in the era Article 2 that of apartheid when skin color and ‘everyone is ethnic background does matter? entitled to all rights and freedoms... without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status’. As UDHR has no binding power, several international human rights instruments related to antidiscrimination were later enacted, including the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Indonesia itself has ratified the CERD by Law No. 29/1999 and government and parliament enacted Anti Racial Discrimination Law in 2008. It does not mean, however, that before 2008 there were no laws provided protection against discrimination. Law No. 39/1999 on Human Rights provides such protection and even Article 28D paragraph (3) of the 1945 Constitution guaranteed that everyone within Indonesia’s territory has right to be treated equally before the law. In short, the spirit of anti-discrimination has been introduced in many laws and regulations in Indonesia which is also recognized by Committee on the Elimination of Racial Discrimination as ‘positive aspects’ in its’ Concluding Observation in 2007. All of these laws and regulations, unfortunately, are not enough to ensure that a person will not be discriminated against. This should be surprising as the obligation for State to combat discrimination is not only imposed to the lawmakers and executive but judiciary branch as well. The obligation of the State to prohibit and eliminate discrimination related to the judiciary power is enshrined in Articles 5 H U K U M M A S Y A R A K A T
  • 6. C A V E A T | may 2010 | 5 and 6 of the CERD. Article 5 concerns UNFAIR TRIAL equality before the law, Article 6 of the Convention highlights the State’s obligation The concept of equality before the law and to ensure effective protection and remedies court is not only related to nonthrough competent national tribunals or discrimination but to fair trial as well. As any other State’s institutions. To guide State stated in Article 14 of International parties –particularly the Covenant on Civil and The concept of equality before the judiciary branchin law and court is not only related to Political Rights (ICCPR), implementing the provisions in non-discrimination but to fair trial besides equality before Article 5 and 6 of CERD, the as well. As stated in Article 14 of the court and tribunals Committee on the Elimination of International Covenant on Civil there are more elements Racial Discrimination issued and Political Rights (ICCPR), of fair trial, including the General Recommendation XXXI besides equality before the court right to be informed on the prevention of racial and tribunals there are more promptly and in detail in discrimination in the elements of fair trial, including the a language which the administration and functioning right to be informed promptly and suspect or accused in detail in a language which the of the criminal justice system. understands of the suspect or accused understands of nature and cause of the the nature and cause of the charge What has happened in Jeff case, against him/her and the right to be charge against him/her unfortunately, was totally tried without undue delay. and the right to be tried incompatible with all the without undue delay. In mandates given by CERD or its’ General Jeff’s case, these fair trial elements were Recommendations’. Instead of preventing violated. Police, prosecutors, and the court ‘questioning, arrests and searches which are did not provide an interpreter for him in reality based solely on the physical during the legal process. During trial, the appearance of a person’ and ‘ensure certain court provided free assistance of interpreter groups enjoy all the guarantees of a fair trial but the translation was only provided from and equality before the law’ as stipulated in Bahasa Indonesia to English, a language Jeff the recommendation number 20 and 28, the did not understand. No effort was made to judges in Jeff’s case have taken part in find a translator that spoke Jeff’s first championing racial discrimination itself. It language. Interrogation by police and the is ironic how the institution which is hoped prosecutor, and even examination before by discrimination victims to provide the court were conducted in a language Jeff remedies has in fact contributed to race could not understand. Ironically, in their discrimination violation. verdict judges claimed that Jeff did not give clear information during his examination in It is regrettable that judges in Jeff’s case court and this reason was used as a further have behaved impartially, and based their justification for the judges to impose a verdicts on such biased reasoning. As severe punishment for Jeff. Now the stipulated in the Bangalore Principles of question is: how can we expect someone to Judicial Conduct 2002, ‘impartiality’ is one deliver information clearly before the court of values that should be upheld by judges as if he cannot even understand the language well as value of ‘equality’ in examining spoken by the judge and prosecutor. cases. The value of ‘impartiality’ includes an obligation for judges to ‘perform his or her In addition to the lack of a translator, Jeff’s judicial duties without favor, bias, or right to a free trial was further violated by prejudice’. In a line with ‘impartiality’ and his inability to have access to adequate legal ‘equality’ values outlined in the Bangalore counsel. Jeff was arrested on August 2, 2003 Principles comprises of a prohibition for yet he received first legal assistance on judges to ‘... by words or conduct, manifest January 6, 2004. The absence of legal any bias towards persons or groups on the counsel for approximately four months in grounds of their racial or other origin’. Jeff’s case is violation of Article 54 of Indonesian Criminal Procedure Code which L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 7. C A V E A T | may 2010 | 6 states that the suspect or accused has the right to obtain legal assistance in the form of legal counsels during the period of and at every stage of examination against him. In most cases the presence of legal counsels may minimize the potential violation of the suspect or accused rights. At the very least , presence of legal counsels can help the suspect or accused who has no legal background to understand legal process they face and also help them in preparing their defense. Jeff has no education and knowledge of the complexities of the Indonesian legal system. He had to try and self-educate himself as to the legal processes and procedures used by the Indonesian judicial system. Initially, Jeff only was charged of drug ownership under Article 78 paragraph (1) of Narcotics Law but later police decided to add a more serious charge, that being drug dealing under Article 82 of Narcotics Law. UNHAPPY ENDING? As could be expected by the numerous rights violations during Jeff’s trial, this case does not have a happy ending. Central Jakarta District Court returned a guilty verdict; this verdict was upheld after appeals to the DKI Jakarta High Court and Supreme Court. Jeff has been sentenced to death. His case begun with discrimination, was plagued by unfair trial violations, and is about to end with infringements of his very basic rights. Jeff’s name is not on the list of executions to be carried out in 2010 however he is still in his cell on the death row without any news as to when his execution will take place. That is up to the Attorney General’s Office (AGO). It is strongly disappointing that Indonesia still employs capital punishment. From a human rights perspective, the death penalty is a violation of one’s right to life which is the most basic right of a human being. International law expert and Professor Emeritus at Tel Aviv University Yoram Dinstein once pointed out ‘if there were no right to life, there would be no point in the other human rights’. L E M B A G A B A N T U A N Arguments of those who support death penalty claim that the death penalty is an effective deterrent to potential criminals. However no evidence shown that there is correlation between implementation of death penalty and decreasing drug crime numbers. It is also undeniable that the judicial system is vulnerable to human error. Therefore, is it not too risky to decide the continuance of someone else’s life on such vulnerable system? Irrevocability of death penalty is another reason to against it. There is no way to compensate a victim. In addition to the lack of a translator, Jeff’s right to a free trial was further violated by his inability to have access to adequate legal counsel. Jeff was arrested on August 2, 2003 yet he received first legal assistance on January 6, 2004. The absence of legal counsel for approximately four months in Jeff’s case is violation of Article 54 of Indonesian Criminal Procedure Code which states that the suspect or accused has the right to obtain legal assistance in the form of legal counsels during the period of and at every stage of examination against him. Moreover, imposing death penalty is not a good education for society. It teaches society to yearn for revenge instead of forgiveness. Surely imposing death penalty is not the only way to prevent crime. There are number of ways to do it, and they are the obligations of law enforcement officials. Sentencing someone to death in the name of crime to prevent crime is a gruesome shortcut. WHAT NEXT? On paper, Jeff has exhausted all of his available legal remedies. He appealed to High Court and Supreme Court and also filed final review appeal (peninjauan kembali) to the Supreme Court. However, LBH Masyarakat is not going to give up. LBH Masyarakat is currently conducting several strategies for Jeff, including meeting with the National Human Rights Commission (Komnas HAM) and conducting expert examinations with and human rights H U K U M M A S Y A R A K A T
  • 8. C A V E A T | may 2010 | 7 experts such as Ms. Asmin Fransiska, Mr. Ori Rahman, and Mr. Eddy O.S Hiariej. LBH Masyarakat is researching the possibility to file a second final review appeal for this case even though such legal remedy is not recognized by law. In practice there are some cases which indicate that it is possible to file second final review appeal. The possibility is not likely but for saving one’s life it is worth to try. -- L E M B A G A It is strongly disappointing that Indonesia still employs capital punishment. From a human rights perspective, the death penalty is a violation of one’s right to life which is the most basic right of a human being. International law expert and Professor Emeritus at Tel Aviv University Yoram Dinstein once pointed out ‘if there were no right to life, there would be no point in the other human rights’. B A N T U A N H U K U M M A S Y A R A K A T
  • 9. C A V E A T | may 2010 | 8 ADDITIONAL FEATURE 12 Years On: Unhealed Wounds and the May 1998 Riots This May marks the 12th year anniversary of Indonesia’s deadly ‘May 1998’ riots, this time of year is always a time to remember those that were killed and to assess the current human rights climate in Indonesia. 1998 Chinese owned shops, businesses and buildings were ransacked and then destroyed, from large companies to family owned stores. Areas such as Glodok in West Jakarta and Mangga Dua in North Jakarta were especially targeted for their high concentration of Chinese residents. LET’S SEE HOW FAR WE’VE COME In 1998 Indonesia was teetering on the brink of a total meltdown. The 1997 Asian As the dust settled on a city divided in 1998, Financial Crisis had caused the Rupiah to much was said about Indonesia’s fresh start. plunge and unemployment rates to rise at The people had spoken, they had rejected an increasingly high rate, food shortages the old corrupt order and many claimed were driving large amounts of people to that democracy had a chance to flourish. turn to violence in order to feed their Initially this seemed to be the case. A new families. The tide was turning against electoral system was introduced and a President Suharto, the corrupt leader that record number of people went to the polls had leaded the country for over 30 years. to choose their democratically elected Demonstrators were clogging the streets, candidate. demanding for Suharto to step down. One particular protest – lead by students at Trisakti University in Jakarta – As the dust settled on a city However it seems that became the turning point as divided in 1998, much was said somewhere in the last twelve police fired into the crowd, about Indonesia’s fresh start. years Indonesia has failed to killing four of the student The people had spoken, they deliver on its promises. Suharto linked power brokers demonstrators. had rejected the old corrupt like Aburizal Bakrie, the order and many claimed that Rioters began to take their democracy had a chance to current leader of ex Suharto anger out on the Indonesian flourish. Initially this seemed political vehicle Golkar, and Prabowo Chinese, a group known for its to be the case. A new electoral former General system was introduced and a Subianto (widely believed to wealth within Indonesia, record number of people went many reports suggested, from to the polls to choose their have a large hand in orchestrating the riots) still the look of the most violent democratically elected wield power in politics and rioters that the army had a candidate. one of the most reformist huge part to play in the politicians in a long while, Sri Mulyani was violence. As the riots spread over 1500 recently forced out from her position in people were killed and a large number were cabinet. General Wiranto who was head of raped. We can never know the exact the Indonesian Armed forces during the riot number of women and girls who were has is currently the Chairman of the Peoples subjected to humiliating sexual abuse as Conscience Party. Just last month Jakarta much of it went unreported as families tried saw another bloody riot which former Vice to deal with the aftermath on their own. President Jusuf Kalla likened to the May Many wealthy Chinese-Indonesian families 1998 atrocities. Similar to 1998 the fled the country, those that could not afford behavior of police in handling riot to were forced to barricade themselves in prevention has come under fire. The power their homes and hope for the best. Many L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 10. C A V E A T | may 2010 | 9 in Indonesia is still held by the privileged few and cases (such as the acquittal of Suharto’s son Tommy) have shown that the judicial system has a long way to come. It cannot be denied that Indonesia has taken steps down the right path since 1998 but the country has a very long time to go before full democracy and human rights can flourish. REMEMBERING THE TRAGEDY Across the globe there has been much debate on how to deal with post conflict remembrance. In Germany after the Second World War trials of Nazi War Criminals took place and museums were built to inform another generation of the tragedy. In schools all over the world children are taught about the holocaust to ensure that such evil does not take place again. If justice cannot be achieved for the families of victims the least that can happen is that a dialogue is opened in which to discuss human rights and what this means in times of strife. This is why it is important that Indonesia does not forget those that lost their lives in 1998, or those who lost livelihoods, family members or experienced trauma at the hands of others. Andy Yentriyani, from the National Commission on Violence Against Women (Komnas Perempuan) spoke to The Jakarta Globe on the subject, Andy stated that “The tragedy is only being remembered as demonstrations by students which led to President Suharto quitting. The shooting, the rioting, the sexual abuse of women must be included. We cannot remain silent or deny it. We need to include that in the history books” However the Indonesian Justice Minister has suggested that Indonesia would be best served as to put the tragedy behind them. Speaking to Detik.com Patrialis Akhbar has said that “If we continue to look for who is most responsible, I don’t think we will ever find a way out. We will just keep looking and looking.” L E M B A G A B A N T U A N There have been attempts to bring those that were responsible for the tragedy to justice and to compensate victims but neither effort has flourished. Directly after the incident the Tim Gabungan Pencari Fakta (TGPF or Joint Fact Finding Team) was established by a Joint Decree by the Defense and Security Minister/Commander of the Indonesian Army, Justice Minister, Home Affairs Minister, Foreign Affairs Minister, State Minister for Women Empowerment and Attorney General issued on 23 July 1998. In addition KOMNAS HAM also put together a fact finding team to investigate the riots, however both of these efforts seem to have got bogged down at the Attorney General’s Office. Thus none of the initiatives formed to bring justice and answers to those affected have been able to do so, and for the victims and their families this is simply not good enough. -- Across the globe there has been much debate on how to deal with post conflict remembrance. In Germany after the Second World War trials of Nazi War Criminals took place and museums were built to inform another generation of the tragedy. In schools all over the world children are taught about the holocaust to ensure that such evil does not take place again. If justice cannot be achieved for the families of victims the least that can happen is that a dialogue is opened in which to discuss human rights and what this means in times of strife. This is why it is important that Indonesia does not forget those that lost their lives in 1998, or those who lost livelihoods, family members or experienced trauma at the hands of others. H U K U M M A S Y A R A K A T
  • 11. C A V E A T | may 2010 | 10 OPINION FOR IMMEDIATE RELEASE May 17, 2010 AHRC-OLT-004-2010 An Open Letter to Chief of Indonesian National Police General of Police Bambang Hendarso Danuri Chief of Indonesian National Police Jl. Trunojoyo No. 3 South Jakarta INDONESIA Tel: +62 21 721 8555, +62 21 721 8012 Fax: +62 21 720 7277 Email: polri@polri.go.id CC: United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mr. Martin Scheinin; President Susilo Bambang Yudhoyono Dear Sir, INDONESIA: Police act disproportionately in war on terror -- unarmed suspects shot dead According to your statement and reports, three alleged terrorists were shot to death on May 12, 2010 in Cawang, Jakarta by police officers from the special detachment for anti-terrorism (Densus 88). Two others were killed in a raid in the Cikampek subdistrict, East Jakarta by the same unit on the same day. According to eyewitness reports the police opened fire against unarmed suspects in Cawang. The Asian Human Rights Commission (AHRC) is very concerned about the disproportionate us of lethal force in this operation. AHRC strongly condemns terrorism and its impact to society. Terrorism fosters fear and insecurity in society since it indiscriminately kills innocent people. As any other crimes, terrorism cases should be impartially investigated. The special L E M B A G A B A N T U A N challenges that advanced terrorist activities present to society have to be countered with a professional and well trained police force. Anti-terrorist units thus have to be subject to full judicial accountability and any violations of victims or suspect's rights have to be investigated pursued according to law. For this very reason, the AHRC regrets the shooting that occurred in the two locations in Jakarta. The AHRC is in particular concerned about the incident in Cawang, since the suspects were unarmed and no harmful acts were committed by them at that time of the operation. According to eyewitness reports, one of the suspects had just gotten out of a taxi and was about to meet the other two suspects when four police officers from the Densus 88 unit attempted to arrest the suspect. When he physically resisted the arrest, the police opened fire at him. The two other suspects tried to escape but were caught, beaten and were reported to have been shot to death too. Of the five persons who were killed by police in the course of the two operations on this Wednesday, only two were identified, namely as Saptono and Maulana, who are listed as most dangerous terrorists by police. These detailed witness reports are very concerning since they indicate a disproportionate use of force beyond necessary means for an arrest and would thus present a violation of the right to life as established in the International Covenant on Civil and Political Rights. The police later explained that they had no choice but to shoot the suspects since the suspects "resisted and did not want to be arrested, we did not want to take any risk of officers being killed" (Brigadier General, Zainuri Lubis). However, it is neither clear whether the suspects tried to commit any harmful counter attacks that would have left the police no other choice than to fire deadly shots, nor is any information provided by the police or other evidence H U K U M M A S Y A R A K A T
  • 12. C A V E A T | may 2010 | 11 available as to whether the suspects threatened public security in an immediate way at the time of arrest. The independent witness present at the shooting location confirmed that the suspects tried to escape and that the only form of resistance to the arrest was to beat the police officers with his arms. The police responded by hitting the suspect with a gun resulting in bleeding. No report suggests that a necessity to fire shots or to fire deadly shots would have arisen. Terrorism has rightly been condemned by the international community for having cost numerous innocent civilian lives and several countries are trying to counter such inhuman activities including Indonesia. However, protecting public security does not justify the violation of the rights of others as international jurisprudence has extensively ruled. Means used by states to prevent terrorism have to be in accordance with human rights principles and limited to only necessary harm against suspects. State responses to terrorism have to be conducted with full respect to the terrorists' rights as a human being. The police, in exercising its duties to prevent all crimes including terrorism, has to apply the concepts of 'necessity' and 'proportionality' as enshrined in Article 3 United Nations Code of Conduct for Law Enforcement Officials. The shooting of three terrorists in Cawang shows that the police often neglect these principles and tend to commit rash measures in many terrorism cases, which results in the violation of basic rights. In March 2010 alone, five alleged terrorists were shot to death in Aceh, without any reported resistance to the arrest. Several laws and rules which mandate police to respect human rights and act professionally have been enacted in Indonesia, including Law No. 2/2002: Indonesian National Police, Police Regulation No. 8/2009: Implementation of Human Rights Principles and Standards in the Discharge of Duties of the Indonesian National Police, as well as the Code of Conduct for Indonesian National Police Officers. Despite this legislation and several institutional reforms the repeated incidents of police killings show a serious lack of implementation of these standards. Accountability for misconduct is the key to address human rights violations by state authorities, in particular the police. The AHRC urges you to ensure that an independent investigation regarding the killings in anti-terrorist operations that occurred on May 12, 2010 in Jakarta is conducted. The killings of civilians and suspects in Aceh in February and March 2010 have to be investigated by an impartial unit as well. The AHRC also calls for a reform and professionalization of the police, in particular its anti-terrorist unit. A committed implementation of the new police regulations through internal disciplinary and criminal procedures is necessary to ensure police accountability for the protection of human rights. Yours faithfully, Basil Fernando Director Asian Human Rights Commission, Hong Kong In AHRC-STM-047-2010 the AHRC reported about the death of innocent civilians. Kamarrudin and his 14 year-old son, Suheri, were mistakenly suspected as members of a terrorist group based in Aceh. Both victims were shot at by police, which later caused Kamarrudin's death and severe injuries of his son. Several other killings in counterterrorist operations have been reported from Aceh. (see AHRC-UAC-058-2010) L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 13. C A V E A T | may 2010 | 12 RIGHTS IN ASIA Information contained in this column is provided by the Asia Human Rights Commission (AHRC). ASIA – NGO coalition concerns on Human Rights Council election The NGO Coalition for an Effective Human Rights Council regrets the uncompetitive election for the UN Human Rights Council as the number of candidates equals the number of vacant seats allotted to the region. The candidacy for membership in this UN authority for human rights would thus not be based on a competition for good human rights standards but become a socalled clean-slate election without options. As pointed out by Peggy Hicks from Human Rights Watch, "The council elections have become a pre-cooked process that strips the meaning from the membership standards established by the General Assembly". The coalition also highlighted the human rights conditions in Angola, Libya, Malaysia, Thailand and Uganda that these countries are urged to take concrete steps for human rights improvement before they take their seats on June 19, 2010. Malaysia’s candidacy is one of the most contentious due to its bad track record on human rights. Thirty eight NGOs including LBH Masyarakat sent a joint letter to the UN General Assembly members, asking them to consider Malaysia’s human rights record before granting their vote to the country in the election. Malaysia lacks protection for human rights at national level and the country fails to act cooperatively with the Human Rights Council. Malaysia has still not issued a standing invitation for visits to all UN special procedures mandate holders as would be expected for a membership in the Council. imminent and that more lives will be lost. On April 10, at least 25 people died and hundreds were injured when the army moved on assembled demonstrators. During 14 - 16 May it is reported that at least 33 people died and 239 others were injured. Although the government denied that the military on that occasion used live ammunition, all evidence is to the contrary. The government of Thailand should by now be aware that the use of soldiers to dislodge these demonstrators is counterproductive. Not only has it failed in its basic objective, but it has also again dragged the country's reputation to new lows, ironically, just as its diplomats are bidding for a seat on the United Nations Human Rights Council. The deep loss in public respect for state institutions over recent years, especially loss of confidence in the judiciary, is primarily a consequence not of public actions but of the wrongheaded and illintended acts of successive administrations. Any resort to violence now will only further diminish the standing of key state agencies, causing further setbacks to the decades long project to build rational institutions for a humane and intelligent society. Thailand - Further bloodshed must be avoided at all costs There are many disturbing reports of a possible new attack to disperse antigovernment protestors that have continued to assemble in Bangkok. There are grave and legitimate fears that further violence is L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 14. C A V E A T | may 2010 | 13 REPORTAGE National HIV/AIDS Workshop Report discussion of how the key populations are defined, and its pros and cons. Tandiono Bawor from HUMA who facilitated the workshop did a good job by bridging the gap among people who shared different perspectives. Jakarta – On May 18 and 19, Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat) with the support from the International Development Law Organization (IDL) and the OPEC Funds for International Development (OFID), held a Still on day one, Yoseph Adi Prasetyo from two-day workshop called “Building A the National Human Rights Commission Rights-Based Approach of HIV/AIDS Case (Komnas HAM) presented a session on and Policy Advocacy” in Jakarta. The human rights and HIV. His presentation objective of the workshop was to provide a covered an introduction on human rights, comprehensive understanding regarding its definition, principles, and national and the relation between law, human rights, and international human rights framework, key HIV/AIDS as well as its underlying human rights that are closely related with components the extent the issue of HIV or people to which it can be On second day, Taufik Basari, a human living with HIV/AIDS utilized to conduct an rights lawyer and LBH Masyarakat’s (PLHIV). Afterwards, Julie effective legal service Chairperson of the Board of Directors, Hamblin a HIV and law gave a presentation on legal advocacy and legal advocacy expert from Australia and its role to create an effective which is ultimately HIV/AIDS policy. He presented a number presented a session on the expected to create an of key points regarding legal advocacy issue of legal services as a enabling environment. It based on his long experience in the field. tool to support effective is also hoped that this “It is crucial for us to set down what are responses to HIV. She also workshop can be a the indicators of our strategy in order to reiterated a key point that forum for two important observe whether our legal advocacy had been raised by advocacy groups: strategy has reached its target or not. Yoseph. “Supportive laws law/human rights and And not to mention, its exit strategy or are an essential part of the HIV/AIDS, to interact, mitigation scheme if the legal advocacy enabling environment. failed to meet our top goals,” said Taufik. understand, and engage Supportive laws can one another. actually do two things: first, they provide legal protection for the The organizer invited 20 participants, 14 of people affected, and secondly, they which were from Jakarta. The remaining six strengthen our capacity to respond hailed from Bandung, West Java; Semarang, effectively to HIVand reduces further Central Java; and Surabaya, in East Java. The spreading,” said Julie. She also gave some participants come from various example of cases from Papua New Guinea, backgrounds, eight from legal aid Australia, and South Africa of how the legal institute/human rights NGO, one from the service can be used. legal aid centre of the Indonesian Bar Association (PERADI), one representing On second day, Taufik Basari, a human theNational AIDS Commission (KPAN), and rights lawyer and LBH Masyarakat’s ten of attendees were activists from Chairperson of the Board of Directors, gave HIV/AIDS NGOs and key populations a presentation on legal advocacy and its role groups. to create an effective HIV/AIDS policy. He presented a number of key points regarding On day one, Setyo Warsono from KPAN legal advocacy based on his long experience presented a brief introduction on HIV/AIDS in the field. “It is crucial for us to set down and focused heavily on its national strategic what are the indicators of our strategy in planning for the next five years. Thereafter, order to observe whether our legal his presentation was followed by an intense advocacy strategy has reached its target or L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 15. C A V E A T | may 2010 | 14 not. And not to mention, its exit strategy or mitigation scheme if the legal advocacy failed to meet our top goals,” said Taufik. After his presentation, the participants were divided into four groups in which they then took part in discussion about legal problems faced by PLHIV and key populations and how they aim to solve such problems, what sort of legal advocacy they would undertake, and who are their allies and foes, and so forth. At the end of the day, the participants agreed to keep maintaining communication and engage more deeply among themselves and bear in mind some action plans, one of which is to advocate HIV-related cases together. -- L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T
  • 16. C A V E A T | may 2010 | 15 ABOUT US Born from the idea that all members of society have the potential to actively participate in forging a just and democratic nation, a group of human rights lawyers, scholars and democrats established a nonprofit civil society organization named the Community Legal Aid Institute (LBH Masyarakat) By providing a wide range of opportunities, LBH Masyarakat is able to join forces with those concerned about upholding justice and human rights to collectively participate and contribute to the overall improvement of human rights in Indonesia. LBH Masyarakat is an open-membership organisation seeking to recruit those wanting to play a key role in contributing to the empowerment of society. The members of LBH Masyarakat believe in the values of democracy and ethical human rights principals that strive against discrimination, corruption and violence against women, among others. LBH Masyarakat aims for a future where everyone in society has access to legal assistance through participating in and defending probono legal aid, upholding justice and fulfilling human rights. Additionally, LBH Masyarakat strives to empower people to independently run a legal aid movement as well as build social awareness about the rights of an individual within, from and for their society. LBH Masyarakat runs a number of programs, the main three of which are as follows: (1) Community legal empowerment through legal counselling, legal education, legal clinics, human rights education, awareness building in regard to basic rights, and providing legal information and legal aid for social programs; (2) Public case and public policy advocacy; (3) Conducting research concerning public predicaments, international human rights campaigns and advocacy. These programs are conducted entirely in cooperation with society itself. LBH Masyarakat strongly believes that by enhancing legal and human rights awareness among social groups, an independent advocacy approach can be adopted by individuals within their local areas. L E M B A G A B A N T U A N Lembaga Bantuan Hukum Masyarakat Tebet Timur Dalam III B, No. 10 Jakarta 12820 INDONESIA P. +62 21 830 54 50 F. +62 21 829 80 67 E. contact@lbhmasyarakat.org W. http://www.lbhmasyarakat.org H U K U M M A S Y A R A K A T

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