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CAVEAT
INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS

VOLUME 05/I, OCTOBER 2009

MAIN REPORT |

Access to Justice:
Illusion or
Reality?
Access to justice has been recognized as
essential to supporting and empowering
disadvantaged people and the ability to access
justice enables lower socio-economic sectors to
address and counter inherent biases in society,
thereby creating a more democratic system of
governance. However, reality speaks differently.
Sudarman, an old poor guy, lost his hopes and
goals in life when his home was destroyed. “My
belongings meant nothing to me. It was only Rp
5 millions, but that money was my hard earned
cash. I had planned to build a house in Solo but
now it's gone there's nothing left. That eviction
has crushed my dream,” he said.

ADDITIONAL FEATURE |

Learning from Hunger:
Reflecting on Starvation in
Yahukimo
The Indonesian Social Services Christian
Foundation (YAKPESMI) last month shocked the
country by releasing a report that claimed 113
people had died from starvation in Yahukimo,
Papua, between January and August this year. It
was reported that bad weather had resulted in a
scarcity of food as crops were destroyed and
that heavy rain had led to a spike in diseases
such as malaria and diarrhea. YAKPESMI
reported that six districts were affected,
including Langda, Bomela, Suntamon, Seradala,
Talambao and Nipsan. Both central and local
governments in the region have denied that the
victims died from starvation.

OPINION |

Double Standards of
Indonesian Police
Two vice chairmen of Indonesia’s Corruption
Eradication Commission are under police
investigation for alleged abuse of authority. Yet
lawyers and activists have widely criticized the
investigation of Chandra M. Hamzah and Bibit
Samad Riyanto, suggesting the two are being
persecuted because the police hope to weaken
the commission and undermine its effective
anti-corruption efforts.

www.lbhmasyarakat.org
CAVEAT:
Let her or him be aware
C A V E A T | october 2009 | 1

CONTENT
THE EDITOR’S CUT | 2
MAIN REPORT | 3
Access to Justice: Illusion or Reality?

ADDITIONAL FEATURE | 6
Learning from Hunger: Reflecting on Starvation in Yahukimo

OPINION | 8
Double Standards of Indonesian Police

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, Answer C. Styannes,
Christine Tambunan, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Maryam Jamilah, Yura
Pratama
Special Adviser:
Ella Davison
Finance and Circulation:
Zaki Wildan
Address:
Tebet Timur Dalam III D, No. 2, Jakarta 12820, INDONESIA
Phone:
+62 21 830 54 50
Fax:
+62 21 829 15 06
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

LEMBAGA BANTUAN HUKUM MASYARAKAT
C A V E A T | october 2009 | 2

THE EDITOR’S CUT
This month’s CAVEAT provides insight into
the fraught journey of minority groups to
access justice, exemplified by the story of a
man who was evicted from his home, lost
his belongings and has struggled to receive
any form of compensation. Access to justice
has been recognized as essential to
supporting and empowering disadvantaged
people and the ability to access justice
enables lower-socio economic sectors to
address and counter inherent biases in
society thereby creating a more democratic
system of governance. However, reality
speaks differently.
Sudarman lost his hopes and goals in life
when his home was destroyed. “My
belongings meant nothing to me. It was only
Rp 5 millions, but that money was my hard
earned cash. I had planned to build a house
in Solo but now it’s gone there’s nothing left.
That eviction has crushed my dream,” he
said. He submitted a civil lawsuit against the
Jakarta government in the West Jakarta
District Court in August, but there has been
no clear resolution as no defendants have
appeared before the court. Sudarman’s
situation is far from unique in this country.
His circumstances raise serious questions
about accessibility to justice for the
disadvantaged in Indonesia. Where does the
onus lie to compensate his sufferings and
losses?
The additional feature in this CAVEAT tells
of the dire starvation in the Yahukimo
region in Papua. This article is a
collaboration by LBH Masyarakat and the
Asian Human Rights Commission. The
Indonesian Social Services Christian
Foundation (YAKPESMI) claims that 113
people have died from starvation in the
region this year. It is vital that the
government recognizes the need to not only
provide food subsidies and aid, but to also
invest in infrastructure in the area, to
improve distribution, and implement longterm measures to ensure availability and
accessibility to adequate food. This concept
of adequacy is outlined in an article of the

LEMBAGA BANTUAN HUKUM MASYARAKAT

International Covenant of Economic, Social
and Cultural Rights (ICESCR), of which
Indonesia is a signatory.
Last but not least, the opinion piece,
“Double Standards of Indonesian Police,”
written by Answer C. Styannes, explores the
ongoing enmity between the Corruption
Eradication Commission (KPK) and the
National Police. The dispute sparked when
the KPK began investigating the national
police’s chief detective, Susno Duaji, for
allegedly using his power to force Bank
Century to unlawfully return a large amount
of deposited funds to their owner. In return,
it is alleged, Duaji received Rp 10 billion
(US$ 1 million). It is argued that the
National Police have acted unprofessionally
in investigating two deputy commissioners
at the KPK. It has been claimed that the
deputies are being persecuted because the
police hope to weaken the commission and
undermined its effective anti-corruption
efforts. Professionalism in the police force is
vital as it is closely related to human rights
enforcement. It is a police obligation to
protect human rights. An unprofessional
police force can impede people’s access to
justice, as it is the only institution with the
authority to handle almost all criminal
cases.
We hope the three features presented in
this edition of CAVEAT will provide a
clearer and more concise understanding of
the rule of law, human rights, and
democracy in Indonesia.
Thank you for your ongoing support!
- The Editor
C A V E A T | october 2009 | 3

MAIN REPORT

Access to Justice:
Illusion or Reality
UNDERSTANDING ACCESS TO JUSTICE

Access to justice has been recognized as
essential to supporting and empowering
disadvantaged people. The ability to access
justice enables lower socio-economic
sectors to address and counter inherent
biases in society, thereby creating a more
democratic system of governance. Access to
justice is defined by the UNDP as The right
of every person — irrespective of race,
religion, gender, disability and class — to
utilize the legal systems, both formal and
informal, to attain justice in a situation of
inequity.
Access to a formal framework of justice is a
basic human right and has proven essential
in the fight to eradicate poverty, resolve
conflict and reconcile the injustices affecting
those living at the margins of society.
Without a means to a fair and just legal
structure,
society
becomes
further
fractured, often to the detriment of minority
groups, particularly along the lines of race,
religion, gender, disability and class.
It should be recognized that both formal and
informal institutions have key roles to play
in the dispensation of justice.
A GLOBAL PERSPECTIVE

The right to access justice systems is
consistent with the ethos of the Millennium
Declaration of the United Nations
Development Program (UNDP) and the
fulfilment of its Millennium Development
Goals, of which Indonesia is a signatory.
Worldwide, it is recognized that difficulty
accessing justice is inexorably linked to
poverty as disadvantaged people often
LEMBAGA BANTUAN HUKUM MASYARAKAT

suffer without an advocate in the formal
sector.
It is therefore vital that minority groups
must be able to access justice via a range of
means. Across the formal and informal
sectors, this can include police, the courts,
social
workers,
community
leaders,
religious leaders and representatives from
NGOs.
Key to this right is the importance of legal
awareness; as with most efforts made to
combat poverty, the crux is education.
Minority groups cannot access justice if they
are unaware of their rights. It is the
responsibility of a democratic parliament to
inform their constituents of their rights and
entitlements in a transparent and easily
accessible manner.
An approach that targets the needs of the
poor is far more effective than a broader
education campaign. Recognizing the needs
and pitfalls of minority groups enables a
government to combat the lack of
information among the uneducated.
CLOSER TO HOME

President Susilo Bambang Yudhoyono has
cited his crusade against corruption as key
to the country’s development. While we
applaud the president’s campaign, a more
focused approach to the nation’s poor is
needed,
especially
in
Access to a
regards to access to justice.
Targeting the needs of the
poor is paramount to the
dispensation
of
legal
assistance. Issues such as
housing, matters of personal
finance and taxation, health

formal
framework of justice is a
basic human right and has
proven essential in the
fight to eradicate poverty,
resolve
conflict
and
reconcile the injustices
affecting those living at
the margins of society.
C A V E A T | october 2009 | 4
care and the resulting medical bills, and
voluntary and involuntary migration are
widespread among minority groups and
often result in crippling expenses.
Unfortunately, the majority of these cases
fail to grasp the public’s attention. Recent
high profile cases include those of Prita
Mulyasari, imprisoned for a month under
the Information and Technology Law for
allegedly defaming a private hospital in an
email to friends; the battle for compensation
by the residents of Sidoarjo after their
homes were destroyed by a mudflow; and
that of Siti Hajar, who was abused for three
years and suffered severe burns at the
hands of her Malaysian employee.
While public outrage, fueled by the
proliferation of social media networking,
has raised the profiles of these cases, a lack
of legislation specifically designed to protect
the poor indicates that disadvantaged
groups will continue to suffer in Indonesia
unless the House of Representatives focuses
its attentions on expanding and facilitating a
better path to justice.
LONG JOURNEY TO PURSUE JUSTICE

Sudarman is seeking justice. In 2003, he
became homeless when his house was
destroyed by Tramtib Pemda DKI Jakarta
(Ketentraman dan Ketertiban Pemerintah
Daerah) and he lost all of his belongings.
Sudarman acknowledges that he was living
in the area illegally and that he didn’t own
the house or land. However, during the
demolition, for which there was no prior
warning, he lost belongings valued at Rp 5
million ($500) – his life’s work. “Is there any
law in this universe that allows the
destruction of another’s belongings? If the
answer is no, I deserve to exercise my
rights,” he says.
For the past six years, this belief has kept
Sudarman on the path to access justice so
he can receive compensation for his losses.
In 1970, the father of five migrated from
Solo to Jakarta to seek a better life. He
owned a water cart and would sell water
to residences in Jembatan Besi, West

LEMBAGA BANTUAN HUKUM MASYARAKAT

Jakarta, and would help his neighbors with
manual labor. He lived away from his
family, sending Rp 1 million ($100) per
month back to Solo for school fees. The
problems started in 1994, when PT Cakra
Wira Bumi Mandala bought the land in
Jembatan Besi, with plans to “Is there any law in this
build a mall and apartment universe that allows the
buildings. Because of his destruction of another’s
lack
of
ownership, belongings? If the answer
Sudarman says he was is no, I deserve to exercise
willing to move when the my rights,”
time came. “But I was still
allowed to stay there, so there I was.” The
company’s plans for development did not
run
smoothly,
and
the
building
commencement was postponed numerous
times. During that period, new residents
arrived and built illegal homes on the land.
In 2003, an eviction notice was circulated
among the residents. “More than once, I
was asked to guard the area with the new
residents. But I rejected the offer. I never
agreed with their decision to stay with the
houses and land. We were just boarding
and did not have any right to be there.” On
Aug. 1, 2003, Sudarman returned to Solo to
celebrate Independence Day with his
family. Upon his return to Jakarta a month
later, he discovered that his home had
been destroyed and his personal
belongings were gone. He had never been
informed of the official eviction date and
he claims that PT Cakra Wira Bumi
Mandala never sent representatives to
inspect the area. Sudarman not only lost
his house and belongings, but also his
means of employment, as his water cart
was destroyed in the process. However, he
says that this paled in comparison to the
distress caused by the demolition. “My
belongings that were broken and lost
mean nothing to me. They were only worth
about Rp 5 million but that money was my
hard-earned cash. I had planned to build a
house in Solo but now it’s gone there’s
nothing left. That eviction crushed my
dreams,” he says. Sudarman’s children
have been forced to drop out of school and
his wife now works as a maid. He cannot
afford to return to Solo.
C A V E A T | october 2009 | 5
In a bid to seek retribution, he met with
representatives from the Jakarta City
Administration, National Human Rights
Commission (Komnas HAM) and an
established legal aid institute to present
his case. However, despite his efforts,
Darman’s case failed to progress and he
alleged the institutions treated him poorly.
Darman’s situation is far from unique in
this country. His circumstances raise
serious questions about accessibility to
justice for the disadvantaged in Indonesia.
Where does the onus lie to compensate
Darman for his suffering and losses?
Every Indonesian has a right to access a
wholly fair and structured justice system.
A lack of such a system undermines this
country’s democratic governance and
leaves its citizens feeling disenfranchised
and discontented. Sudarman is now suing
the company through the West Jakarta
District Court.

Figure 1| Sudarman, while showing his lawsuit
document

A WAY FORWARD

Sudarman’s situation exemplifies the
vicious
circle
of
poverty
and
disempowerment that affects minority
groups. His lack of formal education and
severe disabilities prevent him from
entering the formal work sector, and has
even hindered his attempts to earn a living
in the informal sector. A resulting shortage
of funds and the daily struggle to survive
have prevented him from accessing
various paths to justice, as he has been, up
until this point, unable to raise awareness
of his case, or access the appropriate paths
of redress.
A myriad of agencies and information has
left the plaintiff confused as to where to
turn for legal assistance. A structured
government system, overseeing both
formal and informal representatives of the
justice system, could address this problem
and give minority groups a better chance
at accessing and achieving justice.

--

LEMBAGA BANTUAN HUKUM MASYARAKAT

A structured government
system, overseeing both
formal
and
informal
representatives of the
justice
system,
could
address this problem and
give minority groups a
better chance at accessing
and achieving justice.
C A V E A T | october 2009 | 6

ADDITIONAL FEATURE

Learning from Hunger:
Reflecting on Starvation in Yahukimo
This article is developed by LBH Masyarakat
in partnership with the Asian Human Rights
Commission
INTRODUCTION

The Indonesian Social Services Christian
Foundation (YAKPESMI) last month
shocked the country by releasing a report
that claimed 113 people had died from
starvation in Yahukimo, Papua, between
January and August this year. It was
reported that bad weather had resulted in a
scarcity of food as crops were destroyed
and that heavy rain had led to a spike in
diseases such as malaria and diarrhea.
YAKPESMI reported that six districts were
affected,
including
Langda,
Bomela,
Suntamon, Seradala, Talambao and Nipsan.
Both central and local governments in the
region have denied that the victims died
from starvation.
Despite disagreeing with the report’s
findings, the local government decided to
send food and medical aid to the affected
areas. Three hundred tons of rice were
distributed, starting with Walma district on
Sept. 18. Various sources, however, have
reported that only 16 tons of rice were
distributed to 11 districts while the other 16
— including Langda, Bomela, Suntamon and
Siradala districts — haven’t received any
food aid since Oct. 10. In a meeting with the
minister for social welfare, Ones Pahabol,
chief of Papua regency, said it was difficult
for the local government to distribute food
and medical aid due to transportation
problems in the isolated and remote areas,
which can only be reached by helicopter.
Food shortages are not unusual for the
residents of Yahukimo. In 2005, it was
reported that 55 people died of starvation, a
claim that was again denied by the
government. Interestingly, even though
LEMBAGA BANTUAN HUKUM MASYARAKAT

officials refused to acknowledge that the
victims died from starvation, government
measures at the time indicated that that was
indeed the real problem. According to a
report published on the Web site of the
Ministry of Social Welfare, one million kilos
of rice and approximately 284 kilograms of
sweet potatoes were distributed to affected
areas. The government also claimed that in
2006, 12 food storage facilities were built
and seeds for crops were distributed for
free. The storage facilities, however, remain
unused.
ALERTING HUNGER

The right to adequate food as a fundamental
human right is recognized in the 1996 Food
Law. The law also states that availability of
safe, nutritious and good quality food is
requisite, and must be ensured by a system
provides protection for the purposes of
health and to play a larger role in increasing
the prosperity and welfare of the people.
Moreover, Section 17 of Article 1 in Chapter
1 states, “Food security is the condition in
which the provision of food for households
is reflected by the availability of sufficient
food both in its quantity and quality.”
As a state party of International Covenant of
Economic, Social, and Cultural Rights
(ICESCR), the Indonesian government has
an obligation to take steps with a view to
achieving the full realization of the rights in
ICESCR, including the right to adequate food
as enshrined in Article 11 of ICESCR.
“The state parties to the present
Covenant,
recognizing
the
fundamental right of everyone to be
free from hunger, shall take,
individually and through inter
needed: a) To improve methods of
production,
conservation,
and
distribution of food by making full
C A V E A T | october 2009 | 7
use of technical and scientific
knowledge,
by
disseminating
knowledge of the principles of
nutrition and by developing or
reforming agrarian systems in such a
way as to achieve the most efficient
development and utilization of
natural resources; b) Taking into
account the problems of both food
importing and food exporting
countries, to ensure an equitable
distribution of world food supplies in
relation to need”.
In hindsight, it is regrettable that the
government only provided short-term
measures during the 2005 food crisis. These
measures have failed to prevent starvation
in the area.
Moreover, according to the Web site of the
Minister of Social Welfare, the government
claimed to have improved infrastructure in
Yahukimo in 2006. The advent of starvation,
however, raises questions as to what degree
of quality the projects were conducted.
Ironically, the government claims that poor
infrastructure has prevented the effective
distribution of aid.
Despite the shortage of food every year, the
government has failed to build a system to
prevent against starvation, a serious
violation against the right to adequate food.
Despite the fatal situation in Yahukimo in
2005, the government’s neglect and denial
has failed to prevent further deaths from
starvation this year.
It is important for the government to
understand that forming policy on the right
to food is not solely about providing food
for those suffering from hunger. The
concept of adequacy as guaranteed by the
ICESR is closely linked to sustainability,
which incorporates the notion of long-term
availability and accessibility. Thus, it’s not
sufficient for the government to only
provide food aid: It must take necessary
measures to ensure that such problems
cannot occur in the future. In order to attain
accessibility, it is also necessary for the
government to improve infrastructure in

LEMBAGA BANTUAN HUKUM MASYARAKAT

Yahukimo. This should be basic homework
for the president and his cabinet.

--

It is important for the
government to understand
that forming policy on the
right to food is not solely about
providing food for those
suffering from hunger. The
concept of adequacy as
guaranteed by the ICESR is
closely linked to sustainability,
which incorporates the notion
of long-term availability and
accessibility.
C A V E A T | october 2009 | 8

OPINION

Double Standards of Indonesian
Police
By: Answer C. Styannes *
Jakarta, Indonesia — Two vice chairmen of
Indonesia’s
Corruption
Eradication
Commission are under police investigation
for alleged abuse of authority. Yet lawyers
and activists have widely criticized the
investigation of Chandra M. Hamzah and
Bibit Samad Riyanto, suggesting the two are
being persecuted because the police hope to
weaken the commission and undermine its
effective anti-corruption efforts.
Rivalry between the two law enforcement
institutions surfaced in July 2009, when the
commission began investigating the
national
police’s
chief
detective,
Commissioner General Susno Duaji, for
allegedly using his power to force Bank
Century to return a large amount of
deposited funds to their owner unlawfully.
In return, it is alleged, Duaji received 10
billion rupiah (US$1.06 million).
The commission’s investigation of Duaji is
widely believed to have triggered the police
investigation into the alleged abuse of
power by the two commissioners. This view
is strengthened by the fact that the police
charge was inconsistent and apparently
fabricated – the police first said that the
commissioners were involved in bribery but
later said it was abuse of power.
This lack of professionalism is not new
among Indonesia’s police. In this case the
police reprisal against the anti-corruption
commission was on the national level, but
such behavior also prevails at the grassroots
level.
For example, a case came to light recently in
which an underage girl was raped by a 40year-old man. Her family filed a complaint
with the Jakarta police, but no proper
inquiry was conducted. Worse, after her
LEMBAGA BANTUAN HUKUM MASYARAKAT

family found the perpetrator and brought
him to the police station, instead of
detaining him the police released him, citing
lack of evidence.
In cases such as torture and other police
abuses, victims are often reluctant to
complain to the police because they are
asked to provide witnesses and other
evidence. As police torture and abuses take
place in a closed setting, it is hard to fulfill
such requirements.
The only witnesses in a torture case are the
police officers themselves. It would be rare
for an officer to testify against his colleagues
and support the victim’s complaint.
The police are guilty of negligence in some
cases, and abuse of power in others, as is
evident from the different handling of the
cases involving the commissioners and the
young rape victim. While the police acted
swiftly to investigate the commissioners,
they neglected their duty concerning the
young girl.
These are common problems reflecting the
lack of professionalism within Indonesia’s
police force. The police often fail in their
duty. When they are supposed to respond
quickly, they are often overly cautious. And
when conditions require that they react
with care, rash measures are taken.
Professionalism in the police force is
important, as it is closely related to human
rights enforcement. It is a police obligation
to protect human rights. An unprofessional
police force can impede people’s access to
justice, as it is the only institution with the
authority to handle almost all criminal
cases.
C A V E A T | october 2009 | 9
Furthermore, instead of implementing their
slogan “to serve and protect,” Indonesia’s
police have caused distrust in people about
law enforcement. As a famous cynical saying
goes, “Complaining to the police about your
lost chicken will only cause you to lose your
goat.” This describes the state of policing in
Indonesia.
Distrust toward the police can lead to social
unrest if people start taking the law into
their own hands, as was seen recently in
Pelalawan, Pekanbaru when angry residents
attacked a red light district, smashing
property and setting fire to buildings.
If the police could so hastily launch an
investigation into the two commissioners
who threatened them, they should be able
to quickly launch their own internal
reforms, as misconduct within the force in
the long term is a much bigger threat to the
cause of law enforcement they are pledged
to protect.

-(Answer C. Styannes is a research associate at the
Community Legal Aid Institute in Jakarta,
Indonesia. She is currently studying in the Faculty
of Law at the University of Indonesia, majoring in
constitutional law. Her work focuses on issues of
constitutional law, judicial and legislative
reforms, labor laws, and civil and political rights.)

-This article was originally published on 7
October 2009 at:
http://upiasia.com/Human_Rights/2009/10/07/
double_standards_of_indonesian_police/6551/

LEMBAGA BANTUAN HUKUM MASYARAKAT
C A V E A T | october 2009 | 10

About LBH Masyarakat
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)
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.
LEMBAGA BANTUAN HUKUM 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.
C A V E A T | october 2009 | 11

Lembaga Bantuan Hukum Masyarakat
Tebet Timur Dalam III D, No. 2
Jakarta 12820
INDONESIA
P. +62 21 830 54 50
F. +62 21 829 15 06
E. contact@lbhmasyarakat.org
W. http://www.lbhmasyarakat.org

LEMBAGA BANTUAN HUKUM MASYARAKAT

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Caveat - VOLUME 05/I, OCTOBER 2009 - LBH Masyarakat

  • 1. CAVEAT INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS VOLUME 05/I, OCTOBER 2009 MAIN REPORT | Access to Justice: Illusion or Reality? Access to justice has been recognized as essential to supporting and empowering disadvantaged people and the ability to access justice enables lower socio-economic sectors to address and counter inherent biases in society, thereby creating a more democratic system of governance. However, reality speaks differently. Sudarman, an old poor guy, lost his hopes and goals in life when his home was destroyed. “My belongings meant nothing to me. It was only Rp 5 millions, but that money was my hard earned cash. I had planned to build a house in Solo but now it's gone there's nothing left. That eviction has crushed my dream,” he said. ADDITIONAL FEATURE | Learning from Hunger: Reflecting on Starvation in Yahukimo The Indonesian Social Services Christian Foundation (YAKPESMI) last month shocked the country by releasing a report that claimed 113 people had died from starvation in Yahukimo, Papua, between January and August this year. It was reported that bad weather had resulted in a scarcity of food as crops were destroyed and that heavy rain had led to a spike in diseases such as malaria and diarrhea. YAKPESMI reported that six districts were affected, including Langda, Bomela, Suntamon, Seradala, Talambao and Nipsan. Both central and local governments in the region have denied that the victims died from starvation. OPINION | Double Standards of Indonesian Police Two vice chairmen of Indonesia’s Corruption Eradication Commission are under police investigation for alleged abuse of authority. Yet lawyers and activists have widely criticized the investigation of Chandra M. Hamzah and Bibit Samad Riyanto, suggesting the two are being persecuted because the police hope to weaken the commission and undermine its effective anti-corruption efforts. www.lbhmasyarakat.org CAVEAT: Let her or him be aware
  • 2. C A V E A T | october 2009 | 1 CONTENT THE EDITOR’S CUT | 2 MAIN REPORT | 3 Access to Justice: Illusion or Reality? ADDITIONAL FEATURE | 6 Learning from Hunger: Reflecting on Starvation in Yahukimo OPINION | 8 Double Standards of Indonesian Police 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, Answer C. Styannes, Christine Tambunan, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Maryam Jamilah, Yura Pratama Special Adviser: Ella Davison Finance and Circulation: Zaki Wildan Address: Tebet Timur Dalam III D, No. 2, Jakarta 12820, INDONESIA Phone: +62 21 830 54 50 Fax: +62 21 829 15 06 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 LEMBAGA BANTUAN HUKUM MASYARAKAT
  • 3. C A V E A T | october 2009 | 2 THE EDITOR’S CUT This month’s CAVEAT provides insight into the fraught journey of minority groups to access justice, exemplified by the story of a man who was evicted from his home, lost his belongings and has struggled to receive any form of compensation. Access to justice has been recognized as essential to supporting and empowering disadvantaged people and the ability to access justice enables lower-socio economic sectors to address and counter inherent biases in society thereby creating a more democratic system of governance. However, reality speaks differently. Sudarman lost his hopes and goals in life when his home was destroyed. “My belongings meant nothing to me. It was only Rp 5 millions, but that money was my hard earned cash. I had planned to build a house in Solo but now it’s gone there’s nothing left. That eviction has crushed my dream,” he said. He submitted a civil lawsuit against the Jakarta government in the West Jakarta District Court in August, but there has been no clear resolution as no defendants have appeared before the court. Sudarman’s situation is far from unique in this country. His circumstances raise serious questions about accessibility to justice for the disadvantaged in Indonesia. Where does the onus lie to compensate his sufferings and losses? The additional feature in this CAVEAT tells of the dire starvation in the Yahukimo region in Papua. This article is a collaboration by LBH Masyarakat and the Asian Human Rights Commission. The Indonesian Social Services Christian Foundation (YAKPESMI) claims that 113 people have died from starvation in the region this year. It is vital that the government recognizes the need to not only provide food subsidies and aid, but to also invest in infrastructure in the area, to improve distribution, and implement longterm measures to ensure availability and accessibility to adequate food. This concept of adequacy is outlined in an article of the LEMBAGA BANTUAN HUKUM MASYARAKAT International Covenant of Economic, Social and Cultural Rights (ICESCR), of which Indonesia is a signatory. Last but not least, the opinion piece, “Double Standards of Indonesian Police,” written by Answer C. Styannes, explores the ongoing enmity between the Corruption Eradication Commission (KPK) and the National Police. The dispute sparked when the KPK began investigating the national police’s chief detective, Susno Duaji, for allegedly using his power to force Bank Century to unlawfully return a large amount of deposited funds to their owner. In return, it is alleged, Duaji received Rp 10 billion (US$ 1 million). It is argued that the National Police have acted unprofessionally in investigating two deputy commissioners at the KPK. It has been claimed that the deputies are being persecuted because the police hope to weaken the commission and undermined its effective anti-corruption efforts. Professionalism in the police force is vital as it is closely related to human rights enforcement. It is a police obligation to protect human rights. An unprofessional police force can impede people’s access to justice, as it is the only institution with the authority to handle almost all criminal cases. We hope the three features presented in this edition of CAVEAT will provide a clearer and more concise understanding of the rule of law, human rights, and democracy in Indonesia. Thank you for your ongoing support! - The Editor
  • 4. C A V E A T | october 2009 | 3 MAIN REPORT Access to Justice: Illusion or Reality UNDERSTANDING ACCESS TO JUSTICE Access to justice has been recognized as essential to supporting and empowering disadvantaged people. The ability to access justice enables lower socio-economic sectors to address and counter inherent biases in society, thereby creating a more democratic system of governance. Access to justice is defined by the UNDP as The right of every person — irrespective of race, religion, gender, disability and class — to utilize the legal systems, both formal and informal, to attain justice in a situation of inequity. Access to a formal framework of justice is a basic human right and has proven essential in the fight to eradicate poverty, resolve conflict and reconcile the injustices affecting those living at the margins of society. Without a means to a fair and just legal structure, society becomes further fractured, often to the detriment of minority groups, particularly along the lines of race, religion, gender, disability and class. It should be recognized that both formal and informal institutions have key roles to play in the dispensation of justice. A GLOBAL PERSPECTIVE The right to access justice systems is consistent with the ethos of the Millennium Declaration of the United Nations Development Program (UNDP) and the fulfilment of its Millennium Development Goals, of which Indonesia is a signatory. Worldwide, it is recognized that difficulty accessing justice is inexorably linked to poverty as disadvantaged people often LEMBAGA BANTUAN HUKUM MASYARAKAT suffer without an advocate in the formal sector. It is therefore vital that minority groups must be able to access justice via a range of means. Across the formal and informal sectors, this can include police, the courts, social workers, community leaders, religious leaders and representatives from NGOs. Key to this right is the importance of legal awareness; as with most efforts made to combat poverty, the crux is education. Minority groups cannot access justice if they are unaware of their rights. It is the responsibility of a democratic parliament to inform their constituents of their rights and entitlements in a transparent and easily accessible manner. An approach that targets the needs of the poor is far more effective than a broader education campaign. Recognizing the needs and pitfalls of minority groups enables a government to combat the lack of information among the uneducated. CLOSER TO HOME President Susilo Bambang Yudhoyono has cited his crusade against corruption as key to the country’s development. While we applaud the president’s campaign, a more focused approach to the nation’s poor is needed, especially in Access to a regards to access to justice. Targeting the needs of the poor is paramount to the dispensation of legal assistance. Issues such as housing, matters of personal finance and taxation, health formal framework of justice is a basic human right and has proven essential in the fight to eradicate poverty, resolve conflict and reconcile the injustices affecting those living at the margins of society.
  • 5. C A V E A T | october 2009 | 4 care and the resulting medical bills, and voluntary and involuntary migration are widespread among minority groups and often result in crippling expenses. Unfortunately, the majority of these cases fail to grasp the public’s attention. Recent high profile cases include those of Prita Mulyasari, imprisoned for a month under the Information and Technology Law for allegedly defaming a private hospital in an email to friends; the battle for compensation by the residents of Sidoarjo after their homes were destroyed by a mudflow; and that of Siti Hajar, who was abused for three years and suffered severe burns at the hands of her Malaysian employee. While public outrage, fueled by the proliferation of social media networking, has raised the profiles of these cases, a lack of legislation specifically designed to protect the poor indicates that disadvantaged groups will continue to suffer in Indonesia unless the House of Representatives focuses its attentions on expanding and facilitating a better path to justice. LONG JOURNEY TO PURSUE JUSTICE Sudarman is seeking justice. In 2003, he became homeless when his house was destroyed by Tramtib Pemda DKI Jakarta (Ketentraman dan Ketertiban Pemerintah Daerah) and he lost all of his belongings. Sudarman acknowledges that he was living in the area illegally and that he didn’t own the house or land. However, during the demolition, for which there was no prior warning, he lost belongings valued at Rp 5 million ($500) – his life’s work. “Is there any law in this universe that allows the destruction of another’s belongings? If the answer is no, I deserve to exercise my rights,” he says. For the past six years, this belief has kept Sudarman on the path to access justice so he can receive compensation for his losses. In 1970, the father of five migrated from Solo to Jakarta to seek a better life. He owned a water cart and would sell water to residences in Jembatan Besi, West LEMBAGA BANTUAN HUKUM MASYARAKAT Jakarta, and would help his neighbors with manual labor. He lived away from his family, sending Rp 1 million ($100) per month back to Solo for school fees. The problems started in 1994, when PT Cakra Wira Bumi Mandala bought the land in Jembatan Besi, with plans to “Is there any law in this build a mall and apartment universe that allows the buildings. Because of his destruction of another’s lack of ownership, belongings? If the answer Sudarman says he was is no, I deserve to exercise willing to move when the my rights,” time came. “But I was still allowed to stay there, so there I was.” The company’s plans for development did not run smoothly, and the building commencement was postponed numerous times. During that period, new residents arrived and built illegal homes on the land. In 2003, an eviction notice was circulated among the residents. “More than once, I was asked to guard the area with the new residents. But I rejected the offer. I never agreed with their decision to stay with the houses and land. We were just boarding and did not have any right to be there.” On Aug. 1, 2003, Sudarman returned to Solo to celebrate Independence Day with his family. Upon his return to Jakarta a month later, he discovered that his home had been destroyed and his personal belongings were gone. He had never been informed of the official eviction date and he claims that PT Cakra Wira Bumi Mandala never sent representatives to inspect the area. Sudarman not only lost his house and belongings, but also his means of employment, as his water cart was destroyed in the process. However, he says that this paled in comparison to the distress caused by the demolition. “My belongings that were broken and lost mean nothing to me. They were only worth about Rp 5 million but that money was my hard-earned cash. I had planned to build a house in Solo but now it’s gone there’s nothing left. That eviction crushed my dreams,” he says. Sudarman’s children have been forced to drop out of school and his wife now works as a maid. He cannot afford to return to Solo.
  • 6. C A V E A T | october 2009 | 5 In a bid to seek retribution, he met with representatives from the Jakarta City Administration, National Human Rights Commission (Komnas HAM) and an established legal aid institute to present his case. However, despite his efforts, Darman’s case failed to progress and he alleged the institutions treated him poorly. Darman’s situation is far from unique in this country. His circumstances raise serious questions about accessibility to justice for the disadvantaged in Indonesia. Where does the onus lie to compensate Darman for his suffering and losses? Every Indonesian has a right to access a wholly fair and structured justice system. A lack of such a system undermines this country’s democratic governance and leaves its citizens feeling disenfranchised and discontented. Sudarman is now suing the company through the West Jakarta District Court. Figure 1| Sudarman, while showing his lawsuit document A WAY FORWARD Sudarman’s situation exemplifies the vicious circle of poverty and disempowerment that affects minority groups. His lack of formal education and severe disabilities prevent him from entering the formal work sector, and has even hindered his attempts to earn a living in the informal sector. A resulting shortage of funds and the daily struggle to survive have prevented him from accessing various paths to justice, as he has been, up until this point, unable to raise awareness of his case, or access the appropriate paths of redress. A myriad of agencies and information has left the plaintiff confused as to where to turn for legal assistance. A structured government system, overseeing both formal and informal representatives of the justice system, could address this problem and give minority groups a better chance at accessing and achieving justice. -- LEMBAGA BANTUAN HUKUM MASYARAKAT A structured government system, overseeing both formal and informal representatives of the justice system, could address this problem and give minority groups a better chance at accessing and achieving justice.
  • 7. C A V E A T | october 2009 | 6 ADDITIONAL FEATURE Learning from Hunger: Reflecting on Starvation in Yahukimo This article is developed by LBH Masyarakat in partnership with the Asian Human Rights Commission INTRODUCTION The Indonesian Social Services Christian Foundation (YAKPESMI) last month shocked the country by releasing a report that claimed 113 people had died from starvation in Yahukimo, Papua, between January and August this year. It was reported that bad weather had resulted in a scarcity of food as crops were destroyed and that heavy rain had led to a spike in diseases such as malaria and diarrhea. YAKPESMI reported that six districts were affected, including Langda, Bomela, Suntamon, Seradala, Talambao and Nipsan. Both central and local governments in the region have denied that the victims died from starvation. Despite disagreeing with the report’s findings, the local government decided to send food and medical aid to the affected areas. Three hundred tons of rice were distributed, starting with Walma district on Sept. 18. Various sources, however, have reported that only 16 tons of rice were distributed to 11 districts while the other 16 — including Langda, Bomela, Suntamon and Siradala districts — haven’t received any food aid since Oct. 10. In a meeting with the minister for social welfare, Ones Pahabol, chief of Papua regency, said it was difficult for the local government to distribute food and medical aid due to transportation problems in the isolated and remote areas, which can only be reached by helicopter. Food shortages are not unusual for the residents of Yahukimo. In 2005, it was reported that 55 people died of starvation, a claim that was again denied by the government. Interestingly, even though LEMBAGA BANTUAN HUKUM MASYARAKAT officials refused to acknowledge that the victims died from starvation, government measures at the time indicated that that was indeed the real problem. According to a report published on the Web site of the Ministry of Social Welfare, one million kilos of rice and approximately 284 kilograms of sweet potatoes were distributed to affected areas. The government also claimed that in 2006, 12 food storage facilities were built and seeds for crops were distributed for free. The storage facilities, however, remain unused. ALERTING HUNGER The right to adequate food as a fundamental human right is recognized in the 1996 Food Law. The law also states that availability of safe, nutritious and good quality food is requisite, and must be ensured by a system provides protection for the purposes of health and to play a larger role in increasing the prosperity and welfare of the people. Moreover, Section 17 of Article 1 in Chapter 1 states, “Food security is the condition in which the provision of food for households is reflected by the availability of sufficient food both in its quantity and quality.” As a state party of International Covenant of Economic, Social, and Cultural Rights (ICESCR), the Indonesian government has an obligation to take steps with a view to achieving the full realization of the rights in ICESCR, including the right to adequate food as enshrined in Article 11 of ICESCR. “The state parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through inter needed: a) To improve methods of production, conservation, and distribution of food by making full
  • 8. C A V E A T | october 2009 | 7 use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; b) Taking into account the problems of both food importing and food exporting countries, to ensure an equitable distribution of world food supplies in relation to need”. In hindsight, it is regrettable that the government only provided short-term measures during the 2005 food crisis. These measures have failed to prevent starvation in the area. Moreover, according to the Web site of the Minister of Social Welfare, the government claimed to have improved infrastructure in Yahukimo in 2006. The advent of starvation, however, raises questions as to what degree of quality the projects were conducted. Ironically, the government claims that poor infrastructure has prevented the effective distribution of aid. Despite the shortage of food every year, the government has failed to build a system to prevent against starvation, a serious violation against the right to adequate food. Despite the fatal situation in Yahukimo in 2005, the government’s neglect and denial has failed to prevent further deaths from starvation this year. It is important for the government to understand that forming policy on the right to food is not solely about providing food for those suffering from hunger. The concept of adequacy as guaranteed by the ICESR is closely linked to sustainability, which incorporates the notion of long-term availability and accessibility. Thus, it’s not sufficient for the government to only provide food aid: It must take necessary measures to ensure that such problems cannot occur in the future. In order to attain accessibility, it is also necessary for the government to improve infrastructure in LEMBAGA BANTUAN HUKUM MASYARAKAT Yahukimo. This should be basic homework for the president and his cabinet. -- It is important for the government to understand that forming policy on the right to food is not solely about providing food for those suffering from hunger. The concept of adequacy as guaranteed by the ICESR is closely linked to sustainability, which incorporates the notion of long-term availability and accessibility.
  • 9. C A V E A T | october 2009 | 8 OPINION Double Standards of Indonesian Police By: Answer C. Styannes * Jakarta, Indonesia — Two vice chairmen of Indonesia’s Corruption Eradication Commission are under police investigation for alleged abuse of authority. Yet lawyers and activists have widely criticized the investigation of Chandra M. Hamzah and Bibit Samad Riyanto, suggesting the two are being persecuted because the police hope to weaken the commission and undermine its effective anti-corruption efforts. Rivalry between the two law enforcement institutions surfaced in July 2009, when the commission began investigating the national police’s chief detective, Commissioner General Susno Duaji, for allegedly using his power to force Bank Century to return a large amount of deposited funds to their owner unlawfully. In return, it is alleged, Duaji received 10 billion rupiah (US$1.06 million). The commission’s investigation of Duaji is widely believed to have triggered the police investigation into the alleged abuse of power by the two commissioners. This view is strengthened by the fact that the police charge was inconsistent and apparently fabricated – the police first said that the commissioners were involved in bribery but later said it was abuse of power. This lack of professionalism is not new among Indonesia’s police. In this case the police reprisal against the anti-corruption commission was on the national level, but such behavior also prevails at the grassroots level. For example, a case came to light recently in which an underage girl was raped by a 40year-old man. Her family filed a complaint with the Jakarta police, but no proper inquiry was conducted. Worse, after her LEMBAGA BANTUAN HUKUM MASYARAKAT family found the perpetrator and brought him to the police station, instead of detaining him the police released him, citing lack of evidence. In cases such as torture and other police abuses, victims are often reluctant to complain to the police because they are asked to provide witnesses and other evidence. As police torture and abuses take place in a closed setting, it is hard to fulfill such requirements. The only witnesses in a torture case are the police officers themselves. It would be rare for an officer to testify against his colleagues and support the victim’s complaint. The police are guilty of negligence in some cases, and abuse of power in others, as is evident from the different handling of the cases involving the commissioners and the young rape victim. While the police acted swiftly to investigate the commissioners, they neglected their duty concerning the young girl. These are common problems reflecting the lack of professionalism within Indonesia’s police force. The police often fail in their duty. When they are supposed to respond quickly, they are often overly cautious. And when conditions require that they react with care, rash measures are taken. Professionalism in the police force is important, as it is closely related to human rights enforcement. It is a police obligation to protect human rights. An unprofessional police force can impede people’s access to justice, as it is the only institution with the authority to handle almost all criminal cases.
  • 10. C A V E A T | october 2009 | 9 Furthermore, instead of implementing their slogan “to serve and protect,” Indonesia’s police have caused distrust in people about law enforcement. As a famous cynical saying goes, “Complaining to the police about your lost chicken will only cause you to lose your goat.” This describes the state of policing in Indonesia. Distrust toward the police can lead to social unrest if people start taking the law into their own hands, as was seen recently in Pelalawan, Pekanbaru when angry residents attacked a red light district, smashing property and setting fire to buildings. If the police could so hastily launch an investigation into the two commissioners who threatened them, they should be able to quickly launch their own internal reforms, as misconduct within the force in the long term is a much bigger threat to the cause of law enforcement they are pledged to protect. -(Answer C. Styannes is a research associate at the Community Legal Aid Institute in Jakarta, Indonesia. She is currently studying in the Faculty of Law at the University of Indonesia, majoring in constitutional law. Her work focuses on issues of constitutional law, judicial and legislative reforms, labor laws, and civil and political rights.) -This article was originally published on 7 October 2009 at: http://upiasia.com/Human_Rights/2009/10/07/ double_standards_of_indonesian_police/6551/ LEMBAGA BANTUAN HUKUM MASYARAKAT
  • 11. C A V E A T | october 2009 | 10 About LBH Masyarakat 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) 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. LEMBAGA BANTUAN HUKUM 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.
  • 12. C A V E A T | october 2009 | 11 Lembaga Bantuan Hukum Masyarakat Tebet Timur Dalam III D, No. 2 Jakarta 12820 INDONESIA P. +62 21 830 54 50 F. +62 21 829 15 06 E. contact@lbhmasyarakat.org W. http://www.lbhmasyarakat.org LEMBAGA BANTUAN HUKUM MASYARAKAT