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The Spectrum of Politics, Law, and Human Rights in Indonesia: Between Individual and Community

Dr Syahrul Hidayat
University of Exeter, UK and University of Indonesia


Panel Abstract

The joint research by the Ministry of Law and Human Rights, USAID, The National Planning Bureau (Bappenas) and the Centre of Law and Policy Indonesia demonstrates that the development of law in Indonesia after ‘1998 Reformasi’ has indicated hyper legislation or legal explosion. Based on that finding, this research is purposed to examine the phenomenon of hyper legislation in Indonesia and its impact on human rights and legal philosophy of Indonesian criminal law system. This paper uses Regulatory Impact Analysis which focuses on the assumption of planning, fulfilling and the impact of a certain legal policy. It means that this research will evaluate the National Legislation Program (Prolegnas) proposed by the parliament in drafting and adopting a certain legislation.

This research indicates that the Prolegnas has actually forced Indonesia in a hyper regulation situation because all regulations, either specific or general legislations should mention criminal sanction as one of the compulsory elements. This legal paradigm brings about exaggerated criminalization and misleading legal philosophy of criminal legal system in Indonesia. One indication from this hyper legislation is the emergence of overload prisons around Indonesia. As a consequence, the capacity of prison cannot cover all prisoners and decreases the quality of legal capacity building for prisoners. This hyper legislation also brings about the riots which occur in some prisons in Indonesia.

This research assumes that the enactment of hyper legislation brings about human rights violation as this legal perspective solely depends on criminal sanction as a primary element of the legislation. In fact, the enactment of legislation should consider its quality rather than targeting the quantity and the usage of criminal sanction should be noted as the last instrument to preserve public order.


Paper 1: Avoiding the Court, Justice Matters? Socio-Legal Inquiry of Press Legal Cases in Indonesia

Herlambang P. Wiratraman
Leiden Law School and Airlangga University

Getting involved with the court in Indonesia seems problematic for journalists at local level. While mostly people understood that press freedom is considered freer than authoritarian regime of Soeharto, it does not automatically affect to local journalists who have been often facing brutal attacks or violence against the press. While Indonesia’s reformation has been widely known affecting the court reforms, the fact that justice is still far reaching for journalists if they deal with a complicated judicial system. Yet, the internal pressure from media owner or editor to withdraw the case led to a very frustrated way for journalists to get more legal protection.

In that regards, avoiding the court is a serious matter for journalists to consider whether or not they bring justice before the judicial system. Judiciary is not always used to solve the problem on press legal cases, although avoiding the court is not fully accepted by other journalist groups or even among their group. They are aware that the ineffectiveness or even distrust of judicial mechanism and lack of protection are the most serious problems for journalist or editor to deal with the court or other judicial processes. However, the paper argues that avoiding the judiciary does not always relate to distrust over the judicial system, but it is more a ‘forced situation’ (situasiketerpaksaan), and it might led to the systematisation of impunity. By using socio-legal research method and taking several case studies, the paper dissects to what extent avoiding the court could be fairly considered as possible justice for journalist in the injustice situations in decentralized Indonesia.


Paper 2: Examining Religious Freedom for Religious Minorities within Islam in the Concept of Pancasila

Al Khanif
School of Oriental and African Studies and Jember University

Discussing the rights of minorities within Islam in the Indonesian context is unequivocally complex because the concept of religion, law, and religious freedom is differently understood by the government and Muslims. This interwoven legal system frequently challenges the rights of ‘non-mainstream Islam’in Indonesia such as Syiah, Ahmadiyah, Syncretistic Islam and other heterodox Islamic groups due to the influence of traditional Islamic orthodoxy and practices of customary Indonesian law. The mixture of Islam and customary laws in Indonesian legal positivism brings about the complex human rights enforcement in the country.

By using literature-based research, this paper is meant to comprehend the legal spectrum of forum internumfor all religions in Pancasila. The research evaluates the dimension of religious principle in Pancasila as the supreme legal canopy and how the application of this principle in the modern Indonesia is differently understood by Indonesian government overtime. This paper however opines that it is not possible to comprehensively understand Indonesian human rights spectrum especially to protect religious minorities within Islam without having accurate knowledge of Pancasila, because as an ideology and supreme source of law, Pancasila may be interpreted in relatively open ways but has always heavily depended on the regime and society in a particular era. It means that this paper will also evaluate religious principles of Pancasila from some legal perspectives such as Islam and international human rights to comprehensively scrutinize the challenge to protect religious minorities within Islam in Indonesia.


Paper 3: The Fighting Against Corruption in Indonesia: A Human Rights Perspective

Madja el Muhtaj
Medan State University

Corruption is not only reducing the society in realizing its dignified lives, but also destructive to the nation and global community. No region or country in the world is immune to the damages of public-sector corruption. This being the case, the international community has reached a consensus that the crime of corruption is a crime against the international community, through the United Nations Convention against Corruption of 2003 which had been ratified by the Government of Indonesia through Law No. 7 Year 2006. As a reflection of its commitment, Indonesia has issued a number of regulations and established independent institutions to fight against corruption such as the Commission of Anti-Corruption and the Court of Anit-Corruption. Even so, Indonesia in the 2011 corruption perception index (CPI) as reported by Transparency International still placed at lower half, which ranks 100th of 183 countries with a score of 3.0. It reflects that corruption is still rampantly implicated in the practices of state authority management.

This paper examines the development of patterns and trends of corruption in Indonesia as well as systematic measures which have been and will be done by the civil society and government in combating corruption. Through an analysis of international human rights instruments and national level, this paper also seeks to review the prevention efforts and the importance of new approaches in combating corruption through the mainstreaming of human rights particularly in Reformed Era in Indonesia since 1999. A human rights-based approach to development is strongly used to examine the achievements of Indonesian government in combating corruption by central government and local governments based on Indonesian National Action Plan on Human Rights (Ranham Indonesia) as enacted by the presidential regulations.