7 Critical Issues Absent from the Presidential Speech Commemorating the 73rd Indonesian Independence Day

ICJR notes seven issues that should have been mentioned by the President Joko Widodo to demonstrate his commitment in Nawacita which includes providing security to all citizens, criminal justice reform, enhancing public welfare, and of course, the mental revolution.

On August 16, 2018, President Joko Widodo delivered a presidential speech which was very important to note, showing the visions of the President in the future. Some of the government’s achievements have been mentioned in three speeches: the presidential speech commemorating the 73rd  Indonesian Independence Day which was on August 17, 2018, the President’s speech at the Annual Parliament’s Assembly 2018, and the presidential speech on the formulation of the 2019 State Budget Bill.

ICJR underlined some important points stated by the President, some of which must be appreciated as the President expressed his concern on these issues, such as speeding up the settlement of the cases relating to human rights violation in the past, strengthening the protection of human rights, tackling the problem of illegal drug dealing, and the strong commitment on mitigating and preventing corruption.

However, ICJR also notes that there are some issues that should have been mentioned by the president regarding the issues of law reform, protection of human rights, and equitable access to justice, especially in criminal justice areas which are also included in Nawacita. At least, there are seven critical issues failed to be addressed by the President on his speech that will be outlined below:

First, legal assistance. ICJR appreciates the establishment of the Legal Aid System Accreditation by the National Law Development Agency (BPHN) which has been successfully verified and accredited the Legal Aid Organization (OBH) in Indonesia as many as 405 organizations in 2016. However, the guarantee to access the legal aid throughout all regions in Indonesia still becomes a crucial problem. Out of the 405 OBH successfully accredited nationally, 49% of them (199 OBH) are located in Java and 43 of them are based in Jakarta. Such number is in stark contrast compared to the number of OBH in Sumatra island, amounted to only 88 OBH (21%). Even in Papua, only 8 OBH are found and they barely manage to obtain a “C” as their accreditation score. Meanwhile, access to legal aid is absolutely mandatory for defendants who cannot afford it and for the accused charged with more than 15-year imprisonment or capital punishment. Moreover, considering the enactment of the Law Number 16 in 2011 regarding legal aid, the government has committed to guarantee the constitutional right of every person to obtain recognition, security, protection, legal certainty and equal treatment when they are criminal justice system as the form of human rights protection. President Joko Widodo should maintain its commitment by improving the access to legal assistance throughout the nation.

Second, torture, cruel and inhuman treatment. The Government’s efforts to enter the criminalization of acts of torture into RKUHP needs to be appreciated. In addition, we also respect five state institutions namely the National Human Rights Commission (Komnas HAM), the National Commission on Violence Against Women (Komnas Perempuan), the Indonesian Child Protection Commission (KPAI), the Witness and Victim Protection Agency (LPSK), and the Indonesian National Ombudsman creating a Memorandum of Understanding dated February 24, 2016 in order to prevent torture and other acts of cruel inhuman or degrading treatment in places of detention in Indonesia.

However, the extent of the commitment in implementing the MoU by those five institutions should be deeply observed. In the latest development, there are some government’s practices that in fact support the acts of torture, cruel, inhuman, or degrading treatment, for example, the use of the whip as the result of the implementation of Qanun Jinayat in Aceh. Furthermore, the government has introduced chemical castration through the Government Regulation in Lieu of Law Number 1 in 2016 concerning the Second Amendment of the Law Number 23/2002 on Child Protection. ICJR argues that such regulation is not effective in reducing the number of sexual abuse of children, the commitment of government’s anti-torture and cruel treatment is questioned instead. Worst of all, the initiative to ratify the Optional Protocol to the UN Convention Against Torture (Optional Protocol to the Convention Against Torture/OPCAT) in order to complete the ratification of the convention against torture has no longer become a priority. Again, the President’s commitment to enhancing human rights protection is questioned.

Third, the death penalty. The government indeed has a point in raising the issue of formulating rules concerning the imposition of the death penalty that would be a compromise between abolitionist and retentionist after the President instructed the execution of 18 people in three terms during 2015-2016. Recent development on the formulation of Indonesian Penal Code Bill shows that the government’s stand on the issue of the death penalty has become blurred and more unclear in which direction this policy will be drifted. The initial intention to compose a rule putting the death penalty as an alternative punishment rather than primary one and making it as the last resort in sentencing is no longer reflected in the government’s position since they change the mechanisms for imposing the death penalty to be put entirely under the judge’s discretion through their verdict. The President should reinforce its commitment to provide a win-win solution in determining the policy direction of the death penalty whilst instructing moratorium on the imposition of capital punishment until the formulation of the rules concerning capital punishment complete.

Fourth, drug abuse and illegal drug-dealing. The President clearly stated that the government will focus enormously on the fight against drugs in order to save the lives of thousands of young generation of the nation. Data from the Directorate General of Corrections at the Ministry of Law and Human Rights show that there have been 37.383 people imprisoned for drug abuse until July 2018. Meanwhile,  research conducted by ICJR reveals that the number of drug users and drug addicts may be three times higher than the amount of the Directorate General’s data because the Narcotics Law Number 35/2009 still contains some vague provisions resulting drug users and drug addicts being charged with the provisions specifically for a drug dealer and a drug lord. President forgot to mention the commitment to save the lives of the sons and daughters of the nation, including those who become the victims of drug abuse. Instead of being protected, they are put in jail. Besides being prone to the health issues, drug addicts and drug users are also the key populations vulnerable to HIV/AIDS, requiring more attention and should not be imprisoned. President forgot to announce decriminalization for the drug users and drug addicts through the revision of the Anti-Narcotics Law while providing infrastructure for rehabilitation and providing sufficient legal protection to avoid imprisonment.

Fifth, prison overcrowding. ICJR believes that there is no clear commitment shown by the government to solve the problem of overcrowding in detention centers and prisons in Indonesia. Data from the Directorate General of Corrections at the Ministry of Law and Human Rights reveal that as of May 2018, the occupancy level of detention and prisons in Indonesia reaches 201%. This condition has been regarded as an extreme overcrowding since the ratio of prisoners and prison capacity exceeds 150%. Indonesian criminal justice system puts imprisonment as the punishment that is still predominantly used and even overused. Statistic data from the report composed by the Directorate General of Corrections indicates that imprisonment is used almost 5 times more frequently than a non-incarceration type of punishment such as fine or probation. In 2017, prison riot occurred 6 times and prisoner escape occurred 30 times. Furthermore, an increase in the number of drug-related crime occurred in prisons reached 7459 in 2017 (more than 3 times from 2016). On the other hand, prison overcrowding also creates a huge opportunity for corruption and illegal levies because prisoners may have to provide their own personal needs or they wish to have a more decent and humane place to stay.

ICJR appreciates the step of the Ministry of Law and Human Rights publishing the Minister of Law and Human Rights Regulation Number 3 in 2017 on the Grand Design of Handling Overcrowded Prisons. It is stated in the regulation that one of the efforts to address prison overcrowding is through a criminal policy reform, introducing an alternative to imprisonment. However, such commitment is not in line with the proposal submitted by the drafting team of Penal Code Bill particularly from the member of Ministry of Law and Human Rights, which is also part of the government. The bill does not contain a complete provision concerning alternative to imprisonment. Instead, it reflects some excessive criminalization efforts, impressing a criminal policy that is more punitive. Shall the President is on the position of supporting the eradication of corruption and the protection of human rights, he needs to show a commitment by preparing some tactics to solve the problem of prison overcrowding in a systematic way.

Sixth, victim protection. With regards to the protection of crime victims, ICJR appreciates the Government and Parliament’ measure accommodating compensation mechanism and a new rehabilitation program for the victims of a terrorist attack into the amendment of Anti-Terrorism Law. The compensation mechanism was included on the policy recommendations previously proposed by ICJR. Nonetheless, the victim protection provided by the state in practice is still lacking. This is reflected in the case of “WA”, she is a child and a rape victim in Jambi. She was sentenced to six-month imprisonment due to abortion of the baby resulted from the rape. From this case, it appears that the state has been negligent in performing its duty to provide protection for the crime victim. The President must show its commitment on this issue, there should be an instruction to include specific aspects of victim protection on the bills that are or will be discussed with the Parliament. Such aspects should also ensure the participation of victims in the criminal justice system by means of restorative justice, compensation, or other possible measures.

Seventh, criminal policy reform. President mentioned some of the achievements of the state and the government’s commitment on the law reform, but one thing clearly missed by the government is how his vision and commitment will be addressed specifically on criminal policy. The commitment so far has been depicted through the revision of Indonesian Penal Code. Although the revision entails the idea of decolonialization, the bill appears to still include some typical colonial provisions by criminalizing those insulting the president and the state institutions, criminalizing homeless people, criminalizing those providing contraception tools. Moreover, the type of punishment also relies too much on imprisonment. ICJR admits that the government’s initiative to bring the discussion of Penal Code Bill to Parliament should be appreciated. However, the current bill is still not in line with the idea of enhancing the protection of human rights and civil liberties. Therefore,  President needs to show its commitment to reform criminal policy while upholding respect and protection of human rights and civil liberties and enabling equitable access to justice for all citizens throughout the nation

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