Reflections on 20 Years of Ignoring POLITICAL REFORM ON HUMAN RIGHTS ENFORCEMENT 

(Forgotten Martyr of Change)

IMPARSIAL (The Indonesian Human Rights Monitor)

“If it weren't for the events that happened to Suyat in early 1998, surely nothing would have changed that would have put them in the position they enjoy today. But, sadly they seem to have forgotten it all.”

(Suyatno, Suyat's older brother, one of the victims of the 1997/1998 kidnapping in "Remembering the Martyrs of Change" by Mugiyanto (Chairman of IKOHI 2002-2014))

All of us who are enjoying the current political situation that is free and open (read: democratic) actually have a "historical debt" to the victims who were martyred by change in the political upheaval to overthrow the authoritarian New Order regime in 1998. The above is not without basis, considering that Suyat and the pro-democracy activists who went missing in 1997/1998 have yet to be found. Meanwhile, leaders during the Reformation era seemed to lack the political will to uncover cases of enforced disappearances and to rediscover victims who were still missing.

The incident experienced by Suyat and his family's long waiting period for the disclosure of the incident is one small picture of the big picture of the poor enforcement of human rights in the Reformation Era, which in May is turning 20 years old. The Suyat case represents the whole bitter story of the victims and their families of victims of human rights violations who were put in uncertainty by the political elite to obtain the right to truth and justice. In fact, the power that they enjoy cannot be separated from the role of Suyat and other democracy fighters who have spoken out against the New Order regime for the sake of a democratic political life.

Although it is acknowledged that there were other factors that led to political change towards democracy in 1998, history cannot hide the role of these democracy fighters. The victims of the New Order's repressive actions, including those who were forcibly disappeared in 1998, encouraged the emergence of a spirit of resistance to overthrow the authoritarian New Order regime.

In the midst of the strength of the New Order regime and the threat of repressive measures at that time, it is hard to imagine democracy activists carrying out democratic actions against the regime. At a time when most of the public remained silent under the threat of the militaristic New Order regime, fearless pro-democracy activists moved against the regime. The communist stigma and accusations of disrupting security stability became a daily meal that was pinned to them, and even the threat of repressive actions from the regime did not frighten him. Confidence and aspiration to make changes seem to be a spirit that can not be defeated by the muzzle of a gun. Although the movement he did in the end led them to be eliminated.

Therefore, in the midst of the momentum of the Reformation Era which will mark the age of two decades on May 21st, it is important for us to remember the services of the victims who became martyrs for change and also realign the direction of the Reformation which seems to be getting away from the spirit and ideals. the ideals of the struggle for democracy in 1998.

IMPARSIAL views that the political reform process that has been carried out since 1998 has relatively encouraged democracy to be re-implemented in Indonesia. Mechanisms, procedures, and institutions that are the basic prerequisites of this political system have been built, as can be seen from the periodical elections, guarantees for political freedom, the establishment of supervisory institutions, and so on. However, this development in reality does not necessarily encourage the improvement of human rights conditions in a better direction, increasing the level of welfare, and the fulfillment of the right to justice. A number of reform agendas to achieve the ideals of democracy are now stagnating.

Political dynamics during the Reformation Era, which tended to be elitist, filled with inter-elite negotiations, and transactional were the main problems for the stagnation of the Reformation process, and even setbacks in several aspects. This tendency cannot be separated from the political dynamics characterized by oligarchy. In reality, oligarchic politics places politics only as a limited arena for elite groups and political parties in building a political agenda by marginalizing people's aspirations. In this political context, the agenda of human rights as a shared moral standard to create a dignified human life is hampered because in this situation politics is dominated by the struggle of oligarchic interests.

The oligarchic political trend is not something new because the symptoms and implications have been felt since the New Order era. What happened during the Reformation period was simply reorganizing power with a political style that remained oligarchic. Recent studies on democracy show that control over political domination is carried out through oligarchic bureaucracies to turn parties into mere machines for extracting votes from voters and their constituents. This oligarchic bureaucracy forms a cartel that is obliged to oppose its competitors as well as to limit competition, block access, and distribute political power gains among cartel members. It is they who then create a danger to democracy, by making it an individual project of some political party leaders and their corporatist associations that generate profits for them and protect their money from outsiders. Here, oligarchic politics is manifested in the form of transactional politics.

Transactional politics places everything in politics into something that is transacted among the political elite. At this point, the logic at work was to profit and barter interests among the elite. Bargaining for seats in the cabinet as well as negotiations and compromises in the struggle for parliamentary leadership is a necessity. Politics plunged into political trade and the black market of power. This kind of politics is neither what it should be nor what it wants to be. This is because politics in the real sense requires a transaction of justice, not a transaction of office, while the desired politics really wants balance and control in power, not power without control. This tendency makes politics no longer a place to push the ideal goals of politics, namely the good and the common life.

Meanwhile, political parties (Parpol) which should be instruments of formal political representation for the people in politics have actually become instruments that express the interests of the old oligarchs who have repositioned themselves in this new political system. Together with parliament, political parties become their tools to control resources which are not only to maintain their survival, but also to maintain their oligarchic power.

It was the oligarchic political dynamics that gave birth to a number of problems in political life during the 20 years of the Reformation Era, including marginalizing justice and populist agendas. Political oligarchy places law enforcement under the political interests of the transacting elites. The slogan "law above all things" is just a jargon and a series of beautiful words, because the actual practice is that the law is made subject to transactional political realities and does not take sides at all with the community's sense of justice.

Evaluation of the Fields of Law, Human Rights, and Security

IMPARSIAL considers that the dynamics of implementing the reform agenda in the fields of law, human rights, and security are also heavily influenced by the oligarchic and transactional political tendencies. The resulting impact is no longer just stagnation, but what is even worse is that some of these sectors have experienced a setback and a fairly large deficit has occurred.

The political pragmatism that characterizes oligarchic politics places the Reform agenda in these areas not seen as important, and sometimes even transacted. Therefore, efforts to implement the Reform agenda which has been mandated to encourage overall improvements in the fields of law, human rights, and security have been hampered because the political elite prioritizes the interests of seizing and controlling political power.

The practice of oligarchic politics has resulted in the neglect of efforts to uphold civil and political rights, while in the aspect of economic, social and cultural rights, it has resulted in the failure of the implementation of state obligations in efforts to fulfill these basic rights. Political oligarchy also places law enforcement under the pragmatic interests of the political elite. This condition can be seen in a number of sectors and cases of human rights violations.

In the field of law and human rights, the 20 years of Reformation have shown a number of paradoxes, not only at the level of legislation, but also in its implementation or enforcement. At the legislative level, for example, the reform process since 1998 is recognized as having produced a number of positive achievements in the form of strengthening the guarantee of citizens' human rights in laws and regulations, such as in the 1945 Constitution, Law no. 39 of 1999, and Law no. 12 of 2005 concerning Ratification of the International Convention on Civil and Political Rights. The normative guarantee of human rights is a positive progress of the 1998 Reformation process.

However, the paradox that appears in the context of legislation is evident from the emergence of a number of laws and policies that are vertically contradictory to the 1945 Constitution as the highest legal norm, but also horizontally between one law and another. The problem of disharmony of laws and regulations has indeed become a major problem in the legislative politics of the Reformation Era, the result of which is the existence of laws that guarantee human rights but there are also other laws which, on the contrary, threaten and limit freedom and human rights. For example, the MD3 Law, the Law on Ormas, the ITE Law, the Law on Handling Social Conflicts, as well as a number of government policies in the context of religion, such as the 3 Ministerial Decree on Ahmadiyah, and the increasing number of legal regulations that include the threat of the death penalty.

The issuance of a Government Regulation in Lieu of Law (Perppu) for Ormas, which was later ratified by the DPR, is a clear example of a legislative product that threatens freedom, namely freedom of association. Whereas the right to freedom of association is not only something that is essential for individuals and society, but also becomes an important political component of a good democracy in a country. And even, this freedom is mentioned as the heart of democracy. This freedom is closely related to other freedoms and human rights, such as freedom of opinion and expression, assembly, thought, belief, and religion. Furthermore, this aspect of freedom also functions as a means to exercise and fight for their human rights, be it civil and political rights as well as economic, social and cultural rights.

In the context of the implementation or enforcement of human rights, there are also a number of problems during the 20 years of the Reformation Era. Weak political will from the government to enforce human rights legal norms is the main factor. Whereas the existence of political will can be the key for the government to overcome the problem of disharmony in laws and regulations.

The resolution of cases of past human rights violations, which are still in limbo and have yet to find a clear solution, is another marker of the gray episode of the condition of human rights enforcement in Indonesia. Whereas efforts to resolve these cases have important meanings not only for the fulfillment of the rights to truth and justice of the past of the victims and or the families of the victims, but also for the journey of the Indonesian nation in the future. As long as these cases are not resolved, the agenda remains a looming historical debt.

Until now, not a single past human rights case has been successfully resolved, including during the Jokowi administration. Although Komnas HAM has completed investigations into a number of past human rights cases, the files are always returned by the Attorney General's Office under various pretexts. In addition, the attitude of the Attorney General also did not show good faith and strong political will to complete the agenda for resolving these cases. Meanwhile, for the case of enforced disappearances, which had received a recommendation for the establishment of a human rights court from the DPR in 2009, President Joko Widodo has not yet established it.

The failure to resolve cases of past human rights violations has opened up space for the alleged perpetrators who are responsible for these cases to enter the political space and even some of them are now occupying strategic public positions. Their presence is certainly an obstacle to solving these cases, because it is impossible for the person who is suspected of having problems to solve a case that actually involves him.

In the issue of freedom of religion or belief, although our constitution guarantees the right of every citizen to have a religion or belief, threats and violations of this right to freedom are rampant in a number of areas. The state seems to be absent to provide optimal protection for the enjoyment of this freedom.

Violations of this freedom can be seen in a number of patterns, ranging from rampant acts of intolerance allowed by state officials, high levels of punishment under the pretext of blasphemy against religion, destruction and prohibition of places of worship in a number of areas, as well as discrimination on the basis of religious identity that many minority groups experience. such as discrimination in population and social administration services to the Ahmadiyya congregation.

One of the main problems in the context of freedom of religion and belief in Indonesia is the product of legislation and policies that are in harmony with one another. The existence of these regulations and policies, in fact, is often used to limit freedom of religion and belief in society, not only by radical and intolerant religious groups but also by the government.

In the promotion and protection of the right to life, Indonesia was in the spotlight during the Reformation Era. IMPARSIAL noted that there have been 84 executions in Indonesia since the 1960s, with 45 of them being carried out during the Reformation Era. Moreover, since the beginning of reformation until May 2018, there have been 303 new death sentences at various levels of the court, with 175 of them being handed down under President Jokowi. The continued practice of the death penalty is an indicator of the government's weak political commitment in promoting and protecting the right to life.

In the context of guarantees and protection for freedom of expression, it still shows a high level of violations. This can be seen from the rise of cases of restrictions, prohibitions, disbandment of discussion activities and screenings of films about the 1965 case in a number of areas.

In the context of protecting human rights defenders, human rights defenders who are an integral part of advocacy to encourage respect for, promotion and protection of human rights are still considered as disturbances and threats. Human rights defenders often face various forms of restrictions, violence, and criminalization in their work. In fact, human rights defenders play an important role not only in realizing human rights goals globally, but also national goals themselves. At the national level, human rights defenders play a role in encouraging the realization of the ideals of the founding of the Indonesian state as mandated by the Constitution. Human rights defenders oversee the ongoing functioning of democracy and the implementation of human rights legal norms, especially in advocating for victims of cases of human rights violations.

The resolution of the murder case against human rights activist Munir also did not show any significant progress. The case of Munir's murder is 14 years since he was poisoned on September 7th, 2004 aboard a Garuda Indonesia flight. The investigation remains questionable, with the intellectual actor behind his murder still roaming free.

Disclosure of the Munir murder case is one of the important agendas for upholding human rights. The unfinished investigation of the case has strengthened the government's weak commitment to upholding human rights.

Meanwhile, the results of the investigation by the Fact Finding Team (TPF) in the Munir case which was formed during the reign of President Susilo Bambang Yudhoyono (SBY) indicate that there is a strong suspicion that the murder of human rights activist Munir allegedly involved elements of the State Intelligence Agency (BIN). However, the results of the investigation, which could actually be the initial door to open and reveal the case, have instead been followed up but so far have not been opened and disclosed to the public. The results of the TPF investigation are very important because they indicate a number of irregularities and at the same time there is a strong suspicion that the killings allegedly involved field actors and the masterminds of the killings within state intelligence institutions.

In addition, cases of violence against human rights defenders continued to occur during the Reformation period, including the murder of Salim Kancil, an environmental activist who opposed illegal sand mining in Lumajang, the shooting of Mathur Husairi, an anti-corruption activist in Madura, East Java, and the persecution of Latifah Anum Siregar. , activist for the struggle for human rights enforcement in Papua.

In the context of security sector reform (Security Sector Reform), the process of the Reform agenda in this field, especially TNI reform, also shows a stagnant condition. This reality can be seen from the lack of implementation of a number of TNI reform agendas that were mandated at the beginning of the 1998 Reformation.

IMPARSIAL notes that there are at least seven notes on the TNI reform agenda that are homework. The first is the restructuring of the Territorial Command (Koter). The restructuring of the Koter was one of the TNI reform agendas promoted by the student movement and other democracy activists at the beginning of the 1998 Reformasi. This agenda was voiced in a package with the agenda of eliminating the socio-political role of ABRI—now TNI—which was known as the dual function of ABRI. Along the way, although the political role of ABRI/TNI has been removed, the Koter structure has not yet been restructured and is still being maintained. In fact, the existence of Koter is growing in line with the expansion or formation of new provinces and regencies in Indonesia. The latest expansion can be seen from the formation of a new Military Regional Command (Kodam) in West Papua which will of course be followed by the formation of subordinate territorial structures, such as the Military Resort Command (Korem) and the Military District Command (Kodim).

The restructuring of Territorial Commando (Koter) also aims to ensure that the TNI's strength title can support the TNI's role as a means of national defense. As a consequence of the restructuring and taking into account the strategic environment as well as the dynamics of the latest threats, it is necessary to immediately think about and form a TNI Posture model that emphasizes the development of a unitary and more integrated tri-partner force.

Next is the reform of the military justice system. Another TNI reform agenda that has not yet been implemented is the reform of the military justice system through amendments to Law no. 31 of 1997 concerning Military Courts. In fact, this agenda is one of the hearts of TNI reform. As long as the reform of the military justice has not been carried out, it can be said that the reform of the TNI has not been completed. Military justice reform is actually a mandate from Law No. 34/2004 on the TNI. Article 65 Paragraph (2) of the TNI Law states that "soldiers are subject to the power of military courts in terms of violations of military criminal law and are subject to the power of general courts in terms of violations of general criminal law regulated by law".

The various MoUs between the TNI and several ministries and agencies that have recently been formed are also wrong steps and contradict the TNI Law no. 34 of 2004 concerning the TNI. Until now, there are at least 40 MoUs (Memorandum of Understanding) between the TNI and other ministries and agencies that were formed within the framework of implementing TNI assistance tasks (military operations other than war). The various MoUs contradict Article 7 paragraph (3) of the TNI Law which states that to carry out military operations other than war, the TNI can only carry out its duties if there is a state political decision, in this case a presidential decision.

The dynamics of legislation and the spread of various MoUs have led to the strengthening of militarism. This little by little and step by step has the potential to place security governance as in the New Order era, which opened up space for the presence of a broad military role in domestic security and the civilian sphere. This dynamic is not in line with and not in the same breath as the direction of reform of the security sector and the life of a democratic state.

In the framework of increasing cooperation between defense and security actors, particularly the cooperation between the TNI and the National Police in dealing with gray areas and in dealing with contingency situations, the government must establish rules regarding the assistance task of the TNI and revise the Emergency Law. No. 23/1959 instead of submitting the National Security Bill in the national registration program (Prolegnas) and forcing its discussion in parliament.

Development of transparency and accountability in the procurement of defense equipment. The development of defense equipment as part of efforts to modernize and strengthen Indonesia's defense is indeed very important and necessary. However, this modernization effort must be carried out in a transparent and accountable manner. In practice so far, not only the procurement deviates from the policy of developing a defense posture, but is also full of allegations of mark-ups.

In a number of procurements, for example, some defense equipments purchased by the Indonesian government are below standard and sometimes do not match what is needed. In addition, procurement through the purchase of used defense equipment is also a problem. In fact, it is clear that there is a tendency that the procurement of used defense equipment always has a greater potential for problems. Not only burdening the budget for maintenance, but also the risk of accidents that threaten the safety and security of soldiers.

In addition, the procurement of defense equipment is often colored by the involvement of third parties (brokers). In some cases, their involvement sometimes has implications for alleged mark-ups in the procurement of defense equipment. Therefore, the procurement of defense equipment in the future should not involve third parties, but should be carried out directly in a government-to-government mechanism.

Transparency International released a survey entitled Government Defense Anti-Corruption Index 2015 which shows the risk of corruption in the military/defense sector. The survey stated that the risk of corruption in the military/defense sector in Indonesia is still relatively high (Indonesia gets a D). Transparency and accountability in the procurement of defense equipment is indeed a serious problem. The absence of the role and authority of independent institutions such as the Corruption Eradication Commission (KPK) which also monitors and oversees the procurement of defense equipment makes the procurement process prone to irregularities. As a result, transparency and accountability in the procurement of defense equipment becomes problematic. In fact, Indonesia's defense equipment budget uses large funds.

In an effort to encourage transparency and accountability in the procurement of the defense equipment, the government should encourage the role of independent supervisory institutions such as the KPK to supervise and investigate the use of the defense budget, or more specifically in the procurement. One of the efforts to encourage the role of the KPK, the first step that must be encouraged by the government and parliament is to reform the military judiciary through the revision of Law no. 31/1997. Even without waiting for the revision of the law, the KPK can be involved in monitoring and investigating allegations of irregularities in the procurement of defense equipment on the basis of the lex specialis derogat lex generalis principle.

TNI violence against the community and human rights defenders. Until now, violence perpetrated by members of the TNI against the community and human rights defenders still occurs in various regions. These cases of violence show that TNI reform has not yet been completed, especially in an effort to break the militaristic culture inherited from the authoritarian New Order regime. The motives for the acts of violence perpetrated by these members varied, ranging from motives for personal problems, forms of solidarity with the wrong corps, land disputes with the community, involvement in evictions, and violence against journalists and human rights defenders.

One of the cases that had received widespread attention from the public was the brutal actions carried out by members of the Indonesian Air Force and Paskhas against the community in Sari Rejo Medan Polonia, Medan City on August 15th, 2016. In this case, Indonesian Air Force personnel carried out violence against residents, destroyed houses and vehicles, as well as journalists who carried out the coverage were also victims.

Lastly, is the improvement of the welfare of TNI soldiers. As a means of national defense, the TNI has the main task of guarding the Indonesian defense area. Of course this is not an easy job. To carry out its main tasks, the TNI requires the completeness of the main weapons system which is adequate and the capacity of professional human resources.

With such a heavy and sacred task, it is only natural that the professionalism of the TNI is supported by increasing the welfare of the soldiers. So far, the strengthening of human resources related to the welfare of TNI soldiers is still minimal. The limited number of official residences for members of the TNI is an example of a soldier's welfare problem.

In some cases, the welfare problems of TNI members have led them to seek other sources of income apart from their salaries. Although strengthening defense equipment is a necessity, providing welfare guarantees for soldiers is an obligation that must be fulfilled by the state, as emphasized in Article 49 in conjunction with Article 50 of Law no. 34/2004. Another TNI reform agenda that has not yet been implemented is the reform of the military justice system through amendments to Law no. 31 of 1997 concerning Military Courts. In fact, this agenda is one of the hearts of TNI reform. As long as the reform of the military justice has not been carried out, it can be said that the reform of the TNI has not been completed. With this law, the TNI has its own legal regime in which TNI members who commit general crimes are tried in military courts. In practice, military justice is a means of impunity for members of the military who commit crimes. Even if there are punishments for members of the military who commit crimes, the sanctions are sometimes not optimal.

Police reform has also not been able to change the militarism culture within the Police institution. During the Reformation period, the Police institution became an actor who was also involved in various acts of violence against the community. The Police culture which is supposed to be more nurturing and protecting the public has not yet shown a perfect face in this Reformation era.

In addition, there are draft regulations and security policies that threaten democracy. The dynamics of security legislation shows negative developments with the emergence of a number of regulations that provide space for military involvement in domestic security and the civilian sphere at large, thus threatening democratic life and human rights. This can be seen with the emergence of the Bill on State Secrets and the Bill on National Security (Kamnas) which are included in the agenda of the 2015-2019 national legislation program (Prolegnas).

The State Secrets Bill and the National Security Bill are two pieces of legislation that have been widely rejected by civil society circles because they are considered a threat to democracy and the promotion of human rights. In fact, the urgency of the two bills is not needed.

In urgency, the State Secrets Bill is not needed because the regulation on state secrets has been explicitly regulated in the Public Information Disclosure Act (UU KIP) Number 14 of 2008 in particular Article 17 regarding exempted information. Substantively, the scope regulated in the Bill on State Secrets is very broad and rubbery in nature, so that it has the potential to destroy the foundations of democratic life, especially freedom of the press, hinder the eradication of corruption and hinder the enforcement of human rights. Meanwhile, the National Security Bill is also not urgently needed because the governance of the defense, security, and defense security sector has been regulated in the Constitution, MPR Decrees, and various defense and security laws such as the Defense Law, TNI Law, Police Law, Intelligence Law. , and other laws.

In addition, during the Reformation period, agrarian conflicts were rife in various places. This is as a result of agrarian inequality and injustice that continues to this day. Community access to land ownership is still limited. That's all because of the agrarian reform program mandated by TAP MPR No. 9 of 2001 concerning Agrarian Reform has not been fully implemented during this Reformation period.

On the other hand, the guarantee of the right to a decent wage that should be obtained by the workers has not been fully fulfilled. Tensions in determining minimum wage limits and neglect of labor rights are rife in various regions. Until now the state has not played a maximum positive role in fulfilling labor rights in Indonesia.

Legal reform is also still progressing slowly. In terms of legal culture, corrupt practices still occur at all levels of law enforcement institutions in Indonesia. The culture of violence is also still attached as a shortcut to obtain confessions from suspects. In terms of legal substance, the rule of law that was born during the Reformation period is also still a lot against human rights and democratic values.

The Papua conflict which continues to drag on and cannot be resolved properly by the government has given rise to many problems for the people in Papua. And in fact, the longer this conflict drags on, the more complex the problems in Papua become. In reality, the negative impact of the Papuan conflict is not only violence and human rights violations as a result of the (militaristic) security policies that are still being implemented in Papua, but also other human rights issues such as welfare, education, marginalization, and so on. In other words, the Papuan conflict has raised many injustice and humanitarian problems experienced by the Papuan people. With the conditions experienced by the Papuan people, efforts to resolve the Papua conflict through peaceful means have reached an urgent level to be carried out immediately.

In conclusion, Indonesian democracy is trapped in an oligarchic practice where politics is only an arena for contestation of the political elite so that the resolution of cases of human rights violations is not complete, corruption practices are rampant at almost all levels of state institutions, restrictions on freedom are carried out in the name of security, and others. Politics that took place in the Reformation Era showed how power was only seen as an effort to maintain and perpetuate the political interests of the regime rather than the political interests of the state and the interests of the community.

As a result, the settlement of cases of human rights violations are trapped in political transactions, corrupt practices are rampant, the protection of religious freedom is ignored, freedom of expression is restricted, freedom of organization is restricted, and other rights of the people that have been guaranteed in the constitution have been neglected. The reforms that are running have actually forgotten the role of the Reformation fighters who died in 1998.

Jakarta, May 9th, 2018

IMPARSIAL

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