Australian Section of the International Commission of Jurists

(Ed. Note: This article is an excerpt from the Report on the Anti-Subversion Trials in Indonesia, compiled by the Australian Section of the International Commission of Jurists in March 1998. The commission is an international coalition of lawyers and judges who are committed to the rule of law and ensuring the maintenance of international human rights standards. Its Australian section has the responsibility for the Asia-Pacific region.)

The rule of law in Indonesia has long been a cause for concern. In 1963 President Sukarno proclaimed Indonesia’s notorious Anti-subversion Law. In the 33 years to January 1996 significant numbers of Indonesians were charged under this law and faced penalties ranging from 18 months to 15 years of imprisonment. The death penalty is available but has not been used in recent years.

In 1993 Megawati Sukarnoputri, the daughter of Indonesia’s founding president, was elected leader of the Democratic Party of Indonesia (Partai Demokratis Indonesia or PDI), one of the three authorised political parties. In June 1996 a breakaway group of PDI members with the support of the Indonesian government held a party congress in Medan with the aim of ousting Megawati from the leadership. Suryadi was elected as leader, despite ongoing demonstrations in support of Megawati.

At the close of the Medan Congress, members of the Suryadi faction announced that they intended to take control of the PDI offices in central Jakarta. In response, PDI members loyal to Megawati occupied the offices as protest against government interference in the PDI leadership. Political forums and demonstrations were held outside the PDI offices.

On 23 July 1996 the central Jakarta police stated that the forums were illegal as they were critical of the Indonesian government and that Megawati’s supporters were to be removed from the offices.

Early on 27 July 1996 truckloads of men claiming to be Suryadi’s supporters stormed the PDI offices. There was fierce fighting between the rival groups, with 100 people wounded. Later that day thousands of Megawati’s supporters returned to the area and rioting spread with the burning of offices, shops and cars.

While it is still uncertain who organised the initial attack on the PDI offices, the ensuing riots provided the Indonesian government with the pretext to arrest well-known critics and to lay charges under the Anti-subversion Law. Between July 1996 and January 1997, 15 leading Indonesian activists were arrested, interrogated and were facing trial.

Background to Muchtar Pakpahan’s Trial

Dr. Muchtar Pakpahan is the internationally respected head of the Indonesian Prosperous Workers’ Union (Serikat Buruh Sejahtera Indonesia or SBSI). He is a lawyer and long time critic of Indonesia’s labour laws. Following the riots on 27 July 1996, Pakpahan was arrested on 30 July 1996, and criminal charges were laid against him. In November 1996 the Supreme Court re-imposed the four-year prison sentence for another case that Pakpahan had been acquitted in October 1995. The lawyer was also charged under both the Anti-subversion Law and Article 154 of the Criminal Code which provides for up to seven years of imprisonment for expressing hostility, hatred or contempt against the Indonesian government.

Throughout the conduct of his trial in 1997 there had been serious concerns about Pakpahan’s health, resulting in the adjournment of proceedings in March 1997. There has been international requests that Pakpahan be allowed to leave Indonesia to undergo necessary laser treatment in Singapore or American. The Indonesian government refused all such requests. His trial recommenced in September 1997, but in recognition of his ill health the trial continues only on Thursdays rather than the usual two days per week. Even so, on some occasions hearings have been adjourned due to Pakpahan’s ill health.

In November 1997 the Canadian government raised the treatment of Pakpahan with President Suharto at the Asia Pacific Economic Cooperation Conference. The Indonesian government has agreed to allow Canada to send specialist doctors and medical equipment to treat Pakpahan in Jakarta. His trial continues every Thursday in South Jakarta District Court. (Ed. note: Pakpahan has recently been released, see report on page 28.)

Arrests and Trials of PRD Members

The People’s Democratic Party (Partai Rakyat Demokratis or PRD) is a small illegal left-wing political party of university students and social activists based mainly in urban centres in Java. On 29 July 1996, two days after the raid on the PDI offices and the subsequent riots, Lieutenant General Syarwan Hamid, head of ABRI’s (Indonesian Armed Forces) social and political affairs unit, focused publicly on the PRD’s role in the riots. He implied that there were similarities between the PRD and the banned Communist Party of Indonesia (PKI). During the following weeks the Indonesian authorities claimed that the PRD had orchestrated the riots.

This provided the justification for the arrest of leading PRD members. Between August and September 1996, 11 people closely associated with the PRD were arrested and detained at the Military Intelligence Unit. All 11 PRD members and associates were later charged under the Anti-Subversion Law and Article 154 of the Criminal Code.

However, Article 19 of the Universal Declaration of Human Rights states:

"Everybody has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

In violation of the above article, all the PRD defendants faced charges relating to their expression of anti-government political ideas and their participation in non-violent political or labour demonstrations. Some were also charged with spreading anti-government political ideas through books, pamphlets or via electronic media.

The general charges against all the PRD defendants related to their PRD membership and included the following claims:

• The PRD ideology is based on "social democracy," not State ideology of Pancasila;

• The PRD congress statement of June 1996 called for the repeal of Indonesia’s five political laws, the end of ABRI’s dual function, the repeal of the Anti-Subversion Law and self-determination for East Timor;

• The PRD manifesto promoted the aim of multi-party democracy; and

• The PRD aimed to become a mass organisation encouraging people to express hostility towards the Indonesian government.

The indictment for each PRD defendant also included primary and secondary charges which were specific to his role in the PRD or an affiliated organisation.

Monitoring of Trials

Following requests from the Indonesian Legal Aid Foundation and the International Bar Association, the Australian Section of the International Commission of Jurists (ASICJ) resolved in November 1996 to monitor these trials. Eight senior members of the Australian legal profession agreed to attend on these trials in Jakarta between January and March 1997.

The monitors were to observe hearings, hold discussions with judges, prosecutors, defence lawyers and relevant government and non-government organisations. The aim of the mission was to evaluate whether domestic and international legal standards and safeguards were being adhered to in these trials.

In all the trials observed during January to March 1997 in Jakarta District Court and South Jakarta District Court, there were clear and repeated breaches of both international and Indonesian standards for fair trial.

Lack of Justice in the Appeal Process

The International Covenant on Civil and Political Rights (ICCPR) states in Article 14 that "all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

Article 414.2(b) of the ICCPR provides that the minimum guarantees for a person facing any criminal charge includes the right "to have adequate time and facilities for the preparation of his defence...."

(a) Right To Appeal

Despite the irregularities in the trial process and the severity of their sentences, five PRD defendants Budiman Sudjatmiko, Garda Sembiring, Pranowo, Suroso and Kurniawan have been denied their right to an open and lawful appeal process.

Article 196(3) of Indonesian Criminal Procedures Code (KUHAP) provides that immediately after a criminal decision is handed down the chief judge is obliged to inform the defendant of the right to accept or reject the decision and to request time to study the decision.

Further, Article 233 of the KUHAP states that a request for an appeal is to be lodged within seven days from the date of the decision.

In addition, Article 236 of the KUHAP states that a defendant has the right to study the decision and the court file before the case is transferred to the Appeal Court for the appeal process.

At the time of their sentencing on 28 April 1997 the five PRD defenders indicated that they wished to appeal the decision. The defence lawyers lodged a statement of appeal with the Appeal Court, however, were unable to prepare the complete appeal brief until they received the written decision of the district court.

(b) Appeal Procedure Applied

On 23 June 1997 the Appeal Court rejected the appeals of all five defendants and increased their terms of imprisonment. The defendants did not receive either the district court decision nor the prosecution appeal documents until after the Appeal Court had finalised its decision.

The defendants were informed that their appeals had been rejected on 23 June, but not through official procedures. Budiman Sudjatmiko was in fact informed by reading the newspaper.

This blatant denial of the appeal process is in direct contravention of both the KUHAP and international guidelines as established by international instruments.

Because they were denied to access of the written decision of the Jakarta District Court and the prosecution brief, the five PRD defendants were denied both a fair hearing and adequate facilities to prepare their appeal applications.

Recommendations

In late 1997 and early 1998 the collapse of the Indonesian rupiah resulted in international focus on Indonesian bureaucratic, financial and legal processes. Notwithstanding this, the Indonesian government is continuing prosecutions under the Anti-subversion Law. The trial of Muchtar Pakpahan is ongoing while hearings commenced in January 1998 in the trial of Sri Bintang Pemungkas, an ex-parliamentarian who has been charged under both the Anti-subversion Law and the Criminal Code.

In the four weeks to 1 March 1998, over 400 Indonesians were arrested following discontent arising from the financial crisis facing their country. It is expected that the Anti-subversion Law will again be used to silence government critics. Indonesian authorities have in fact indicated that the Anti-subversion Law may be used against people who are hoarding food or who are involved in currency speculation. This indicates a widening of what the authorities accept as the meaning of "subversion."

In the context of the monitors’ reports and Indonesia’s ongoing reliance on the Anti-subversion Law, the ASICJ makes the following recommendations:

The Anti-subversion Law

1. The Anti-subversion Law should be repealed.

2. Pending this repeal, if there be a delay,

a. The Anti-subversion Law be immediately amended to ensure that all provisions of the KUHAP are extended to persons charged under the Anti-subversion Law;

b. The Anti-subversion Law be immediately amended to provide protection against torture and ill treatment for all persons charged under the Anti-subversion Law;

c. The KUHAP and Anti-subversion Law be amended to ensure that district courts provide convicted defendants with a full copy of the court’s decision within seven days of the date of sentence;

d. Legal professional privilege should be enshrined in the KUHAP and the Anti-subversion Law. Lawyers should be exempted from any prosecution or court investigation of their client’s actions or associations.

3. The KUHAP be amended to require that a full copy of the district court’s decision must be annexed to all applications for appeal to the High Court or the Supreme Court.

Muchtar Pakpahan

4. In view of the history of the breaches of Indonesian criminal procedure and trial irregularities, as well as his ill health, Pakpahan’s current trial be adjourned and he be permitted to leave Indonesia for medical treatment and convalescence.

PRD Defendants

5. Given that procedural violations were observed in the PRD trials at both Jakarta and South Jakarta District Courts and in the appeal process, all PRD defendants be permitted to apply to have their convictions reopened and re-examined in the context of procedural irregularities.

International Legal Observers

6. To avoid unwarranted hindrance at points of entry, the Indonesian government facilitate the entry into Indonesia of international legal monitors to observe the trials.

7. The Indonesian government establish clear procedures and authorities for monitors to view hearings and to meet with relevant legal personnel.