http://www.thejakartaglobe.com/opinion/from-sumatra-to-papua-in-2011-rule-by-law-again-trumped-the-rule-of-law/488104 >From Sumatra to Papua, in 2011 Rule By Law Again Trumped the Rule of Law Nurkholis Hidayat | December 31, 2011
'The law has become an instrument for the government to legitimize its actions.' The current state of Indonesian law prompts me to question once again whether the rulers (the investors, political oligarchy, the majority) are the law, or whether the law is the ruler. This question comes to the fore because a number of incidents and human rights cases in 2011 appear to show that the legal and political conditions in Indonesia have suffered a significant decline. To try to answer the question, I would first like to start with the defiance against the law that has taken place throughout the years — and that, ironically, has been one of the hallmarks of the government. Disobedience is usually thought of as a term used to describe citizens. While the motivation for defying the law may vary, it is often a conscious rejection of a legal system that has been deemed unfair or oppressive. In other words, it is a decision made by someone who has a critical legal consciousness and is not a result of ignorance of legal matters. In Indonesia, however, disobedience is often practiced by lawmakers and law enforcers themselves — the very people in the business of creating a society based on law and order. The mayor of Bogor refused to abide by the verdict of the Supreme Court in the case concerning the judicial review sought by the GKI Yasmin church. The president and the education minister both refused to respect the Supreme Court verdict that declared the National Examination as violating the right to education. The health minister, the Food and Drug Agency (BPOM) and the Bogor Institute of Agriculture all refused to comply with a Supreme Court verdict demanding that they announce the name of formula milk tainted by bacteria. This sort of defiance of the law is not a statement against injustice; it is an obstruction of justice. The supremacy of law is diminished, as is the trust people have in the legal system. The principles of a state of law are being held in contempt. Human rights have regressed in 2011, particularly in the areas of religious freedom, the right to organize, the right to housing and the right to a fair trial. At the start of the year, we were jolted by the Cikeusik tragedy in which intolerance, hatred and violence prevailed over logic as mobs killed members of the Ahmadiyah community. All year, Ahmadis in Indonesia have continued to face threats, attacks, violence, the closure of places of worship, damage to property and forced evictions. All this while the government, the House and the judicial institutions have failed to protect them or their constitutional rights. Other religious minorities face a similarly dangerous climate as groups preaching intolerance are free to spread their hatred through the media. In the labor sector, the dominant cases involved violation of the rights of workers and the freedom to organize. The Jakarta Legal Aid Foundation (LBH Jakarta) received reports of 12 cases of muzzling of labor unions. Labor union activists have been threatened with dismissals, suspension and transfer and their offices shut down. Workers at Carrefour, Asiatex, Perusahaan Listrik Negara, Dok dan Koja Bahari and Indofood Sukses Makmur were all hit by the criminalization of labor unions. Workers filed reports alleging criminal behavior by the entrepreneurs and labor supervisors they were fighting. The reports were pushed aside by police. This year has seen a rising number (24) of violations pertaining to fair trial. Arbitrary arrest and detention, torture and case manipulation are becoming a pattern. Violators include police, non-state actors such as intolerant groups and entrepreneurs, prosecutors, and the court system itself. Although the number of forced evictions decreased in 2011, there has been no fair settlement of disputes over urban spaces involving the poor. The government’s policy of taking inventory of its assets is implemented widely without consideration for state housing occupants, as guaranteed by law. A number of government ministries and state enterprises forcefully evicted occupants without providing an adequate or fair solution. Pawnshop operator Perum Pegadaian, train operator KAI, electricity provider PLN, a number of ministries such as home affairs and defense and the Indonesian Armed Forces were involved in forced evictions. Meanwhile, in Papua, arbitrary arrests, torture and killings continued unabated. The government and security personnel are muzzling the Papuan people by accusing anyone and everyone of plotting against the state. At least 29 people have been sentenced for political reasons, with sentences ranging from 11 months to life. Most were involved in the raising of the Morning Star flag, and the rest were peaceful protesters. In Papua, the law does not rule. The rulers are guns and the vast might of the wealthy. The revelation that there was Freeport money flowing into the pockets of the police and soldiers only served to throw the situation into sharp relief. Toward the end of the year, the atrocities committed against farmers in Mesuji in Sumatra came to public attention and snowballed with other similar cases that appeared to have taken place in other parts of the country. The expansion of palm oil plantations, often the result of corrupt practices involving permit-issuing local rulers and greedy capital owners, has led to vicious human rights violations — from the destruction of houses and crops to outright murder — by security forces and law enforcers on the companies’ payrolls. The democratic transition in Indonesia has clearly resulted in a complex alliance between the military, the wealthy and fundamentalists. The current regime has been integrating this alliance by sustaining a political, judicial and economic infrastructure that exists to benefit all three. Amid these political transactions lies the power of President Susilo Bambang Yudhoyono and the political parties. The agenda of the government and the House of Representatives is to service and accommodate their interests, while the interests of the people are placed far lower. Several draft laws pushed by civil society, aimed at putting some order into the judicial system and promoting human rights, have faced obstruction and continue to be excluded from the list of the House’s priority draft laws. This has happened with the draft laws on the Protection of Domestic Workers, on the revision of the Law on Human Rights Court, the ratification of international anti-torture protocols as well as the migrant workers’ legal package. The political oligarchy has made cabinet reshuffling meaningless. The president has ignored public calls to get rid of fundamentalist and self-interested factions. The political oligarchy has also turned the process of succession in so-called independent state institutions such as the Corruption Eradication Commission (KPK) into a game of interest trading and political alliances. The selection of judges for the Supreme Court has been similarly compromised. The political oligarchy has become a serious threat to the independence of the judicial system. The judiciary should be untouched by the influence, threats and pressures of politics and power. A political system that engages in transactions concerning the independence of the judiciary becomes a threat to the notion of an Indonesia based on the rule of law. We can rightly conclude, then, that what is happening is not a case of the law as king, but instead of the kings as law. What is happening is the rule by law, and not the rule of law. The law has become an instrument for the government to legitimize its actions while the fundamental rights of citizens are not only violated but also ignored. Nurkholis Hidayat is director of the Jakarta Legal Aid Foundation (LBH Jakarta). [Non-text portions of this message have been removed] ------------------------------------ Post message: [email protected] Subscribe : [email protected] Unsubscribe : [email protected] List owner : [email protected] Homepage : http://proletar.8m.com/Yahoo! 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