In this month’s Main Report we bring you coverage on a current LBH Masyarakat case. Humphery Ejike, a Nigerian national has been sentenced to death by a South Jakarta District Court after being convicted as a drug dealer. However the court failed to fully prove Mr Ejike’s guilt, instead it is alleged that the charge was fabricated and the judges were influenced by the race of the accused, rather than the evidence presented to the court. Such judicial prejudice has not only violated the Bangalore Principles, which mandates judges to examine cases impartially and in spirit of equality but the case has also violated Mr Ejike’s basic human rights as guaranteed by the 1945 Constitution and Convention on All Forms of Racial Discrimination (CERD) which was ratified by Indonesia in 1999. In addition to being discriminated against because of his race, Jeff has also had his right to fair trial violated as he was not given access to legal counsel or an appropriate interpreting service. The Additional Feature on this edition of CAVEAT reports on the after math of May 1998 riots and reflects on the wounds that have yet to be healed on the 12th anniversary of the events. The article explores the lack of justice obtained by the government on behalf of the many victims despite the abolition of Suhartos New Order regime. “Building A Rights-Based Approach of HIV/AIDS Case and Policy Advocacy” in Jakarta. Yoseph Adi Prasetyo from the National Human Rights Commission and human rights lawyer Taufik Basari attended the workshop to deliver presentation on the issue of HIV/AIDS, human rights and legal advocacy. The complete report on this workshop may be found in this edition’s Reportage. Last but not least, the Opinion Piece is an open letter written by the Asian Human Rights Commission to the Chief of the Indonesian National Police regarding the shooting of five terrorist suspects in Cikampek and Cawang.

1. CAVEAT
INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS
VOLUME 12/II, MAY 2010
MAIN REPORT |
Racial Profiling
Rampant in
Indonesian
Courts
In the Indonesian legal system racial
discrimination is alive and well. The verdict
explicitly states that ‘black people from Nigeria
often become the object of police’s monitoring,
as they often conduct tidy and undiscovered
narcotics transactions in Indonesia’. This
assumption leads to questions: are we really
equal before the law or do Indonesians,
unconsciously, still live in the era of apartheid
when skin color and ethnic background does
matter?
ADDITIONAL FEATURE |
12 Years On:
Unhealed Wounds and
the May 1998 Riots
This May marks the 12th year anniversary of
Indonesia’s deadly ‘May 1998’ riots, this time of
year is always a time to remember those that
were killed and to assess the current human
rights climate in Indonesia.
OPINION |
An Open Letter to Chief of
Indonesian National Police
AHRC strongly condemns terrorism and its
impact to society. Terrorism fosters fear and
insecurity in society since it indiscriminately
kills innocent people. As any other crimes,
terrorism cases should be impartially
investigated. The special challenges that
advanced terrorist activities present to society
have to be countered with a professional and
well trained police force. Anti-terrorist units
thus have to be subject to full judicial
accountability and any violations of victims or
suspect's rights have to be investigated pursued
according to law.
www.lbhmasyarakat.org
CAVEAT:
Let her or him be aware

2. C A V E A T | may 2010 | 1
CONTENT
THE EDITOR’S CUT | 2
MAIN REPORT | 3
Racial Profiling Rampant in Indonesian Courts
ADDITIONAL FEATURE | 8
12 Years on: Unhealed Wounds and the May 1998 Riots
OPINION | 10
An Open Letter to Chief of Indonesian National Police
RIGHTS IN ASIA | 12
REPORTAGE | 13
CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta,
Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced
without prior permission of the LBH Masyarakat.
CAVEAT invites feedback and contributions. If you are interested in contributing a guest
editorial piece or article, please contact us: contact@lbhmasyarakat.org
Editorial Board:
Ricky Gunawan, Dhoho Ali Sastro, Andri G. Wibisana, Ajeng Larasati, Alex Argo Hernowo,
Answer C. Styannes, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Grandy Nadeak, Vina
Fardhofa
Special Adviser:
Maeve Showell
Finance and Circulation:
Zaki Wildan
Address:
Tebet Timur Dalam III B, No. 10, Jakarta 12820, INDONESIA
Phone:
+62 21 830 54 50
Fax:
+62 21 829 80 67
E-mail:
contact@lbhmasyarakat.org
Website:
www.lbhmasyarakat.org
LBH Masyarakat welcomes any financial contribution for the development of CAVEAT
Name
: Lembaga Bantuan Hukum Masyarakat
Bank
: Bank Mandiri
Branch
: Tebet Timur, Jakarta, Indonesia
No. Acc.
:124–000–503–6620
Swift Code
:BEIIIDJA
L E M B A G A
B A N T U A N
H U K U M
M A S Y A R A K A T

3. C A V E A T | may 2010 | 2
THE EDITOR’S CUT
In this month’s Main Report we bring you
coverage on a current LBH Masyarakat case.
Humphery Ejike, a Nigerian national has
been sentenced to death by a South Jakarta
District Court after being convicted as a
drug dealer. However the court failed to
fully prove Mr Ejike’s guilt, instead it is
alleged that the charge was fabricated and
the judges were influenced by the race of
the accused, rather than the evidence
presented to the court. Such judicial
prejudice has not only violated the
Bangalore Principles, which mandates
judges to examine cases impartially and in
spirit of equality but the case has also
violated Mr Ejike’s basic human rights as
guaranteed by the 1945 Constitution and
Convention on All Forms of Racial
Discrimination (CERD) which was ratified
by Indonesia in 1999. In addition to being
discriminated against because of his race,
Jeff has also had his right to fair trial
violated as he was not given access to legal
counsel or an appropriate interpreting
service.
The Additional Feature on this edition of
CAVEAT reports on the after math of May
1998 riots and reflects on the wounds that
have yet to be healed on the 12th
anniversary of the events. The article
explores the lack of justice obtained by the
government on behalf of the many victims
despite the abolition of Suhartos New Order
regime.
“Building A Rights-Based Approach of
HIV/AIDS Case and Policy Advocacy” in
Jakarta. Yoseph Adi Prasetyo from the
National Human Rights Commission and
human rights lawyer Taufik Basari attended
the workshop to deliver presentation on the
issue of HIV/AIDS, human rights and legal
advocacy. The complete report on this
workshop may be found in this edition’s
Reportage.
Last but not least, the Opinion Piece is an
open letter written by the Asian Human
Rights Commission to the Chief of the
Indonesian National Police regarding the
shooting of five terrorist suspects in
Cikampek and Cawang. The Asian Human
Rights Commission questions the actions of
the police who shot unarmed suspects in
Cawang.
In other news CAVEAT will celebrate its first
birthday next month. We have been doing
out best to bring you a balanced and up to
date round-up of Indonesian human rights
news each month. CAVEAT welcomes your
criticism and recommendations.
Thank you for your ongoing support!
The Editor
As usual, Rights in Asia serves you three
highlights on human rights issues in other
Asian countries. LBH Masyarakat’s partner,
the Asian Human Rights Commission,
reports NGO concerns on the uncompetitive
elections for the UN Human Rights Council
specifically Malaysia’s candidacy for this
election despite the countries bad human
rights track record. Rights in Asia also
provides an insight into the current
situation in Bangkok.
On May 18-19 2010 LBH Masyarakat
conducted a two-day workshop called
L E M B A G A
B A N T U A N
H U K U M
M A S Y A R A K A T

4. C A V E A T | may 2010 | 3
MAIN REPORT
Racial Profiling Rampant in
Indonesian Courts
Indonesia, a country which is well known
for its multicultural society and high
At first glance, this case may seem like just
tolerance among its residents may not seem
another ordinary narcotics case. A suspect
to be a likely breeding ground for skin racial
related to a narcotics case was arrested and
discrimination in the judicial system. The
later sentenced to death. The death penalty
state’s motto Bhinneka Tunggal Ika –taken
is not an uncommon practice in Indonesia,
from old Javanese, means unity within
in keeping with the country’s ‘war on drugs’
diversity”- is introduced to Indonesians
policy. Jeff’s case, however, is more
from when they are very young. The
complex.
Indonesian government has even proudly
claimed in its report to the
Jeff was charged with
United Nations Committee The Indonesian government has even offering narcotics for sale
on the Elimination of Racial proudly claimed in its report to the (Category I) which is an
Discrimination in April 2006 United Nations Committee on the offense under Article 82
Elimination of Racial Discrimination
that
‘Indonesia
is
a
paragraph (1) Law No.
in April 2006 that ‘Indonesia is a
multicultural nation which multicultural nation which does not 22/1997
regarding
does
not
discriminate discriminate against any of its people Narcotics. During trial,
against any of its people according
however, not even a single
to
background’. The
according
to reality, however, is far from the ideal witness that testified has
background’. The
reality, taught to children at school, at least heard, seen, or known that
however, is far from the for Humphery Ejike. Ejike, or Jeff as Jeff conducted narcotics
ideal taught to children at he is usually called is a Nigerian transactions
in
his
school,
at
least
for national living in Indonesia. In 2003 restaurant.
Testimonies
Humphery Ejike. Ejike, or he was sentenced to death by delivered by two police
Indonesian court.
Jeff as he is usually called is
officers who arrested Jeff
a Nigerian national living in
only proved that the
Indonesia. In 2003 he was sentenced to
heroin were found in Jeff’s restaurant but
death by Indonesian court.
did not provide enough evidence that Jeff is
a drug dealer. The two police officers also
Jeff was arrested by police on August 2,
testified that they received information
2003 at his Central Jakarta restaurant,
from a ‘reliable source’ that narcotics
Recon. The police found 1.7 kilograms
transactions often been conducted in Jeff’s
heroin in the bedroom of the building. His
restaurant. However, they have yet to reveal
case was later brought before the Central
this ‘reliable source’ to the court or to Jeff’s
Jakarta District Court and on November 12,
defense team.
2003, the Judges reached a guilty verdict on
the charge of the sale of narcotics. The court
Due to this lack of evidence, Jeff should have
therefore punished him with the maximum
been acquitted as there was not enough
punishment that may be imposed for those
evidence to prove that he is guilty. This case,
who commit such an offense, the death
however, is a perfect example how ‘the
sentence. Jeff and his lawyers filed an appeal
ideal’ does not always take place in the
to a Higher Court and even the Supreme
Indonesian judicial process. Instead of
Court yet both verdicts reached the same
acquitting Jeff due to lack of evidence, the
conclusion as the Central Jakarta District
judges used their own assumptions as
Court.
grounds to find Jeff guilty. Firstly, they
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5. C A V E A T | may 2010 | 4
assumed that 1.7 kilograms heroin is too
much for self consumption and that Jeff
must have wanted to sell the drugs despite
no proof to the contrary. A judges’
assumption is not recognized as legal sense
of proof under the Indonesian Criminal
Procedure Code. Assumption may be used
merely as supporting grounds when there
are enough legal sense of proof to be sure
that the accused is guilty.
Yet it this not the worst assumption the
judges used in their verdict against Jeff.
Even worse, the second assumption used by
judges in Jeff’s case is in regards of his race.
In the Indonesian legal system racial
discrimination is alive and well. The verdict
explicitly states that ‘black people from
Nigeria often become the object of police’s
monitoring, as they often conduct tidy and
undiscovered narcotics transactions in
Indonesia’. This assumption leads to
questions: are we really equal before the
law or do Indonesians, unconsciously, still
live in the era of apartheid when skin color
and ethnic background does matter?
DOES SKIN COLOR MATTER BEFORE THE
COURT?
Human rights scholar Jack Donnely defines
human rights as rights one has simply
because one is a human being. Based on this
definition, human rights are endowed to all
human beings regardless of one’s skin color,
religion, social background, or any other
conditions. Besides employing the principle
of universal human rights, such definition
implies the very basic element of human
rights as well which is the concept of
equality. ‘Equality’ here in sense that no
groups are superior to others and neither
should any group enjoy more basic rights
than others. When a group or an individual
enjoys fewer rights than others for
unreasonable grounds then what transpires
is ‘discrimination’ which is contrary to the
concept of equality.
Together with the concept of liberty, the
formal recognition of equality as a basic
element of human rights and may be found
in the text of Universal Declaration of
Human Rights (UDHR). The famous first
L E M B A G A
B A N T U A N
article
of
In the Indonesian legal system
UDHR
mentions that racial discrimination is alive and
‘all
human well. The verdict explicitly states
beings
are that ‘black people from Nigeria
often become the object of
born free and
police’s monitoring, as they often
equal
in conduct tidy and undiscovered
dignity
and narcotics
transactions
in
rights’ which is Indonesia’. This assumption leads
strengthened
to questions: are we really equal
by what is before the law or do Indonesians,
stated
in unconsciously, still live in the era
Article 2 that of apartheid when skin color and
‘everyone
is ethnic background does matter?
entitled to all rights and freedoms... without
distinction of any kind, such as race, color,
sex, language, religion, political or other
opinion, national or social origin, property,
birth, or other status’. As UDHR has no
binding power, several international human
rights instruments related to antidiscrimination were later enacted, including
the Convention on the Elimination of All
Forms
of
Racial
Discrimination
(CERD). Indonesia itself has ratified the
CERD by Law No. 29/1999 and government
and parliament enacted Anti Racial
Discrimination Law in 2008. It does not
mean, however, that before 2008 there
were no laws provided protection against
discrimination. Law No. 39/1999 on Human
Rights provides such protection and even
Article 28D paragraph (3) of the 1945
Constitution guaranteed that everyone
within Indonesia’s territory has right to be
treated equally before the law. In short, the
spirit of anti-discrimination has been
introduced in many laws and regulations in
Indonesia which is also recognized by
Committee on the Elimination of Racial
Discrimination as ‘positive aspects’ in its’
Concluding Observation in 2007.
All of these laws and regulations,
unfortunately, are not enough to ensure that
a person will not be discriminated against.
This should be surprising as the obligation
for State to combat discrimination is not
only imposed to the lawmakers and
executive but judiciary branch as well.
The obligation of the State to prohibit and
eliminate discrimination related to the
judiciary power is enshrined in Articles 5
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6. C A V E A T | may 2010 | 5
and 6 of the CERD. Article 5 concerns
UNFAIR TRIAL
equality before the law, Article 6 of the
Convention highlights the State’s obligation
The concept of equality before the law and
to ensure effective protection and remedies
court is not only related to nonthrough competent national tribunals or
discrimination but to fair trial as well. As
any other State’s institutions. To guide State
stated in Article 14 of International
parties
–particularly
the
Covenant on Civil and
The concept of equality before the
judiciary
branchin law and court is not only related to Political Rights (ICCPR),
implementing the provisions in non-discrimination but to fair trial besides equality before
Article 5 and 6 of CERD, the as well. As stated in Article 14 of the court and tribunals
Committee on the Elimination of International Covenant on Civil there are more elements
Racial Discrimination issued and Political Rights (ICCPR), of fair trial, including the
General Recommendation XXXI besides equality before the court right to be informed
on the prevention of racial and tribunals there are more promptly and in detail in
discrimination
in
the elements of fair trial, including the a language which the
administration and functioning right to be informed promptly and suspect
or
accused
in detail in a language which the
of the criminal justice system.
understands
of
the
suspect or accused understands of
nature and cause of the
the nature and cause of the charge
What has happened in Jeff case, against him/her and the right to be charge against him/her
unfortunately,
was
totally tried without undue delay.
and the right to be tried
incompatible with all the
without undue delay. In
mandates given by CERD or its’ General
Jeff’s case, these fair trial elements were
Recommendations’. Instead of preventing
violated. Police, prosecutors, and the court
‘questioning, arrests and searches which are
did not provide an interpreter for him
in reality based solely on the physical
during the legal process. During trial, the
appearance of a person’ and ‘ensure certain
court provided free assistance of interpreter
groups enjoy all the guarantees of a fair trial
but the translation was only provided from
and equality before the law’ as stipulated in
Bahasa Indonesia to English, a language Jeff
the recommendation number 20 and 28, the
did not understand. No effort was made to
judges in Jeff’s case have taken part in
find a translator that spoke Jeff’s first
championing racial discrimination itself. It
language. Interrogation by police and the
is ironic how the institution which is hoped
prosecutor, and even examination before
by discrimination victims to provide
the court were conducted in a language Jeff
remedies has in fact contributed to race
could not understand. Ironically, in their
discrimination violation.
verdict judges claimed that Jeff did not give
clear information during his examination in
It is regrettable that judges in Jeff’s case
court and this reason was used as a further
have behaved impartially, and based their
justification for the judges to impose a
verdicts on such biased reasoning. As
severe punishment for Jeff. Now the
stipulated in the Bangalore Principles of
question is: how can we expect someone to
Judicial Conduct 2002, ‘impartiality’ is one
deliver information clearly before the court
of values that should be upheld by judges as
if he cannot even understand the language
well as value of ‘equality’ in examining
spoken by the judge and prosecutor.
cases. The value of ‘impartiality’ includes an
obligation for judges to ‘perform his or her
In addition to the lack of a translator, Jeff’s
judicial duties without favor, bias, or
right to a free trial was further violated by
prejudice’. In a line with ‘impartiality’ and
his inability to have access to adequate legal
‘equality’ values outlined in the Bangalore
counsel. Jeff was arrested on August 2, 2003
Principles comprises of a prohibition for
yet he received first legal assistance on
judges to ‘... by words or conduct, manifest
January 6, 2004. The absence of legal
any bias towards persons or groups on the
counsel for approximately four months in
grounds of their racial or other origin’.
Jeff’s case is violation of Article 54 of
Indonesian Criminal Procedure Code which
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7. C A V E A T | may 2010 | 6
states that the suspect or accused has the
right to obtain legal assistance in the form of
legal counsels during the period of and at
every stage of examination against him. In
most cases the presence of legal counsels
may minimize the potential violation of the
suspect or accused rights. At the very least ,
presence of legal counsels can help the
suspect or accused who has no legal
background to understand legal process
they face and also help them in preparing
their defense.
Jeff has no education and knowledge of the
complexities of the Indonesian legal system.
He had to try and self-educate himself as to
the legal processes and procedures used by
the Indonesian judicial system. Initially, Jeff
only was charged of drug ownership under
Article 78 paragraph (1) of Narcotics Law
but later police decided to add a more
serious charge, that being drug dealing
under Article 82 of Narcotics Law.
UNHAPPY ENDING?
As could be expected by the numerous
rights violations during Jeff’s trial, this case
does not have a happy ending. Central
Jakarta District Court returned a guilty
verdict; this verdict was upheld after
appeals to the DKI Jakarta High Court and
Supreme Court. Jeff has been sentenced to
death. His case begun with discrimination,
was plagued by unfair trial violations, and is
about to end with infringements of his very
basic rights. Jeff’s name is not on the list of
executions to be carried out in 2010
however he is still in his cell on the death
row without any news as to when his
execution will take place. That is up to the
Attorney General’s Office (AGO).
It is strongly disappointing that Indonesia
still employs capital punishment. From a
human rights perspective, the death penalty
is a violation of one’s right to life which is
the most basic right of a human being.
International law expert and Professor
Emeritus at Tel Aviv University Yoram
Dinstein once pointed out ‘if there were no
right to life, there would be no point in the
other human rights’.
L E M B A G A
B A N T U A N
Arguments of those who support death
penalty claim that the death penalty is an
effective deterrent to potential criminals.
However no evidence shown that there is
correlation between implementation of
death penalty and decreasing drug crime
numbers. It is also undeniable that the
judicial system is vulnerable to human
error. Therefore, is it not too risky to decide
the continuance of someone else’s life on
such vulnerable system? Irrevocability of
death penalty is another reason to against it.
There is no way to compensate a victim.
In addition to the lack of a translator, Jeff’s
right to a free trial was further violated by his
inability to have access to adequate legal
counsel. Jeff was arrested on August 2, 2003
yet he received first legal assistance on
January 6, 2004. The absence of legal counsel
for approximately four months in Jeff’s case is
violation of Article 54 of Indonesian Criminal
Procedure Code which states that the suspect
or accused has the right to obtain legal
assistance in the form of legal counsels during
the period of and at every stage of
examination against him.
Moreover, imposing death penalty is not a
good education for society. It teaches
society to yearn for revenge instead of
forgiveness. Surely imposing death penalty
is not the only way to prevent crime. There
are number of ways to do it, and they are
the obligations of law enforcement officials.
Sentencing someone to death in the name of
crime to prevent crime is a gruesome
shortcut.
WHAT NEXT?
On paper, Jeff has exhausted all of his
available legal remedies. He appealed to
High Court and Supreme Court and also
filed final review appeal (peninjauan
kembali) to the Supreme Court. However,
LBH Masyarakat is not going to give up. LBH
Masyarakat is currently conducting several
strategies for Jeff, including meeting with
the National Human Rights Commission
(Komnas HAM) and conducting expert
examinations with and human rights
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8. C A V E A T | may 2010 | 7
experts such as Ms. Asmin Fransiska, Mr. Ori
Rahman, and Mr. Eddy O.S Hiariej.
LBH Masyarakat is researching the
possibility to file a second final review
appeal for this case even though such legal
remedy is not recognized by law. In practice
there are some cases which indicate that it
is possible to file second final review appeal.
The possibility is not likely but for saving
one’s life it is worth to try.
--
L E M B A G A
It is strongly disappointing that
Indonesia still employs capital
punishment. From a human rights
perspective, the death penalty is a
violation of one’s right to life which
is the most basic right of a human
being. International law expert and
Professor Emeritus at Tel Aviv
University Yoram Dinstein once
pointed out ‘if there were no right
to life, there would be no point in
the other human rights’.
B A N T U A N
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9. C A V E A T | may 2010 | 8
ADDITIONAL FEATURE
12 Years On: Unhealed Wounds and
the May 1998 Riots
This May marks the 12th year anniversary of
Indonesia’s deadly ‘May 1998’ riots, this
time of year is always a time to remember
those that were killed and to assess the
current human rights climate in Indonesia.
1998
Chinese owned shops, businesses and
buildings were ransacked and then
destroyed, from large companies to family
owned stores. Areas such as Glodok in West
Jakarta and Mangga Dua in North Jakarta
were especially targeted for their high
concentration of Chinese residents.
LET’S SEE HOW FAR WE’VE COME
In 1998 Indonesia was teetering on the
brink of a total meltdown. The 1997 Asian
As the dust settled on a city divided in 1998,
Financial Crisis had caused the Rupiah to
much was said about Indonesia’s fresh start.
plunge and unemployment rates to rise at
The people had spoken, they had rejected
an increasingly high rate, food shortages
the old corrupt order and many claimed
were driving large amounts of people to
that democracy had a chance to flourish.
turn to violence in order to feed their
Initially this seemed to be the case. A new
families. The tide was turning against
electoral system was introduced and a
President Suharto, the corrupt leader that
record number of people went to the polls
had leaded the country for over 30 years.
to choose their democratically elected
Demonstrators were clogging the streets,
candidate.
demanding for Suharto to step down. One
particular protest – lead by students at
Trisakti University in Jakarta – As the dust settled on a city However it seems that
became the turning point as divided in 1998, much was said somewhere in the last twelve
police fired into the crowd, about Indonesia’s fresh start. years Indonesia has failed to
killing four of the student The people had spoken, they deliver on its promises.
Suharto linked power brokers
demonstrators.
had rejected the old corrupt
like Aburizal Bakrie, the
order and many claimed that
Rioters began to take their democracy had a chance to current leader of ex Suharto
anger out on the Indonesian flourish. Initially this seemed political vehicle Golkar, and
Prabowo
Chinese, a group known for its to be the case. A new electoral former General
system was introduced and a
Subianto (widely believed to
wealth within Indonesia,
record number of people went
many reports suggested, from to the polls to choose their have a large hand in
orchestrating the riots) still
the look of the most violent democratically
elected
wield power in politics and
rioters that the army had a candidate.
one of the most reformist
huge part to play in the
politicians in a long while, Sri Mulyani was
violence. As the riots spread over 1500
recently forced out from her position in
people were killed and a large number were
cabinet. General Wiranto who was head of
raped. We can never know the exact
the Indonesian Armed forces during the riot
number of women and girls who were
has is currently the Chairman of the Peoples
subjected to humiliating sexual abuse as
Conscience Party. Just last month Jakarta
much of it went unreported as families tried
saw another bloody riot which former Vice
to deal with the aftermath on their own.
President Jusuf Kalla likened to the May
Many wealthy Chinese-Indonesian families
1998 atrocities. Similar to 1998 the
fled the country, those that could not afford
behavior of police in handling riot
to were forced to barricade themselves in
prevention has come under fire. The power
their homes and hope for the best. Many
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10. C A V E A T | may 2010 | 9
in Indonesia is still held by the privileged
few and cases (such as the acquittal of
Suharto’s son Tommy) have shown that the
judicial system has a long way to come. It
cannot be denied that Indonesia has taken
steps down the right path since 1998 but
the country has a very long time to go
before full democracy and human rights can
flourish.
REMEMBERING THE TRAGEDY
Across the globe there has been much
debate on how to deal with post conflict
remembrance. In Germany after the Second
World War trials of Nazi War Criminals took
place and museums were built to inform
another generation of the tragedy. In
schools all over the world children are
taught about the holocaust to ensure that
such evil does not take place again. If justice
cannot be achieved for the families of
victims the least that can happen is that a
dialogue is opened in which to discuss
human rights and what this means in times
of strife. This is why it is important that
Indonesia does not forget those that lost
their lives in 1998, or those who lost
livelihoods, family members or experienced
trauma at the hands of others.
Andy Yentriyani, from the National
Commission on Violence Against Women
(Komnas Perempuan) spoke to The Jakarta
Globe on the subject, Andy stated that “The
tragedy is only being remembered as
demonstrations by students which led to
President Suharto quitting. The shooting,
the rioting, the sexual abuse of women must
be included. We cannot remain silent or
deny it. We need to include that in the
history books”
However the Indonesian Justice Minister
has suggested that Indonesia would be best
served as to put the tragedy behind them.
Speaking to Detik.com Patrialis Akhbar has
said that “If we continue to look for who is
most responsible, I don’t think we will ever
find a way out. We will just keep looking
and looking.”
L E M B A G A
B A N T U A N
There have been attempts to bring those
that were responsible for the tragedy to
justice and to compensate victims but
neither effort has flourished. Directly after
the incident the Tim Gabungan Pencari
Fakta (TGPF or Joint Fact Finding Team)
was established by a Joint Decree by the
Defense and Security Minister/Commander
of the Indonesian Army, Justice Minister,
Home Affairs Minister, Foreign Affairs
Minister, State Minister for Women
Empowerment and Attorney General issued
on 23 July 1998. In addition KOMNAS HAM
also put together a fact finding team to
investigate the riots, however both of these
efforts seem to have got bogged down at the
Attorney General’s Office. Thus none of the
initiatives formed to bring justice and
answers to those affected have been able to
do so, and for the victims and their families
this is simply not good enough.
--
Across the globe there has been much
debate on how to deal with post conflict
remembrance. In Germany after the
Second World War trials of Nazi War
Criminals took place and museums were
built to inform another generation of the
tragedy. In schools all over the world
children are taught about the holocaust
to ensure that such evil does not take
place again. If justice cannot be achieved
for the families of victims the least that
can happen is that a dialogue is opened in
which to discuss human rights and what
this means in times of strife. This is why it
is important that Indonesia does not
forget those that lost their lives in 1998,
or those who lost livelihoods, family
members or experienced trauma at the
hands of others.
H U K U M
M A S Y A R A K A T

11. C A V E A T | may 2010 | 10
OPINION
FOR IMMEDIATE RELEASE
May 17, 2010
AHRC-OLT-004-2010
An Open Letter to Chief of Indonesian
National Police
General of Police Bambang Hendarso Danuri
Chief of Indonesian National Police
Jl. Trunojoyo No. 3
South Jakarta
INDONESIA
Tel: +62 21 721 8555, +62 21 721 8012
Fax: +62 21 720 7277
Email: polri@polri.go.id
CC: United Nations Special Rapporteur on
the promotion and protection of human
rights while countering terrorism, Mr.
Martin Scheinin; President Susilo Bambang
Yudhoyono
Dear Sir,
INDONESIA:
Police act disproportionately in war on
terror -- unarmed suspects shot dead
According to your statement and reports,
three alleged terrorists were shot to death
on May 12, 2010 in Cawang, Jakarta by
police officers from the special detachment
for anti-terrorism (Densus 88). Two others
were killed in a raid in the Cikampek subdistrict, East Jakarta by the same unit on the
same day. According to eyewitness reports
the police opened fire against unarmed
suspects in Cawang. The Asian Human
Rights Commission (AHRC) is very
concerned about the disproportionate us of
lethal force in this operation.
AHRC strongly condemns terrorism and its
impact to society. Terrorism fosters fear and
insecurity
in
society
since
it
indiscriminately kills innocent people. As
any other crimes, terrorism cases should be
impartially investigated. The special
L E M B A G A
B A N T U A N
challenges that advanced terrorist activities
present to society have to be countered with
a professional and well trained police force.
Anti-terrorist units thus have to be subject
to full judicial accountability and any
violations of victims or suspect's rights have
to be investigated pursued according to law.
For this very reason, the AHRC regrets the
shooting that occurred in the two locations
in Jakarta. The AHRC is in particular
concerned about the incident in Cawang,
since the suspects were unarmed and no
harmful acts were committed by them at
that time of the operation. According to
eyewitness reports, one of the suspects had
just gotten out of a taxi and was about to
meet the other two suspects when four
police officers from the Densus 88 unit
attempted to arrest the suspect. When he
physically resisted the arrest, the police
opened fire at him. The two other suspects
tried to escape but were caught, beaten and
were reported to have been shot to death
too. Of the five persons who were killed by
police in the course of the two operations on
this Wednesday, only two were identified,
namely as Saptono and Maulana, who are
listed as most dangerous terrorists by
police.
These detailed witness reports are very
concerning
since
they
indicate
a
disproportionate use of force beyond
necessary means for an arrest and would
thus present a violation of the right to life as
established in the International Covenant on
Civil and Political Rights.
The police later explained that they had no
choice but to shoot the suspects since the
suspects "resisted and did not want to be
arrested, we did not want to take any risk of
officers being killed" (Brigadier General,
Zainuri Lubis). However, it is neither clear
whether the suspects tried to commit any
harmful counter attacks that would have left
the police no other choice than to fire
deadly shots, nor is any information
provided by the police or other evidence
H U K U M
M A S Y A R A K A T

12. C A V E A T | may 2010 | 11
available as to whether the suspects
threatened public security in an immediate
way at the time of arrest. The independent
witness present at the shooting location
confirmed that the suspects tried to escape
and that the only form of resistance to the
arrest was to beat the police officers with
his arms. The police responded by hitting
the suspect with a gun resulting in bleeding.
No report suggests that a necessity to fire
shots or to fire deadly shots would have
arisen.
Terrorism has rightly been condemned by
the international community for having cost
numerous innocent civilian lives and several
countries are trying to counter such
inhuman activities including Indonesia.
However, protecting public security does
not justify the violation of the rights of
others as international jurisprudence has
extensively ruled. Means used by states to
prevent terrorism have to be in accordance
with human rights principles and limited to
only necessary harm against suspects. State
responses to terrorism have to be
conducted with full respect to the terrorists'
rights as a human being.
The police, in exercising its duties to
prevent all crimes including terrorism, has
to apply the concepts of 'necessity' and
'proportionality' as enshrined in Article 3
United Nations Code of Conduct for Law
Enforcement Officials. The shooting of three
terrorists in Cawang shows that the police
often neglect these principles and tend to
commit rash measures in many terrorism
cases, which results in the violation of basic
rights. In March 2010 alone, five alleged
terrorists were shot to death in Aceh,
without any reported resistance to the
arrest.
Several laws and rules which mandate
police to respect human rights and act
professionally have been enacted in
Indonesia, including Law No. 2/2002:
Indonesian National Police, Police
Regulation No. 8/2009: Implementation
of Human Rights Principles and
Standards in the Discharge of Duties
of the Indonesian National Police, as
well as the Code of Conduct for Indonesian
National Police Officers. Despite this
legislation and several institutional reforms
the repeated incidents of police killings
show a serious lack of implementation of
these
standards.
Accountability
for
misconduct is the key to address human
rights violations by state authorities, in
particular the police.
The AHRC urges you to ensure that an
independent investigation regarding the
killings in anti-terrorist operations that
occurred on May 12, 2010 in Jakarta is
conducted. The killings of civilians and
suspects in Aceh in February and March
2010 have to be investigated by an
impartial unit as well. The AHRC also calls
for a reform and professionalization of the
police, in particular its anti-terrorist unit. A
committed implementation of the new
police
regulations
through
internal
disciplinary and criminal procedures is
necessary to ensure police accountability
for the protection of human rights.
Yours faithfully,
Basil Fernando
Director
Asian Human Rights Commission,
Hong Kong
In AHRC-STM-047-2010 the AHRC reported
about the death of innocent civilians.
Kamarrudin and his 14 year-old son, Suheri,
were mistakenly suspected as members of a
terrorist group based in Aceh. Both victims
were shot at by police, which later caused
Kamarrudin's death and severe injuries of
his son. Several other killings in counterterrorist operations have been reported
from Aceh. (see AHRC-UAC-058-2010)
L E M B A G A
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H U K U M
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13. C A V E A T | may 2010 | 12
RIGHTS IN ASIA
Information contained in this column is provided
by the Asia Human Rights Commission (AHRC).
ASIA – NGO coalition concerns on Human
Rights Council election
The NGO Coalition for an Effective Human
Rights Council regrets the uncompetitive
election for the UN Human Rights Council as
the number of candidates equals the
number of vacant seats allotted to the
region. The candidacy for membership in
this UN authority for human rights would
thus not be based on a competition for good
human rights standards but become a socalled clean-slate election without options.
As pointed out by Peggy Hicks from Human
Rights Watch, "The council elections have
become a pre-cooked process that strips the
meaning from the membership standards
established by the General Assembly". The
coalition also highlighted the human rights
conditions in Angola, Libya, Malaysia,
Thailand and Uganda that these countries
are urged to take concrete steps for human
rights improvement before they take their
seats on June 19, 2010.
Malaysia’s candidacy is one of the most
contentious due to its bad track record on
human rights. Thirty eight NGOs including
LBH Masyarakat sent a joint letter to the UN
General Assembly members, asking them to
consider Malaysia’s human rights record
before granting their vote to the country in
the election. Malaysia lacks protection for
human rights at national level and the
country fails to act cooperatively with the
Human Rights Council. Malaysia has still not
issued a standing invitation for visits to all
UN special procedures mandate holders as
would be expected for a membership in the
Council.
imminent and that more lives will be lost.
On April 10, at least 25 people died and
hundreds were injured when the army
moved on assembled demonstrators. During
14 - 16 May it is reported that at least 33
people died and 239 others were injured.
Although the government denied that the
military on that occasion used live
ammunition, all evidence is to the contrary.
The government of Thailand should by now
be aware that the use of soldiers to dislodge
these demonstrators is counterproductive.
Not only has it failed in its basic objective,
but it has also again dragged the country's
reputation to new lows, ironically, just as its
diplomats are bidding for a seat on the
United Nations Human Rights Council.
The deep loss in public respect for state
institutions over recent years, especially
loss of confidence in the judiciary, is
primarily a consequence not of public
actions but of the wrongheaded and illintended acts of successive administrations.
Any resort to violence now will only further
diminish the standing of key state agencies,
causing further setbacks to the decades long
project to build rational institutions for a
humane and intelligent society.
Thailand - Further bloodshed must be
avoided at all costs
There are many disturbing reports of a
possible new attack to disperse antigovernment protestors that have continued
to assemble in Bangkok. There are grave
and legitimate fears that further violence is
L E M B A G A
B A N T U A N
H U K U M
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14. C A V E A T | may 2010 | 13
REPORTAGE
National HIV/AIDS Workshop Report
discussion of how the key populations are
defined, and its pros and cons. Tandiono
Bawor from HUMA who facilitated the
workshop did a good job by bridging the
gap among people who shared different
perspectives.
Jakarta – On May 18 and 19, Lembaga
Bantuan
Hukum
Masyarakat
(LBH
Masyarakat) with the support from the
International
Development
Law
Organization (IDL) and the OPEC Funds for
International Development (OFID), held a
Still on day one, Yoseph Adi Prasetyo from
two-day workshop called “Building A
the National Human Rights Commission
Rights-Based Approach of HIV/AIDS Case
(Komnas HAM) presented a session on
and Policy Advocacy” in Jakarta. The
human rights and HIV. His presentation
objective of the workshop was to provide a
covered an introduction on human rights,
comprehensive understanding regarding
its definition, principles, and national and
the relation between law, human rights, and
international human rights framework, key
HIV/AIDS as well as its underlying
human rights that are closely related with
components the extent
the issue of HIV or people
to which it can be On second day, Taufik Basari, a human living
with
HIV/AIDS
utilized to conduct an rights lawyer and LBH Masyarakat’s (PLHIV). Afterwards, Julie
effective legal service Chairperson of the Board of Directors, Hamblin a HIV and law
gave a presentation on legal advocacy
and
legal
advocacy
expert from Australia
and its role to create an effective
which is ultimately HIV/AIDS policy. He presented a number presented a session on the
expected to create an of key points regarding legal advocacy issue of legal services as a
enabling environment. It based on his long experience in the field. tool to support effective
is also hoped that this “It is crucial for us to set down what are responses to HIV. She also
workshop can be a the indicators of our strategy in order to reiterated a key point that
forum for two important observe whether our legal advocacy had been raised by
advocacy
groups: strategy has reached its target or not. Yoseph. “Supportive laws
law/human rights and And not to mention, its exit strategy or are an essential part of the
HIV/AIDS, to interact, mitigation scheme if the legal advocacy enabling
environment.
failed to meet our top goals,” said Taufik.
understand, and engage
Supportive
laws
can
one another.
actually do two things:
first, they provide legal protection for the
The organizer invited 20 participants, 14 of
people affected, and secondly, they
which were from Jakarta. The remaining six
strengthen our capacity to respond
hailed from Bandung, West Java; Semarang,
effectively to HIVand reduces further
Central Java; and Surabaya, in East Java. The
spreading,” said Julie. She also gave some
participants
come
from
various
example of cases from Papua New Guinea,
backgrounds, eight from legal aid
Australia, and South Africa of how the legal
institute/human rights NGO, one from the
service can be used.
legal aid centre of the Indonesian Bar
Association (PERADI), one representing
On second day, Taufik Basari, a human
theNational AIDS Commission (KPAN), and
rights lawyer and LBH Masyarakat’s
ten of attendees were activists from
Chairperson of the Board of Directors, gave
HIV/AIDS NGOs and key populations
a presentation on legal advocacy and its role
groups.
to create an effective HIV/AIDS policy. He
presented a number of key points regarding
On day one, Setyo Warsono from KPAN
legal advocacy based on his long experience
presented a brief introduction on HIV/AIDS
in the field. “It is crucial for us to set down
and focused heavily on its national strategic
what are the indicators of our strategy in
planning for the next five years. Thereafter,
order to observe whether our legal
his presentation was followed by an intense
advocacy strategy has reached its target or
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15. C A V E A T | may 2010 | 14
not. And not to mention, its exit strategy or
mitigation scheme if the legal advocacy
failed to meet our top goals,” said Taufik.
After his presentation, the participants were
divided into four groups in which they then
took part in discussion about legal problems
faced by PLHIV and key populations and
how they aim to solve such problems, what
sort of legal advocacy they would
undertake, and who are their allies and foes,
and so forth.
At the end of the day, the participants
agreed to keep maintaining communication
and engage more deeply among themselves
and bear in mind some action plans, one of
which is to advocate HIV-related cases
together.
--
L E M B A G A
B A N T U A N
H U K U M
M A S Y A R A K A T

16. C A V E A T | may 2010 | 15
ABOUT US
Born from the idea that all members of
society have the potential to actively
participate in forging a just and democratic
nation, a group of human rights lawyers,
scholars and democrats established a nonprofit civil society organization named the
Community Legal Aid Institute (LBH
Masyarakat)
By providing a wide range of opportunities,
LBH Masyarakat is able to join forces with
those concerned about upholding justice
and human rights to collectively participate
and contribute to the overall improvement
of human rights in Indonesia.
LBH Masyarakat is an open-membership
organisation seeking to recruit those
wanting to play a key role in contributing to
the empowerment of society. The members
of LBH Masyarakat believe in the values of
democracy and ethical human rights
principals that strive against discrimination,
corruption and violence against women,
among others.
LBH Masyarakat aims for a future where
everyone in society has access to legal
assistance through participating in and
defending probono legal aid, upholding
justice and fulfilling human rights.
Additionally, LBH Masyarakat strives to
empower people to independently run a
legal aid movement as well as build social
awareness about the rights of an individual
within, from and for their society.
LBH Masyarakat runs a number of
programs, the main three of which are as
follows: (1) Community legal empowerment
through legal counselling, legal education,
legal clinics, human rights education,
awareness building in regard to basic rights,
and providing legal information and legal
aid for social programs; (2) Public case and
public policy advocacy; (3) Conducting
research concerning public predicaments,
international human rights campaigns and
advocacy.
These programs are conducted entirely in
cooperation with society itself. LBH
Masyarakat strongly believes that by
enhancing legal and human rights
awareness among social groups, an
independent advocacy approach can be
adopted by individuals within their local
areas.
L E M B A G A
B A N T U A N
Lembaga Bantuan Hukum Masyarakat
Tebet Timur Dalam III B, No. 10
Jakarta 12820
INDONESIA
P. +62 21 830 54 50
F. +62 21 829 80 67
E. contact@lbhmasyarakat.org
W. http://www.lbhmasyarakat.org
H U K U M
M A S Y A R A K A T