Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 1(a) of the Convention. Use of forced labour as a punishment for expressing views opposed to the established political, social or economic system. 1. In its previous comments, the Committee noted that sentences of imprisonment (which involve compulsory prison labour under articles 14 and 19 of the Criminal Code and articles 57(1) and 59(2) of the Prisons Regulations) may be imposed under articles 107(a), 107(d) and 107(e) of the Law concerning the amendment to the Criminal Code in relation to crime against the state’s security (No. 27/1999), on any person who disseminates or develops the teachings of Communism/
Marxism-Leninism orally, in writing or through any media, or establishes an organization based on such teachings, or establishes relations with such an organization, with a view to replacing Pancasila as the State’s foundation.

The Committee recalled that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. In this respect, it refers to paragraph 154 of its 2007 General Survey on the eradication of forced labour, in which it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence, but that sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision.

The Committee notes that once again the Government’s report does not contain any information in reply to its comments on this point. The Committee trusts that the Government will take the necessary measures to bring articles 107(a), 107(d) and 107(e) of Law No. 27/1999 into conformity with the Convention and that it will provide information in its next report on the progress achieved in this respect.

2. The Committee noted previously that Act No. 9/1998 on freedom of expression in public imposes certain restrictions on the expression of ideas in public during public gatherings, demonstrations, parades, etc., such restrictions being enforceable with criminal sanctions (articles 15, 16 and 17 of the Law). It requested the Government to indicate these sanctions, supplying copies of the relevant texts, and to provide information on the application of the above Law in practice, including copies of court decisions defining or illustrating its scope, so as to enable the Committee to assess its conformity with the Convention. The Committee notes that once again the Government’s report does not contain a reply on this point. The Committee trusts that the Government will provide the information requested in its next report.

3. The Committee noted previously the indication in the Government’s report that Presidential Decree No. 11 of 1963 on the eradication of subversive activities, which contained provisions punishing the distortion, undermining or deviation from the ideology of Pancasila State or the broad policy lines of the State, was no longer in force. Noting that the Government’s report does not contain a reply to its previous comments on this matter, the Committee once again requests the Government to indicate in its next report whether this Decree has been formally repealed and, if so, to supply a copy of the repealing text.

4. In its previous direct requests, the Committee requested the Government to provide a copy of the latest updated and consolidated text of the Criminal Code. It notes the Government’s indication that the new Criminal Code is still in the process of finalization. The Committee further notes the information contained on the Internet site of the Constitutional Court (http://www.mahkamahkonstitusi.
go.id), concerning certain sections of the Criminal Code. According to this information, the Constitutional Court, in its ruling on Case No. 6/PUU-V/2007, found articles 154 and 155 of the Criminal Code to be contrary to the Constitution of 1945. These articles establish the penalty of imprisonment (involving compulsory labour) for up to seven years and four and a half years, respectively, for a person who publicly gives expression to feelings of hostility, hatred or contempt against the Government (article 154) or who disseminates, openly demonstrates or puts up a writing containing such feelings, with the intent to give publicity to the contents or to enhance the publicity thereof (article 155). In its ruling, the Constitutional Court found that the qualification of a punishable offence formulated in articles 154 and 155 of the Criminal Code requires the fulfilment of the element of a prohibited act, without being linked to the consequence of such acts. Consequently, the formulation of the two articles may lead to abuse of power since they can be easily interpreted according to what the ruler wishes. According to the Constitutional Court, a citizen intending to criticize or to express opinions concerning the Government, which constitutes a constitutional right guaranteed by the 1945 Constitution, may easily be qualified by the ruler as expressing feelings of hostility, hatred or contempt against the Government due to the uncertainty of the criteria in the formulation of articles 154 and 155. Such uncertainty makes it difficult to distinguish a criticism or expression of opinions from such feelings of hostility, hatred or contempt against the Government, since a prosecutor does not need to prove whether or not a statement or opinion expressed by a person has actually caused or provoked hatred or hostility among the public. The Committee further notes that, in ruling No. 013-022/PUU-IV/2006, the Constitutional Court found that it was inappropriate for Indonesia as a republic based on the sovereignty of the people and which upholds the human rights as set forth in the 1945 Constitution, to maintain articles 134, 136bis and 137 of the Criminal Code (respecting deliberate insults against the President or the Vice-President), since they negate the principle of equality before the law, diminish freedom of expression and opinion, freedom of information and the principle of legal certainty. Accordingly, in the view of the Constitutional Court, the new draft text of the Criminal Code must also exclude provisions that are identical or similar to those of articles 134, 136bis and 137 of the Criminal Code.

Furthermore, the Committee has noted the cases of several persons convicted recently to heavy sentences of imprisonment, involving compulsory labour, for the peaceful expression of their political opinions, their peaceful support to an independence movement, or for the simple fact of having raised a separatist flag in the eastern provinces of Papua and West Irian Jaya, under the above provisions of the Criminal Code and article 106, under which a maximum sentence of imprisonment of 20 years may be imposed for an attempt to separate part of the territory of the State.

In view of the above and of the incidence that these provisions of the Criminal Code may have on the application of the Convention, the Committee expresses its deep concern and hopes that the Government will take into account the rulings of the Constitutional Court in the context of the adoption of the new Criminal Code. It requests the Government to provide a copy of the Code as soon as it has been adopted. In the meantime, it requests the Government to indicate the manner in which articles 106, 134, 136bis, 137, 154 and 155 of the Penal Code are applied in practice, with copies of any court rulings issued thereunder.

Article 1(d). Recourse to compulsory labour as a punishment for having participated in strikes. In its 2005 direct request, the Committee noted that under article 139 of the Manpower Act (No. 13 of 2003), read in conjunction with article 185 of the same Act, restrictions on the right to strike in enterprises that serve the public interest are enforceable with sanctions of imprisonment for a term of up to four years (which involves compulsory prison labour). With reference to paragraph 185 of its 2007 General Survey on the eradication of forced labour, the Committee recalls that, to be compatible with the Convention, penalties involving compulsory labour for participation in strikes may only be applied in respect of essential services in the strict sense of the term (that is, only those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee observed previously that certain kinds of services listed in the explanatory notes to article 139 of the Manpower Act (such as the railway service) do not meet these criteria. The Committee also refers to the observation that it is making under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), particularly on the need to remove certain restrictions on the right to strike and to amend provisions establishing disproportionate penal sanctions. The Committee notes the Government’s statement in its last report that there is no plan to amend these provisions. The Committee trusts that the Government will take the appropriate measures to amend these provisions of the Manpower Act so as to limit their scope to essential services in the strict sense of the term and to ensure that no penalty involving compulsory labour can be imposed on persons participating in strikes. While awaiting this amendment, the Committee once again requests the Government to provide information on the effect given in practice to articles 139 and 185, including copies of court decisions defining or illustrating their scope.

The Committee is also addressing a request directly to the Government on other matters.

[The Government is asked to supply full particulars to the Conference at its 97th Session.]