Informe provisional - Informe núm. 310, Junio 1998

1. 432. The Committee examined this case at its meetings in March 1995 (see 297th Report, paras. 484-537, approved by the Governing Body at its 262nd Session (March-April 1995)), March 1996 (see 302nd Report, paras. 447-479, approved by the Governing Body at its 265th Session (March 1996)), November 1996 (see 305th Report, paras. 327-371, approved by the Governing Body at its 267th Session (November 1996)) and November 1997 (see 308th Report, paras. 404-450, approved by the Governing Body at its 270th Session (November 1997)), during which it drew up interim conclusions.
2. 433. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) presented new allegations in a communication dated 6 November 1997. The World Confederation of Labour (WCL) did the same in a communication dated 10 March 1998. It provided additional information in a communication dated 25 May 1998.
3. 434. The Government furnished its observations in a communication dated 16 February 1998.
4. 435. Indonesia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 436. During the course of its previous examination of this case, the Committee had dealt with very serious allegations of continuous violations of trade union rights in Indonesia relating to the denial of the workers' right to establish organizations of their own choosing, the persistent interference by government authorities, the military and employers in trade union activities, and the ongoing restrictions on collective bargaining and strike action. The case had also addressed serious allegations involving the murder, disappearance, arrest and detention of a number of trade union leaders and workers.
2. 437. The Committee had deeply deplored the fact that virtually no remedial action had been taken by the Indonesian authorities. On the contrary, the seriousness of the renewed allegations led it to believe that the general situation of workers in Indonesia had not evolved but was still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.
3. 438. At its November 1997 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee is deeply concerned that no action has been taken by the Government to remedy the situation of workers in Indonesia which is still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.
   • (b) The Committee recalls that Indonesian legislation, which imposes a situation of trade union monopoly by requiring the approval of the SPSI in order for any other union to be registered, comprises requirements that are so stringent as to constitute a major limitation to freedom of association and collective bargaining. The Committee would therefore once again urge the Government to eliminate such impediments so as to ensure that the right of workers to organize and bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.
   • (c) As regards the specific case of the SBSI, the Committee once again urges the Government to take appropriate steps to ensure that it is granted registration without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.
   • (d) The Committee urges the Government to initiate an independent inquiry in order to clearly establish the reasons for Mr. Mulyono's dismissal and, if it appears that he was dismissed for legitimate trade union activities, to take all the necessary measures to grant him the option of being reinstated in his post without delay. The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee urges the Government to indicate without delay whether the 16 workers who were dismissed from the Southern Cross Textile Industry in April 1993 were members of the SBSI and if so to ensure that they are reinstated in their jobs, if they so wish. The Committee requests the Government to keep it informed in this respect.
   • (f) The Committee urges the Government to provide without delay information on: (i) Messrs. Mohammad Ali, 19 (PT Perindoni) and Mulyadi, 24 (PT Ganda Seribu) who were allegedly detained in connection with the April 1994 events in Medan; and (ii) the outcome of Messrs. Icang's and Suryandi's trials. The Committee requests the Government to keep it informed in this regard.
   • (g) Noting that the Government expects that its investigation into Mrs. Marsinah's homicide will be resolved shortly and that the perpetrator will be punished accordingly, the Committee asks the Government to provide information on developments as a matter of urgency. Moreover, the Committee requests the Government to institute an independent judicial inquiry into the homicide of Mrs. Marsinah which occurred over four years ago with a view to punishing those responsible; it requests the Government to keep it informed of the results thereof.
   • (h) Recalling the importance of the principle of a prompt and fair trial by an independent and impartial judiciary, and believing that under the cover of allegations of subversive activities, the charges brought and the measures taken against Mr. Pakpahan are linked to his trade union activities, the Committee urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan and the July 1996 events in Jakarta and to have him released. The Committee further calls on the Government to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities as soon as he is released from hospital. The Committee requests the Government to keep it informed in this respect.
   • (i) The Committee once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director Research, Santosa, Region Coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.
   • (j) The Committee urges the Government to provide information on the situation of Ms. Dita Sari and Mr. Coen Pontoh, two independent union officials, who were allegedly arrested and imprisoned further to their participation in industrial action, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.
   • (k) The Committee calls on the Government to provide information on the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia (PT PSI) in Medan on 11 July 1997 on account of their SBSI membership. It urges the Government to take the necessary steps to ensure that these 18 workers are duly reinstated if they are indeed members of the SBSI.
   • (l) In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the SBSI to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for the Medan and Binjai branches.
   • (m) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.

B. The complainants' further allegations

1. 439. In its communication of 6 November 1997, the IUF contends that on 19 September 1997 two IUF officials -- Ma Wei Pin and Greg Sword, Secretary and President, respectively, of the IUF Asia/Pacific Regional Organization, were detained by police while attending the 2nd Congress of the independent trade union confederation SBSI in Jakarta. After the union congress was broken up by police in riot gear, Ma Wei Pin and Greg Sword were taken to the central Jakarta police station and subsequently kept under police guard until being escorted to the airport on 21 September 1997, from whence they returned to Australia. No charges were laid, nor were they told the reason for their detention.
2. 440. The IUF explains that Ma Wei Pin and Greg Sword (who is also National Secretary of Australia's National Union of Workers and Vice-President of the Australian Council of Trade Unions (ACTU)) attended the SBSI Congress to affirm the IUF's support for freedom of association in Indonesia and in solidarity with SBSI Chairman, Muchtar Pakpahan, who is currently on trial on trumped-up "subversion" charges for which he faces a possible death penalty. The IUF asserts that their detention, and the police action against the peaceful union Congress, constitute a grave violation of basic democratic and trade union rights. Moreover, the actions of the Government also violated the right of the IUF as an international organization of workers to meet and consult with organizations of workers in Indonesia. This action is a clear violation of the freedom of association of both the SBSI, whose Makanan, Minuman, Periwisata, Restaurant, Hotel (Food, Drink, Tourism, Restaurant, Hotel) Federation is affiliated to the IUF, and of the IUF itself.
3. 441. In its communication of 10 March 1998 the WCL states that it has been informed by its affiliate, the SBSI, of the arrest and detention of the following leaders of the independent union: Ms. Farah Diba (Head of Women and Child Labour Department of SBSI); Mr. Yudi Rahmat (Vice-Chairman of the National Board of SBSI); Mr. Yudi Hermanto (Chairman of the SBSI in Padang); Mr. Sukirman (SBSI member from Lampung); Mr. Sanusi (SBSI member of Tanjung Priok-Jakarta) and Messrs. Seno, Mahmut and Sumantri (activists of the SBSI local branch in Serang, West Java).
4. 442. More specifically, the WCL alleges that Ms. Diba was arrested by the Jakarta regional police (POLDA) on 8 March 1998 for staging a street rally in line with the SBSI's protest campaign against rising prices and for decent living conditions of workers. According to Mr. Aritonang, spokesman for the Jakarta police, she will be charged under section 510 of the Criminal Code for conducting an unauthorized demonstration. Section 510 carries a maximum penalty of two weeks' imprisonment. Furthermore, Messrs. Rahmat and Hermanto were arrested on 9 March 1998 for holding an illegal meeting and distributing protest letters to the public. They have not yet been formally charged but the WCL fears that they will be charged under the infamous anti-subversion law which carries a maximum death penalty. As for Messrs. Sukirman and Sanusi, they were arrested on 10 March 1998 and are presently facing police questioning. Mr. Sukirman was arrested because he tried to set up an SBSI section at the plant level in Lampung Utara (South Sumatra). Finally, Messrs. Seno, Mahmut and Sumantri were detained on 10 March 1998 by the police of Serang City at around 1 a.m. SBSI documents which they were carrying were confiscated by the police. The SBSI has no additional news on them.
5. 443. The WCL asserts that the violation of trade union rights in Indonesia has not only been systematic but also particularly brutal. In recent months, this anti-union repression has intensified within the context of the re-election of President Suharto and the ongoing financial crisis facing the country which has witnessed a rising social mobilization of workers, students, NGOs and civil society as a whole. The WCL points out that it is against this background that the SBSI has been waging a campaign for its recognition, the release of its President Muchtar Pakpahan, an end to massive dismissal of workers and to nepotism and corruption in Indonesia. This latest upsurge of repression of SBSI leaders in the exercise of their legitimate trade union activities constitutes once again a violation of the Government's commitments to the ILO. The WCL concludes by insisting on the immediate release of all these detained trade unionists and the respect of freedom of association principles by the Government.
6. 444. Finally, in a communication dated 25 May 1998, the WCL indicates that Mr. Muchtar Pakpahan was released by the Indonesian Government along with a number of other SBSI leaders and activists.

C. The Government's further reply

• Legislative impediments preventing workers from establishing organizations of their own choosing (308th Report, paragraph 450(b))
  445. 445 The Government states that existing labour laws and regulations provide adequate protection for the right to organize and to bargain collectively of workers. Moreover, to facilitate the growth of trade unions, the Minister of Manpower issued Regulation No. 1 of 17 January 1994. Based on this regulation, workers may establish an independent and democratic union in each respective company freely and without any requirement of affiliating with another trade union. According to the data available up to December 1997, 1,230 independent unions have been established at the company level. The newly established company union is required only to submit information on its organization status and members of its executive to the Ministry of Manpower. At the same time, soon after the union is established, it is able to perform its functions and negotiate with employers on drafting collective agreements. Furthermore, the Government points out that sections 27 to 35 of the new Labour Law No. 25 of 1997 stipulates, inter alia, the following: that each worker has the right to organize freely and become a member of a trade union; that each company union is established from the workers, by the workers and for the workers in a democratic way based on a sector of industry; that employers are prohibited from restricting the establishment of trade unions; and that a trade union has the main functions of drawing up collective labour agreements and representing workers in the settlement of industrial disputes.
• Information on Mr. Mulyono (308th Report, paragraph 450(d))
  446. 446 The Government recalls that Mr. Mulyono was dismissed on 6 May 1994, on the grounds that he could not get along with his supervisor and that he frequently created unrest through his influence on other workers. The Government adds that a conciliator from the Ministry of Manpower tried to settle the case in a peaceful manner by inviting the parties to discuss. While the conciliator's proposals were accepted by Mr. Mulyono, they were not acceptable to the company. It was therefore suggested to the company to lodge an appeal to the Regional Committee for Disputes Settlement. On 28 September 1994, this Committee decided to authorize the company to terminate Mr. Mulyono's employment with effect from 19 September 1994. Based on the agreement reached between the parties, Mr. Mulyono accepted the amount of Rs.400,000 in compensation which had to be paid by the company at the latest on 26 September 1994. In the Government's view, the case of Mr. Mulyono's termination of employment by PT Golden Overseas Textile is thus settled.
• Situation prevailing at the Southern Cross Textile Industry (308th Report, paragraph 450(e))
  447. 447 The Government restates that, in 1993, the PT Southern Cross Textile Industry (SCTI) in Jakarta employed 1,500 employees and that since 1974 the SPSI has been established in that company. At the beginning of April 1993, negotiations were held between the SPSI and the employer for a yearly wage increase to be paid on 30 May 1993. At that time, the third CLA was entering its second year. While the negotiations were in process, on 19 April 1993, between 2 p.m. and 6 p.m., a group of workers forced the others to strike for a wage increase. In order to avoid any misconduct and destructive actions, the Government reiterates that the employer and the SPSI agreed to hold negotiations outside the company premises. Beginning on the evening of 22 April 1993 and until the next day at 11.30 a.m., the Government reports that a group of workers closed the company gates preventing the other workers from going to work. As a result of this situation, the management of the company dismissed 16 workers.
• Government investigation into Mrs. Marsinah's death (308th Report, paragraph 450(g))
  448. 448 With regard to Mrs. Marsinah's death, the Government indicates that it still remains a mystery. The Government recalls that Mrs. Marsinah, a young female labour activist, took part in strike action on 3 and 4 May 1993 at PT Catur Putera Surya (CPS) in Sidoarjo, Surabaya, East Java. On 5 May 1993, Mrs. Marsinah did not appear at her workplace. Then, on 8 May 1993, her dead body was found in the jungle of Nganjuk, East Java (about 85 kilometres from Surabaya). Due to the timing of the strike and the death of Mrs. Marsinha, many people, the press, NGOs and even certain diplomatic agencies were very much convinced that the death of Mrs. Marsinah was due to her involvement in the strike. Moreover, there had been great pressure at that time particularly from foreign news agencies which had to some extent influenced the police and court opinions that the murderer was the employer of the company concerned. The Regional Court of Sidoarjo decided to sentence the suspects to imprisonment, namely Mr. Yudi Susanto (company's owner) for seven months; Mr. Yudi Astono (acting manager of PT CPS, Porong branch office) for four years; Mr. Bambang Wuryantoro (Head Division, General Supervisor), Mr. Hidayat (Cashier and Chairman of the SPSI Unit), Mr. As Prayogo (security) and Mr. Suwono (security) for 12 years each; Mr. Karyono Wongso (Head Division, Maintenance Control) and Mr. Suprapto (guard) for 13 years each. Upon appeal, the Surabaya Court later found Mr. Yudi Susanto to be not guilty while the other suspects remained guilty. However, at the end of May 1995, the Supreme Court found all of the suspects to be not guilty. The Government states that since then it has been reinvestigating the case to find out who is the actual murderer of Mrs. Marsinah. It expects that the case will be resolved shortly and that the perpetrator punished accordingly.
• Information on Mr. Muchtar Pakpahan (308th Report, paragraph 450(h))
  449. 449 The Government once again insists on the fact that the charge brought against Mr. Pakpahan in connection with the riot of 27 July 1996 was primarily linked to his position as Chairman of the Steering Committee of MARI (Majelis Aksi Rakyat Indonesia) or Indonesian People's Action Council, and not linked merely to his position as Chairman of the SBSI. The Government points out that he is charged with violating section 1(3) of Act No. 11/PNPS/1963 on combating subversive activities. This case therefore is not related to the struggle for labour but is of a political nature.

D. The Committee's conclusions

1. 450. At the very outset, the Committee must express its serious concern over the fact that the Government has not replied at all to a certain number of allegations or alternatively has replied in a superficial manner to a certain number of other allegations by merely repeating information previously provided. The Committee reminds the Government that the purpose of the procedures established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure that this freedom is respected in law and in fact. While these procedures protect governments against unreasonable accusations, governments on their side must recognize for their part the importance for their credibility of formulating for objective examination detailed replies to such allegations made against them. (See First Report of the Committee, para. 31.) The Committee therefore urges the Government to ensure in future when providing replies to allegations made against it that it present complete, detailed and relevant observations that address the allegations raised in the complaint so that the Committee can proceed to examine these matters in full and considered knowledge of all the facts.
2. 451. The Committee wishes to recall that this case addresses very serious allegations of continuous violations of trade union rights in Indonesia concerning the denial of the workers' right to establish organizations of their own choosing, the persistent interference by government authorities, the military and employers in trade union activities, the ongoing restrictions on collective bargaining and strike action and various acts of anti-union discrimination including dismissals. Furthermore, the Committee wishes to recall its deepest concern over the extreme seriousness of the allegations referring to the murder, disappearance, arrest and detention of a number of trade union leaders and workers.
3. 452. The Committee recalls that, in addition to its four previous examinations of this case, it has already examined, in the course of the last few years, two other cases against Indonesia raising allegations of the same serious nature (see 265th Report, Case No. 1431, paras. 104-137; 295th Report, Case No. 1756, paras. 398-429). The Committee also refers to the direct contacts mission which took place in Indonesia in November 1993, to the extensive discussion in the Conference Committee on the Application of Standards in 1994, 1995 and 1997 and to the numerous relevant comments of the Committee of Experts on the Application of Conventions and Recommendations.
4. 453. In these circumstances, while noting that certain positive steps have recently been taken by the Indonesian authorities with regard to freedom of association, the seriousness of the renewed allegations leads the Committee to believe that the general situation of workers in Indonesia is still characterized by serious infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice, including, inter alia, the arrest, imprisonment and harassment of workers and trade union leaders.
5. 454. As regards the issue of legislative impediments preventing workers from establishing organizations of their own choosing, the Committee notes that, for the most part, the Government merely repeats information provided in its previous report, namely that workers may freely establish an independent and democratic union at the company level based on Ministerial Regulation No. 1 of 17 January 1994. According to available data, up to December 1997 there are about 1,230 such unions at the company level which in addition are not required to be affiliated with another trade union. The Government adds that the new labour law recognizes, inter alia, the right of each worker to organize freely.
6. 455. The Committee notes however that section 33 of this new Law on Manpower Affairs which was promulgated on 3 October 1997 and which will take effect as of 1 October 1998 stipulates that "a workers' union in a company and an association of workers' unions must be registered with the Government pursuant to the prevailing laws" and that this new Law does not appear to contain any provision repealing Ministerial Regulation No. 03/MEN/1993 which provides that, to be registered, a trade union must have at least 100 units at the plant level, 25 organizations at the district level and five organizations at the provincial level; alternatively, it must have at least 10,000 members throughout Indonesia (section 2(a)). Section 2(b) of the same Regulation provides that a federation must comprise at least ten such unions in order to be registered. The Committee therefore feels bound to remind the Government once again that the Indonesian trade union registration system at the national level comprises requirements that are so stringent as to constitute a major limitation to freedom of association since very few trade unions can see their establishment legally recognized. Moreover, the Committee must emphasize in the strongest possible terms to the Government that the legal requirement according to which a trade union is obliged to obtain the recommendation of the Serikat Pekerja Seluruh Indonesia (SPSI) in order to secure registration (under the terms of section 2(c) of Ministerial Regulation No. 03/MEN/1993) constitutes an obstacle to the free establishment of organizations and is, therefore, contrary to freedom of association. The Committee deeply regrets that the new Law on Manpower Affairs of 3 October 1997 does not repeal the above-mentioned legal impediments which negate the right of workers to establish organizations of their own choosing and are, therefore, in clear violation of one of the most basic principles of freedom of association.
7. 456. Furthermore, the Committee notes with regret that the legal impediments described in the preceding paragraph still constitute a major obstacle to collective bargaining since under the terms of section 48(1) of the Law on Manpower Affairs of 1997, a collective labour agreement may only be drawn up by an employer and a registered workers' union. Consequently, the Committee would stress, like the Committee of Experts on the Application of Conventions and Recommendations (see, for example, observation, Report III, Part 1A of 1998, pages 241-242 of the English text) and the Conference Committee on the Application of Standards (ILC, 85th Session, 1997, Provisional Record No. 19, pp. 106-114), that the restrictions on free collective bargaining imposed by Regulation No. 03/MEN/1993 on registered trade unions at the plant, district and provincial levels, constitute a flagrant violation of the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, ratified by Indonesia.
8. 457. In these circumstances, the Committee once again urges the Government to eliminate such impediments (such as section 2(a), (b) and (c) of Ministerial Regulation No. PER-03/MEN/1993) so as to ensure that the right of workers to organize and to bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.
9. 458. Turning to the specific case of the Serikat Buruh Sejahtera Indonesia (SBSI) which has been awaiting its registration for over five years, the Committee deeply deplores that the Government does not even address this very serious issue in its reply. For its part, the Committee wishes to recall that it had noted during its previous examinations of this case (see 297th Report, para. 530; 302nd Report, para. 472, 305th Report, para. 363 and 308th Report, para. 437), that although the legal requirements for registration were very stringent and constituted a serious obstacle to freedom of association, the SBSI had met them all except for obtaining the SPSI's recommendation which in any event was not a valid requirement being contrary to freedom of association principles. The Committee therefore would insist yet again that any government position which favours one organization, in this case the SPSI, or prevents workers from establishing organizations of their own choosing constitutes an act of anti-union discrimination and is contrary to freedom of association principles. The Committee therefore urges the Government to take appropriate steps to ensure that the SBSI is granted registration as a trade union confederation without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.
10. 459. With regard to the situation of Mr. Mulyono who was dismissed from PT Golden Overseas Textile four years ago (6 May 1994), the Government replies that this issue is settled, since based on the agreement reached between the parties, Mr. Mulyono accepted the amount of Rs.400,000 in compensation for his termination of employment by the company. While noting that Mr. Mulyono accepted compensation in September 1994, the Committee wishes to point out that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 707).
11. 460. Regarding the alleged acts of anti-union discrimination carried out against workers of the Southern Cross Textile Industry (SCTI) found to be members of the SBSI, the Committee recalls that the company memorandum according to which action would be taken against any worker in the company found to be a member of the SBSI or openly or covertly organizing for the SBSI was circulated five-and-a-half years ago (23 November 1992). The Committee once again feels obliged to recall that Convention No. 98, ratified by Indonesia, provides that particular protection must be given to workers against dismissal or other prejudices by reason of union membership. Noting that the Government merely repeats its previous statement that 16 workers were dismissed from the SCTI in April 1993, the Committee urges the Government to ensure that these dismissed workers are reinstated in their jobs or similar alternative jobs, if they so wish, and if this is not possible due to the time that has lapsed since the dismissals took place, to ensure that they receive full compensation. The Committee requests the Government to keep it informed in this respect.
12. 461. As regards the arrest and detention of workers involved in the April 1994 events in Medan, the Committee deplores the fact that the Government still has not provided any information on Messrs. Mohammad Ali (PT Perindoni) and Mulyadi (PT Ganda Seribu) who were allegedly arrested and detained in connection with those events. The Committee further deplores the fact that the Government has not provided information requested by the Committee on four previous occasions and which concerns the outcome of the trials of Messrs. Icang and Suryandi whose arrests were allegedly related to the Spring 1994 events in Medan. They were accused of having illegally gathered people without the appropriate permit. The Committee therefore once again urges the Government to provide without delay information on (i) Messrs. Mohammad Ali (PT Perindoni) and Mulyadi (PT Ganda Seribu); and (ii) the outcome of Messrs. Icang's and Suryandi's trials, who were allegedly detained in connection with the April 1994 events in Medan. The Committee requests the Government to keep it informed in this regard.
13. 462. As regards the investigation into the homicide of Mrs. Marsinah, a labour activist, which occurred over five years ago, the Committee profoundly deplores that the circumstances of her death have still not been elucidated by a Government investigation into the matter which commenced in June 1995. In this respect, the Committee would draw the Government's attention to the fact that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. Moreover, the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events (see Digest, op. cit., paras. 51 and 55). Noting with deep regret that the Government has not reported on any progress made in its investigation in shedding any light on this extremely serious incident, the Committee urges the Government to institute without delay an independent judicial inquiry into the homicide of Mrs. Marsinah which occurred over five years ago, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the results thereof.
14. 463. With regard to the specific situation of Mr. Muchtar Pakpahan, the Committee had noted during its previous examination of this case that there were two sets of allegations relating to his case. First of all, although the Supreme Court in September 1995 had overturned two lower court sentences against Mr. Pakpahan on the charge of inciting mass labour unrest in Medan in April 1994, thereby leading to his release after spending more than nine months in prison, the Committee had learnt with deep concern that on 25 October 1996, the Court had reversed its earlier decision and sentenced Mr. Pakpahan to four years' imprisonment on the same charge for which he had previously been released. Noting that the Supreme Court's decision had been influenced by political factors as well as by personal rivalries within the Court, the Committee had deplored this turn of events and had urged the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events. Deeply regretting that the Government has not provided any observations in this respect, the Committee once again urges the Government to drop the above charges against Mr. Pakpahan.
15. 464. In addition, the Committee had noted during its previous examination of this case that although the more recent trial against Mr. Pakpahan, who was charged with subversion on 2 August 1996 in connection with riots which occurred in July 1996 in Jakarta, had been postponed on account of Mr. Pakpahan's poor health, the charges against him had not been dropped. The Committee had expressed its deepest concern since such a subversion charge carries a maximum sentence of the death penalty. Moreover, the Committee had deplored the fact that the Government has not commented on the complainants' lengthy explanations as to why the proceedings of the trial which opened in Jakarta on 12 December 1996 did not meet internationally accepted standards on fair trials and had reminded the Government of the great importance it had always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists were charged with political or criminal offences. The Committee deeply regrets that the Government simply repeats information already provided, namely that the charge brought against Mr. Pakpahan in connection with the riots of 27 July 1996 was not linked to his position as Chairman of the SBSI. For its part, the Committee considers, as before, that the above events complete the picture of active anti-union discrimination on the part of the Government vis-à-vis Mr. Pakpahan and that under the cover of allegations of subversive activities, the charges brought against and the measures taken against Mr. Pakpahan are linked to his trade union activities. The Committee therefore once again urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the July 1996 events in Jakarta and to ensure that he can exercise freely his legitimate trade union activities. The Committee also requests the Government to drop any charges still maintained against the other SBSI leaders and activists. The Committee requests the Government to provide information in this respect as a matter of urgency.
16. 465. Furthermore, the Committee once again regrets that the Government still has not provided information with regard to the alleged anti-union measures taken against SBSI officers following the July 1996 events, including their arrest, detention and interrogation by the police or the military. While persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the Committee once again wishes to recall that the harassment, arrest or detention of trade union leaders for activities connected with the exercise of trade union rights are contrary to the principles of freedom of association. It once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.
17. 466. In addition, the Committee deeply regrets that the Government still has not responded to the more recent allegation that heavy prison sentences were imposed on Ms. Dita Sari and Mr. Coen Pontoh, two union officials of the independent labour organizations Pusat Perjuangan Buruh Indonesia (PPBI) and Serikat Tani Nasional (STN), respectively, for having participated in strike action in the city of Surabaya on 8 July 1996. The Committee recalls that reasons for the industrial action included typical labour demands as well as demands for the repeal of strict security laws and for the military to stop intervening in labour affairs. However, the police and army units intervened and violently broke up the strike action; subsequently, Ms. Dita Sari and Mr. Coen Pontoh were arrested, detained and sentenced to four and six years' imprisonment, respectively, on 22 April 1997. The Committee would once again draw the Government's attention to the principle that in cases of strike movements, the authorities should resort to the use of force only in situations where law and order is seriously threatened. Furthermore, no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike (see Digest, op. cit., paras. 580 and 602). Since these principles do not appear to have been respected in the present case, the Committee is bound to conclude that the Government has failed to demonstrate that the measures taken against these two trade union officials were in no way occasioned by their legitimate trade union activities. The Committee therefore once again urges the Government to provide information on the situation of these two trade union officials, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.
18. 467. Deeply regretting that the Government has not replied to the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia in Medan on 11 July 1997 on account of their SBSI membership, the Committee calls on the Government once again to provide this information without delay; if it appears that these 18 contract labourers are members of SBSI, the Committee strongly urges the Government to take the necessary steps to ensure that they are duly reinstated in their jobs.
19. 468. In addition, the Committee would request the Government to provide without delay its observations on the most recent allegations submitted by the IUF in a communication dated 6 November 1997 on the detention of the Secretary and President of the IUF Asia/Pacific Regional Organization on 19 September 1997. The Committee would further request the Government to reply to the allegations presented by the WCL in a communication dated 10 March 1998 concerning the arrest and detention of eight SBSI leaders and activists in the beginning of March 1998 on account of their legitimate union activities.
20. 469. With regard to the alleged violations of freedom of association reported by the SBSI in its communication dated 11 June 1996, the Committee had requested the complainant to provide additional information in view of the wide discrepancies between the complainants' and the Government's versions of events that occurred. Noting that this information has still not been provided and in order to pronounce itself on the matter in full knowledge of all the facts, the Committee would once again request the SBSI to provide additional information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for Medan and Binjai branches.
21. 470. The Committee notes from the WCL's communication dated 25 May 1998 that Mr. Muchtar Pakpahan, President of the SBSI, as well as a certain number of other SBSI leaders and activists, have very recently been released from prison. The Committee would request the Government to provide the names of all the other SBSI leaders and activists who have been released from prison. The Committee takes note of these developments with interest and considers that they constitute an important and positive step with regard to freedom of association in Indonesia. The Committee expresses the firm hope that this will be but one of a series of measures taken by the Government which will contribute to the positive development of the trade union situation in Indonesia and to the full respect of freedom of association principles.
22. 471. The Committee draws the attention of the Committee of Experts to the legislative aspects of this case in relation to the application of Convention No. 98.
23. 472. Finally, the Committee notes that section 35 of the new Law on Manpower Affairs, which will enter into force on 1 October 1998, stipulates that "provisions on workers' unions shall be regulated further in the law". It is therefore the Committee's understanding that issues relating to the right to organize will be regulated further through the enactment of other provisions, ministerial regulations or the like. The Committee thus hopes that these new legal provisions/regulations will fully comply with freedom of association principles. In this respect, the Committee would suggest that the Government consider availing itself of the technical assistance of the ILO to assist it in ensuring compliance of draft labour legislation with freedom of association principles.