Informe provisional - Informe núm. 308, Noviembre 1997

1. 404. 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)) and November 1996 (see 305th Report, paras. 327-371, approved by the Governing Body at its 267th Session (November 1996)), during which it drew up interim conclusions.
2. 405. The World Confederation of Labour (WCL) presented new allegations in a communication dated 29 November 1996. The International Confederation of Free Trade Unions (ICFTU) did the same in communications dated 3 and 23 April 1997. The Serikat Buruh Sejahtera (SBSI) submitted new allegations and further information in communications dated 20 February, 6 May and 10 and 22 July 1997.
3. 406. The Government furnished its observations in communications dated 7 March and 6 and 25 June and 11 August 1997.
4. 407. 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. 408. 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 inference 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. 409. The Committee had, during the course of its previous examination of the case, 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. 410. At its November 1996 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) Recalling that Indonesian legislation comprises requirements that are so stringent as to constitute a major limitation to freedom of association, the Committee once again urges the Government to eliminate such impediments (such as section 2(c) of Ministerial Regulation No. Per-03/Men/1993) so as to ensure that the right of workers to organize is fully recognized in law and in practice and to keep it informed in this respect.
   • (b) With regard to the specific case of the SBSI, the Committee urges again the Government to take all the necessary measures to ensure that it be registered without delay and to keep it informed in this respect.
   • (c) The Committee urges the Government: (i) to take without delay the necessary measures for Mr. Ariesha's immediate release if it appears that he is detained for activities connected with the legitimate exercise of trade union rights; and (ii) 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.
   • (d) The Committee urges the Government to provide information without delay on the allegation of acts of anti-union discrimination against any workers of the Southern Cross Textile Company found to be members of the SBSI and to keep it informed in this respect.
   • (e) The Committee urges the Government to provide without delay information on: (i) the outcome of Messrs. Icang's and Suryandi's trials; and (ii) Messrs. Mahammad Ali, 19 (PT Peridoni), and Mulyadi, 24 (PT Ganda Seribu), 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.
   • (f) The Committee once again requests the Government to keep it informed of the results of the police investigation with regard to Mrs. Marsinah's homicide and to take the necessary measures to bring the perpetrators to justice.
   • (g) In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the complainants 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.
   • (h) Believing that there exists a strong presumption, which the Government has not reversed, to the effect 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 urges the Government to take without delay the necessary measures for Mr. Pakpahan's release, to drop the criminal charges related to the July 1996 events and to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities. The Committee requests the Government to keep it informed in this respect.
   • (i) Insisting on the fact 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, the Committee 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 the arrest, interrogation and charges brought against them. The Committee requests the Government to keep it informed.
   • (j) 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 with the application of Convention No. 98.

B. The complainants' further allegations

1. 411. In its communication of 29 November 1996, the World Confederation of Labour (WCL) recalls that Mr. Muchtar Pakpahan had been sentenced to three years' imprisonment by the Medan Court on charges of masterminding strikes in Medan in 1994. This sentence was increased to four years following an appeal. Following further appeal to the Supreme Court of Indonesia, he was released without any requirement on 29 September 1995, after spending nine months and ten days in prison. The complainant states that it has now been informed that the Supreme Court has sentenced Mr. Pakpahan to four years' imprisonment on the same charges (of masterminding the 1994 strikes in Medan) for which he had previously been released. The complainant considers this volte-face of the Supreme Court not only to be a travesty of justice and a contravention of Indonesia's Criminal Code, but also a serious contravention of the ILO Constitution. The complainant adds that Mr. Pakpahan meanwhile is still in prison on charges of subversion following the social unrest of July 1996 and therefore it calls upon the ILO to do everything in its power to seek the respect of trade union and human rights in Indonesia.
2. 412. In its initial communication of 3 April 1997, the International Confederation of Free Trade Unions (ICFTU) also refers to the fact that on 25 October 1996 the Supreme Court of Indonesia, acting on a motion by the Head of the North Sumatra District Prosecutor's Office, reversed its earlier decision of September 1995 to quash a four-year prison sentence imposed on Mr. Pakpahan in January 1995. The complainant points out that the Supreme Court's reversal decision drew great concern among legal experts in Indonesia and abroad. More specifically the Supreme Court's decision constituted the very first case, in their recollection, in which a decision review by the Court had been initiated by the Attorney General's Office. It had hitherto been understood by the legal community that the Penal Code (KUHP) granted the right to apply for a Supreme Court decision's review only to the defendant or to his relatives. Many top legal experts stressed that, while an appeal could be filed both by a defendant and the public prosecutor, a demand for a trial review by the Supreme Court could only emanate from the defendant. Moreover the Supreme Court could not accept a demand for a trial review in a case of acquittal.
3. 413. The complainant further points out that the Supreme Court's decision was highly likely to have been influenced by political factors, as well as by personal rivalries within the Court itself. The decision to overturn the Court's previous acquittal was taken by a panel of judges headed by Supreme Court Chief Justice Soerjono, who earlier had been involved in an ongoing dispute with Deputy Chief Justice Adi Sutjipto Andojo. The latter had chaired the Supreme Court panel which had overturned Mr. Pakpahan's four-year sentence in September 1995. Following this and other decisions by Justice Andojo during the course of which he accused Supreme Court colleagues, including Chief Justice Soerjono himself, of colluding and accepting bribes, the latter took a number of measures against Justice Andojo, including relieving him of his responsibility of allocating cases at the Supreme Court. Chief Justice Soerjono then proceeded to appeal to Indonesia's President, Mr. Suharto, to dismiss Justice Andojo from the Supreme Court. It is also noteworthy that, in accordance with Presidential Decree No. 82 of 1971, judges like all other civil servants and state employees are required to be members of the Indonesia Civil Service Corps (KORPRI), which is under the direction of the Minister for Home Affairs. KORPRI is controlled by the ruling GOLKAR party and requires its members to comply with its rules and policy guidelines, which are enforceable by sanctions. Such requirements undermine the neutrality of the judicial power. Under these circumstances, the judiciary is prone to take decisions which favour the Government. The judges believe that if they rule against an official policy, they may be accused of lacking nationalism or acting against the national interest.
4. 414. The complainant then refers to the current trial under way against Mr. Pakpahan who was charged on 2 August 1996 with subversion which carries a sentence ranging from nine years' imprisonment to the death penalty. It recalls that Mr. Pakpahan was accused of having masterminded the opposition demonstration of 27 July 1996 during which thousands of pro-democracy activists protested against the violent police raid on the headquarters of the PDI, a legally recognized opposition party. The complainant contends that the conditions and procedures of the trial, which opened in Jakarta on 12 December 1996 and at which it was represented, did not meet internationally accepted standards on fair trials, which is further evidence that political factors, and not due legal process, are likely to determine the court's decision. The complainant then goes on to describe why this was in its view a show-trial. From the outset, the chief judge adopted a partial and hostile attitude towards the defence lawyers. He demanded that they produce a document from Mr. Pakpahan authorizing them to represent him. When that was duly done, he ordered them to produce their national identity cards. When the trial resumed on 9 January 1997, Mr. Pakpahan's lawyer, Bambang Widjoyanto, was asked to be a prosecution witness. He and the other defence lawyers immediately argued that he could not be a witness against his very client as this would violate the legal code of ethics and the principle of "privileged information between lawyer and client". Then the judge advised Bambang that under the criminal code he could be charged with subversion for refusing to serve as a witness. After considerable debate, the judge told Bambang that it was really up to him to refuse to be a witness and continue to serve as Mr. Pakpahan's lawyer. During this and subsequent court sessions, the presiding Judge Jasuli P. Sudibyo did most of the questioning of the witnesses, often leading with questions aimed at incriminating Mr. Pakpahan, and not allowing the defence to question the witnesses. In particular, defence lawyers strongly protested about the treatment of witness Berarfatia Binti, General Secretary of SBSI, who was insulted and threatened in court by the presiding judge after she departed from statements given during interrogation which she claimed was held under duress. At a hearing on 20 January 1997, Judge Sudibyo ordered Berarfatia to be guarded for five hours in a secluded room in order that she "clearly reconsider" the statements which she had made before the court and threatened her, in case she persisted with her version of events, with a week-long prison term in order that she "clear up her mind and tell the truth".
5. 415. Eventually, the perceived manipulation of the trial's proceedings by the presiding judge and the prosecution led the defence lawyers to jointly issue a letter, on 29 January 1997, addressed to the Head of Supervising Judge for Jakarta's Regional High Court. In their document, the lawyers forcefully argued against the unfair treatment of witnesses and of themselves by the judge and the prosecutor, and maintained that, should the situation continue, not only would the trial itself be severely flawed, but Indonesia's image would be seriously affected. According to the complainant, it is worth noting that the prosecutors have referred very little in court to the riots, since they apparently cannot link Mr. Pakpahan to the violence. The prosecution's case against Mr. Pakpahan now rests in a book he wrote, contrasting the difference in incomes between rich and poor in Indonesia, speeches, SBSI news releases and a music cassette of workers' songs. The complainant concludes by stating that, as of the date of writing, the trial of Mr. Pakpahan has been postponed on health grounds; following several unsuccessful requests, the court finally allowed the defendant to receive treatment at a civilian hospital of his choice, on condition however that he fully support the costs of the six-strong police unit guarding him at the hospital, the latter itself under additional army surveillance.
6. 416. In its communication of 23 April 1997, the complainant asserts that the Government continues to systematically violate trade union rights as demonstrated by the heavy prison sentences imposed on two independent labour activists in the city of Surabaya on 22 April 1997. Dita Indah Sari, 30, and Coen Hussein Pontoh, 27, who were leaders of the independent labour organizations Pusat Perjuangan Buruh Indonesia (PPBI) or Centre for Indonesia's Workers' Struggle and Serikat Tani Nasional (STN) or National Peasants' Association, were sentenced to six and four years' imprisonment, respectively, for "manipulating, undermining and deviating from state policy guidelines", i.e. for subversive activities. According to the complainant, however, they were both arrested in connection with a wave of workers' protests with which they were associated to a significant extent and which took place during the first half of 1996. For example, in West Java Province, 63 strikes were officially reported in April, May and June 1996. In Bakasi, an industrial area west of Jakarta, there were 37 strikes recorded in the first nine months of the year, involving 27,000 workers. The main demand of striking workers was payment of the new minimum wage and other typical labour demands.
7. 417. The complainant goes on to describe how Ms. Dita Sari and Mr. Coen Pontoh were arrested. A huge workers' strike took place in Surabaya, Indonesia's second largest city, on 8 July 1996. Reasons for the industrial action included demands for a raise in the minimum wage, a wage-slip to accompany payment of wages as well as the repeal of five strict security laws adopted in the 1980s. Workers also demanded that the military stop intervening in labour affairs (according to the complainant, pay-offs to military or administration officials, or "hidden costs", can make up to 30 per cent or more of production costs whilst workers' actual wages amount to only 8-9 per cent of production costs). Up to 15,000 workers took to the streets, in two groups, and attempted to merge into one column in order to march before the local assembly and labour ministry offices. Police and army units prevented the two groups from merging by force. Scores of demonstrators were beaten and a dozen were rushed to the hospital. The police arrested and questioned 35 demonstrators. Most were later released but Ms. Dita Sari and Mr. Coen Pontoh remained in detention and were later sentenced to imprisonment, as indicated earlier on. The sentencing of these two union officials to six and four years' imprisonment, respectively, constitutes a severe breach of freedom of association principles since they were both clearly arrested for carrying out legitimate trade union activities.
8. 418. In its communication of 20 February 1997, the Serikat Buruh Sejahtera (SBSI) states that the Government continues to intimidate SBSI members, as was the case with Mr. Supandi, who is an employee of the Andatu Lestari Plywood Company in Lampung in Sumatra. The SBSI indicates that on 27 January 1997 Mr. Supandi was called to the head office by the owner of the company. The regional manpower officer Mr. K. Parangin-angin as well as a few members of the government-owned trade union SPSI were there. These persons allegedly insisted that Mr. Supandi stop carrying out further SBSI activities since SPSI was already active there. As Mr. Supandi refused to yield to this pressure, Mr. Parangin-angin requested the company to dismiss him, stating that the SBSI was similar to the outlawed Indonesian Communist Party. The complainant points out that while Mr. Supandi has not been dismissed as yet, this pressure exercised on Mr. Supandi has forced the SBSI at the plant level in Lampung to adopt a low profile.
9. 419. In its more recent communications, the complainant states that about six persons from the military went to the SBSI Binjai branch office in North Sumatera on 3 May 1997 and questioned the vice-chairman of the branch, Mr. Arias Hia, as to whether SBSI had a valid permit to operate there. These persons proceeded to confiscate all SBSI documents and material in the office and then took Mr. Arias Hia into their custody. Mr. Arias Hia was detained from 3 to 13 May without any grounds. Then on 20 June the local manpower authority of Binjai sent a letter (No. B-492/W2/K-2/1997) to SBSI banning all its activities in that region. Its justification for doing so was that, under the terms of Manpower Regulation No. Per 03/Men/1993, the Government could only recognize one union (the SPSI) in Indonesia. Finally, the complainant alleges that, on 11 July 1997, 18 contract labourers were dismissed from "PT Pelangi Selaras Indonesia (PSI)" in Medan in North Sumatra because they were SBSI members. Initially, these workers had asked the company for an annual bonus and social insurance. PTPSI however rejected their demands and took their case to the local manpower office which approved these workers' dismissal. The reason for this was that under Indonesian legislation the only union that could be recognized and therefore active in Indonesia was the SPSI.

C. The Government's further reply

• Legislative impediments preventing workers from establishing organizations of their own choosing (305th Report, paragraph 371(a))
  420. 420 The Government states that Indonesian laws and regulations including the Constitution of 1945 guarantee the right to organize of workers. Moreover, following widespread criticism from home and abroad on the right of workers to establish their own organizations, 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 now, there are about 1,200 independent unions 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 function and negotiate with employers on drafting collective agreements. Each factory-based trade union can stay as an independent union without necessarily affiliating with SPSI or may decide to join SPSI. The Government points out that the essence of Conventions Nos. 87 and No. 98 is that all workers in each company should have the right to establish a trade union. The main purpose of that trade union is to negotiate with the employer for better standards of living of those workers and their families. According to the Government, these criteria have been followed by the SPSI and the 1,200 independent factory-based trade unions or Serikat Pekerja Tingkat Persusahaan, SPTP.
• Registration of the SBSI (305th Report, paragraph 371(b))
  421. 421 the Government points out that the so-called Serikat Buruh Sejahtera Indonesia was formed in April 1992 by elements of a political party and human rights movements. So far, it has not been proven that this organization was established by the workers or their representatives at the company level. Moreover, it has not been proven that its objective is to pursue collective labour agreements. Its inception and recent evidence show that SBSI is more concerned with politics rather than labour issues. The Government states that the courts will decide whether the SBSI has a right to exist or not. Therefore, if the SBSI should exist, it should be categorized as a non-governmental organization rather than a trade union. As an NGO, it may follow Law No. 8 Year 1985 on the principles of social organization. As an NGO, SBSI of course may have particular programmes relating to labour issues such as empowering trade unions through workers' education, helping trade unions in court, etc., but it should not duplicate or take away the roles and functions of trade unions.
• Information on Mr. Ariesha (305th Report, paragraph 371(c)(i))
  422. 422 The Government states that Mr. Ariesha was charged with inciting workers to stage demonstrations which degenerated into riots. The State Court of Medan sentenced him to one year in jail while the High Court of Medan gave an additional sentence of two years in jail. The Government indicates that he has completed his punishment.
• Information on Mr. Mulyono (305th Report, paragraph 371(c)(ii))
  423. 423 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 (305th Report, paragraph 371(d))
  424. 424 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.
• April 1994 events in Medan; arrests, trials and detention of workers (305th Report, paragraphs 365 and 371(e))
  425. 425 As regards the April 1994 events in Medan, the Government reiterates that these riots had been planned long in advance. The persons behind these illegal acts had been prosecuted and sentenced pursuant to laws and regulations in force by independent and impartial tribunals. Moreover, the Government once again provides information on 28 workers arrested, detained and sentenced in connection with the events in Medan. (The names of these persons were already listed in Annex 1 of the Committee's 305th Report.) The Government recalls that all of them were sued for inciting workers to riot and sentenced to three to six months' imprisonment. It points out that they have all completed their punishment.
• Government investigation into Mrs. Marsinah's death (305th Report, paragraph 371(f))
  426. 426 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 (305th Report, paragraph 371(h))
  427. 427 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. The Government reaffirms its intentions to take legal action for any activity carried out in violation of existing legislation.
• Information on intimidation of Mr. Supandi, SBSI activist (complainant's additional information)
  428. 428 With regard to the alleged harassment of Mr. Supandi, an employee of Andatu Lestari Plywood Company in Lampung and an SBSI member, the Government responds that any matter of common interest arising in any company should be resolved through dialogue by involving all parties concerned, namely the representatives of the company, the workers and the Regional Office of the Manpower Department, and based on the principle of consensus. In the Government's view, this was the case on 27 January 1997. Moreover, although it is alleged that the official from the Department of Manpower asked the company to dismiss Mr. Supandi, the Government points out that Mr. Supandi is still working with the company. Finally, although it is claimed that the same government official identified the SBSI as being similar to the outlawed Indonesian Communist Party, the Government indicates that there is not a single piece of legislation stipulating the SBSI as being associated with the banned Communist Party.
• Information on the detention of Mr. Aries Hia, Vice-Chairman of the SBSI Binjai branch office, North Sumatra (complainant's additional information)
  429. 429 Regarding the alleged detention of Mr. Aries Hia, Vice-Chairman of the SBSI Binjai branch office in May 1997, the Government responds that Mr. Aries Hia had been summoned several times by the office of the Department of Manpower in Binjai to provide some clarification on the establishment of the SBSI's branch in Binjai in April 1997. The Government explains that such clarification is required by it whenever the SBSI establishes a branch anywhere in Indonesia since the Government still has not recognized the SBSI's existence due to the fact that it fails to abide by the relevant provisions of the national legislation. Since Mr. Aries Hia had not responded to the summons, an officer of the Department of Manpower in Binjai, accompanied by a law enforcement official, visited Mr. Aries Hia in his office on 3 May 1997. While questioning Mr. Aries Hia, the officer discovered a document in the office which discredited the Government, insulted the President and his family (punishable by law), and finally requested the people to boycott the 1997 national election. National legislation stipulates that whoever possesses documents, the substance of which could threaten public order and well being, can be summoned for questioning. Thus, Mr. Aries Hia was summoned to Kodim 0203 in Binjai where he stayed for four days to further clarify his intention on keeping such a document in the SBSI branch office in Binjai. After having given his explanation on the matter, Mr. Aries Hia was allowed to leave the office of Kodim 0203.

D. The Committee's conclusions

1. 430. The Committee wishes to recall that this case addresses very serious allegations of continuous violations of trade union rights in Indonesia related 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. Furthermore, the Committee wishes to recall its deepest concern over the extreme seriousness of the allegations referring to murder, disappearance, arrest and detention of a number of trade union leaders and workers.
2. 431. The Committee recalls that, in addition to its three 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 contact 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.
3. 432. In these circumstances, the Committee cannot but again deeply deplore that it appears that no remedial action has been taken by the Indonesian authorities. On the contrary, the seriousness of the renewed allegations leads it to believe that the general situation of workers in Indonesia has not evolved but 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, including, inter alia, the arrest, imprisonment and harassment of workers and trade union leaders.
4. 433. As regards the issue of legislative impediments preventing workers from establishing organizations of their own choosing, the Committee profoundly regrets that the Government has not provided any positive information on this matter. The Committee notes that 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, there are about 1,200 such unions at the company level which in addition are not required to be affiliated with the Serikat Pekerja Seluruh Indonesia (SPSI).
5. 434. As a result, the Committee would once again recall that the legal requirement according to which an Indonesian trade union is obliged to obtain the SPSI's recommendation in order to be legally recognized constitutes an obstacle to the free establishment of organizations and is, therfore, contrary to freedom of association. The Committee also feels bound to remind the Government 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; for instance, section 2(a) of Ministerial Regulation No. Per-03/MEN/1993 provides that a labour union can be registered if it has at least 100 units (work centres) at the plant level, 25 organizations at the district level and five organizations at the provincial level, or, alternatively 10,000 members throughout Indonesia. The Committee recalls that these legal impediments 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.
6. 435. Moreover, 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 1997, page 234 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.
7. 436. In these circumstances, the Committee once again urges the Government to eliminate such impediments (such as section 2(a) 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.
8. 437. Turning to the specific case of the SBSI which has been awaiting its registration for more than five years, the Committee deeply regrets that the Government resorts to its previous argument that the SBSI is a political organization rather than one which is concerned with labour issues. The Committee would insist once again that it cannot accept the Government's argument with regard to the political nature of the SBSI as a justification for not proceeding with the SBSI's registration. Moreover, the Government contradicts itself by indicating that the courts will decide whether the SBSI has a right to exist or not but that should that right be recognized, the Government will categorize it as a non-governmental organization rather than a trade union. Finally, at various points in its reply, the Government states that it still has not recognized the SBSI due to the fact that the latter fails to abide by the relevant provisions of the national legislation. 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 and 305th Report, para. 363), 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 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 therfore 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.
9. 438. With regard to Mr. Ariesha's imprisonment following the April 1994 events in Medan, the Committee notes the Government's statement that Mr. Ariesha was charged with inciting workers to stage demonstrations which degenerated into riots. He was sentenced to one year in jail initially but was given an additional sentence of two years' in jail upon appeal to the High Court of Medan. While noting that Mr. Ariesha has completed his punishment, the Committee wishes to recall that allegations of criminal conduct should not be used to harass trade unionists by reason of their membership or activities and that the sentencing of trade unionists to long periods of imprisonment, very often on grounds of "disturbance of public order" or similar general grounds, makes it possible to repress activities of a trade union nature (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 43 and 64).
10. 439. With regard to Mr. Mulyono's inquiry (305th Report, paragraph 371(c)) as well as to the alleged acts of anti-union discrimination against workers of the Southern Cross Textile Industry (SCTI) found to be members of SBSI (305th Report, paragraph 371(d)), the Committee deeply regrets that the Government simply repeats information already provided. The Committee recalls that Mr. Mulyono was dismissed on vague grounds from PT Golden Overseas Textile more than three years ago. The Committee therefore urges the Government to initiate an independent inquiry in order to clearly establish the reasons of 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. Furthermore, concerning the Southern Cross Textile Industry (SCTI), the Committee recalls that the company memo 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 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 the Government's statement that 16 workers were dismissed from the SCTI in April 1993, the Committee urges the Government to indicate without delay whether these dismissed workers 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.
11. 440. The Committee notes that the Government once again provides information on 28 workers arrested, detained and sentenced in connection with the April 1994 events in Medan, all of whom have completed their punishment. However, the Committee deplores the fact that the Government still has not provided any information on Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu) who were also allegedly arrested and detained in connection with the events in Medan. The Committee further deplores the fact that the Government has not provided information requested by the Committee on three 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. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (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.
12. 441. As regards the investigation into Mrs. Marsinah's homicide which occurred over four years ago, the Committee profoundly regrets 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. 55 and 51). In this regard, the Committee notes that the Government expects that the case will be resolved shortly and the perpetrator punished accordingly. It 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 with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed of the results of such an inquiry.
13. 442. With regard to the specific situation of Mr. Muchtar Pakpahan, Chairman of the SBSI, the Committee notes that there are two sets of allegations relating to his case, the nature of both of which are extremely serious. First of all, the Committee recalls that the Supreme Court in September 1995 overturned two lower court sentences against Mr. Pakpahan on the charge of inciting mass labour unrest in Medan in April 1994; consequently, Mr. Pakpahan was released without any requirement by the Supreme Court after spending more than nine months in prison. The Committee is gravely concerned to learn that on 25 October 1996 the Supreme Court reversed its earlier decision of September 1995 and sentenced Mr. Pakpahan to four years' imprisonment on the same charge (of masterminding the 1994 strikes in Medan) for which he had previously been released. The Committee notes that the Government does not refute the complainants' detailed allegations that the Supreme Court's decision, which was in violation of the Indonesian Criminal Code, was influenced by political factors, as well as by personal rivalries within the Court. The Committee deplores this turn of events, which in addition to undermining the independence and impartiality of the judiciary, is in flagrant violation of Article 14(7) of the United Nations International Covenant on Civil and Political Rights which stipulates that "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." Consequently, 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 to have him released.
14. 443. In addition, the Committee notes 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, has been postponed on account of Mr. Pakpahan's poor health, the charges against him have not been dropped. The Committee must express its deepest concern since such a subversion charge carries a maximum sentence of the death penalty. Moreover, the Committee deplores 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. In this respect, the Committee would remind the Government of the great importance it has 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 are charged with political or criminal offences (see Digest, op. cit., para. 109).
15. 444. The Committee considers that the above events complete the picture of active anti-union discrimination on the part of the Government vis-à-vis Mr. Pakpahan and therefore cannot concur with the Government 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. On the contrary, the Committee considers 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 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 as soon as he is released from hospital. The Committee requests the Government to keep it informed in this respect.
16. 445. Furthermore, the Committee deplores 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. 446. In addition, the Committee deeply regrets that the Government 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 understands 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 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 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. 447. As regards the alleged harassment of Mr. Supandi, an employee of the Andatu Lestari Plywood Company in Lampung and an SBSI member, by an official from the Department of Manpower who asked the Company to dismiss Mr. Supandi on account of the latter's refusal to stop carrying out further SBSI activities, the Government replies that Mr. Supandi is still working with the Company. Similarly, regarding the alleged detention of Mr. Aries Hia, Vice-Chairman of the SBSI Binjai branch office in May 1997, the Committee observes that the Government acknowledges that Mr. Aries Hia was detained for four days to provide some clarification on the newly established SBSI branch office in Binjai as well as to explain the presence of a document in this office which, amongst other things, discredited the Government. Noting that the Government does not deny that the above two SBSI officials were intimidated and detained, respectively, the Committee would insist on the fact that the harassment and detention, even if only briefly, of trade union leaders or members on account of their trade union membership or activities (in the present two cases, SBSI membership and corresponding activities) are contrary to the principles of freedom of association. Finally, noting 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 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. 448. 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.
20. 449. The Committee draws the attention of the Committee of Experts to the legislative aspects of this case in relation with the application of Convention No. 98.