Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Abolition of Forced Labour Convention, 1957 (No. 105) - Indonesia (Ratification: 1999)

The Committee notes the Government’s report, as well as copies of relevant legislative texts attached as appendices. The Committee also notes the discussion of the Committee on the Application of Standards which took place during the 97th Session of the Conference in June 2008, and the conclusions of that Committee, which, inter alia, called upon the Government to supply detailed information to the Committee in its next report on the progress made in bringing its legislation into conformity with the requirements of the Convention. The Committee notes, however, that the Government’s report contains little new information in reply to the Committee’s earlier comments. The Committee therefore hopes that the Government’s next report will contain full particulars on the matters raised by the Committee in its earlier comments and discussed below. The Committee also hopes that the Government will consider the possibility of availing itself of ILO technical assistance, in order to facilitate the process of bringing its law and practice into conformity with the Convention.

Article 1(a) of the Convention. Use of forced labour as a punishment for expressing views opposed to the established political, social or economic system. 1. The Committee notes the text supplied by the Government, indicating that Presidential Decree No. 11 of 1963 on the eradication of subversive or rebellious activities, which contained provisions punishing the distortion, undermining or deviation from the ideology of Pancasila State or the broad policy lines of the State, was repealed by Law No. 26 of 1999. While considering this to be a step forward, the Committee observes, as it has in comments addressed to the Government since 2003, that sentences of imprisonment (which involve compulsory prison labour under articles 14 and 19 of the Criminal Code and articles 57(1) and 59(2) of the Prisons Regulations) may be imposed under sections 107(a), 107(d) and 107(e) of Law No. 27 of 1999 on Revision of the Criminal Code in relation to crimes against state security, upon any person who disseminates or develops the teachings of “Communism/Marxism-Leninism” orally, in writing or through any media, or establishes an organization based on such teachings, or establishes relations with such an organization, with a view to replacing Pancasila as the State’s foundation. The Committee has repeatedly requested that the Government take necessary measures to repeal or amend sections 107(a), 107(d) and 107(e) of Law No. 27/1999, in order to bring the legislation into conformity with the Convention.

The Committee notes that once again the Government’s report contains no information about steps being taken or contemplated towards that end. It notes the statement of the Government representative during the discussion of this case by the Conference Committee in June 2008 that Law No. 27/1999 was developed by members of Parliament and adopted through a national consensus and therefore remained valid. While noting this statement, the Committee shares the view of the Conference Committee that compliance with ratified Conventions requires steps beyond reliance on national consensus. The Committee expresses the firm hope that the necessary measures will be taken without delay to bring sections 107(a), 107(d) and 107(e) of Law No. 27/1999 into conformity with the Convention, and that the Government will soon be in a position to report on progress achieved in that regard.

2. In its previous comments the Committee has noted that Law No. 9 of 1998 on the Freedom of Expression in Public imposes certain restrictions on the expression of ideas in public during public gatherings, demonstrations, parades, etc., and that sections 15, 16, and 17 of the Act provide for the enforcement of those restrictions with penal sanctions by way of reference to “applicable” criminal provisions. The Committee requested the Government to identify those sanctions, supplying copies of the relevant texts, and to provide information on the application of Law No. 9/1998 in practice, including copies of court decisions defining or illustrating its scope, so as to enable the Committee to assess its conformity with the Convention.

The Committee notes that during the discussion of this case by the Conference Committee in June of 2008, the Government representative stated only that sanctions for non-compliance with Law No. 9/1998 were contained in sections 15, 16 and 17 of that Act. The Committee notes that the Government has supplied a copy of the Act, but once again has provided no information that could identify the applicable criminal penalties, as referred to in sections 15, 16 and 17; nor has it provided information on the application of the Act in practice, including copies of court decisions defining or illustrating its scope. The Committee trusts that the Government will provide the information requested above in its next report.

3. The Committee notes the statement of the Government’s representative in the Conference Committee indicating that the draft revision of the Criminal Code was still not completed. In its previous observation, the Committee noted information indicating that the Constitutional Court, in its ruling on Case No. 6/PUU-V/2007, found articles 154 and 155 of the Criminal Code to be contrary to the Constitution of 1945. These articles establish the penalty of imprisonment (involving compulsory labour) for up to seven years and four and a half years, respectively, for a person who publicly gives expression to feelings of hostility, hatred or contempt against the Government (article 154) or who disseminates, openly demonstrates or puts up a writing containing such feelings, with the intent to give publicity to the contents or to enhance the publicity thereof (article 155). The Committee further noted that, in ruling No. 013‑022/PUU‑IV/2006, the Constitutional Court found that it was inappropriate for Indonesia to maintain articles 134, 136bis and 137 of the Criminal Code (respecting deliberate insults against the President or the Vice‑President), since they negate the principle of equality before the law, diminish freedom of expression and opinion, freedom of information and the principle of legal certainty. Accordingly, in the view of the Constitutional Court, the new draft text of the Criminal Code must also exclude provisions that are identical or similar to those of articles 134, 136bis and 137 of the Criminal Code.

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

The Committee once again expresses its deep concern and hopes that the Government will take into account the rulings of the Constitutional Court in the context of the adoption of the new Criminal Code. It requests the Government to provide a copy of the Code as soon as it has been adopted. In the meantime, it requests the Government to indicate the manner in which articles 106, 134, 136bis and 137 of the Penal Code are applied in practice, with copies of any court rulings issued thereunder.

Article 1(d). Recourse to compulsory labour as a punishment for having participated in strikes. In its previous observation the Committee requested the Government to take appropriate measures to amend sections 139 and 185 of the Manpower Act so as to limit their scope to essential services in the strict sense of the term and to ensure that no penalty involving compulsory labour can be imposed on persons participating in strikes, as required by the Convention. The Committee notes the conclusions of the Conference Committee referred to above, in which it urged the Government to take, without delay, all the necessary measures to eliminate sanctions involving compulsory labour that could be imposed for participation in strikes, so as to bring its law and practice into conformity with the Convention.

The Committee once again expresses the hope that the Government will take measures without further delay to amend sections 139 and 185 of the Manpower Act so as to ensure that no penalty involving compulsory labour can be imposed on persons participating in strikes. While awaiting this amendment, the Committee once again requests the Government to provide information on the effect given in practice to articles 139 and 185, including copies of court decisions defining or illustrating their scope.