Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 1(a) of the Convention. Use of compulsory labour as a punishment for expressing views opposed to the established political, social or economic system. In its earlier comments, the Committee noted that under sections 107(a), 107(d) and 107(e) of Law No. 27 of 1999 on the Revision of the Criminal Code in relation to crimes against state security, sentences of imprisonment (which involve compulsory prison labour under sections 14 and 19 of the Criminal Code and sections 57(1) and 59(2) of the Prisons Regulations) may be imposed 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 Government confirms in its report that, by virtue of the above sections of Law No. 27 of 1999, any person who jeopardizes national stability may be punished with a sentence of imprisonment, which involves the obligation to work. The Government states, however, that such work has the objective of rehabilitating, rather than punishing convicts.

While noting these indications, the Committee once again draws the Government’s attention to the explanations provided in paragraph 154 of its 2007 General Survey on the eradication of forced labour, where it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system. Considering that sections 14 and 19 of the Criminal Code and sections 57(1) and 59(2) of the Prisons Regulations, provide for the obligation to work in prison, prison sentences imposed on persons who express views ideologically opposed to the established system will have an impact on the application of the Convention. The Committee therefore trusts that the necessary measures will be taken in the near future to bring sections 107(a), 107(d) and 107(e) of Law No. 27/1999 into conformity with the Convention, so that persons who peacefully express ideological opposition to the established political, social or economic system cannot be sentenced to a term of imprisonment which includes the obligation to work.

In its earlier comments, the Committee noted that Law No. 9 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 Law provide for the enforcement of those restrictions with penal sanctions “in accordance with the applicable legislation”. The Committee requested the Government to clarify the sanctions applicable in case of non-compliance with Law No. 9/1998, as referred to in the above sections. Noting that the Government’s latest report contains no information on this issue, the Committee hopes that the Government will not fail to provide, in its next report, the information requested.

In its earlier comments, the Committee noted that the Constitutional Court, in its ruling on Case No. 6/PUU-V/2007, found sections 154 and 155 of the Criminal Code to be contrary to the Constitution of 1945. These sections 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 (section 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 (section 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 sections 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 sections 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, under the above provisions of the Criminal Code.

While noting the Government’s statement in its report that the draft revision of the Criminal Code is still not concluded, the Committee expresses the firm hope that the Government will take into account the above 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 new Code as soon as it has been adopted. In the meantime, it requests the Government once again to indicate the manner in which sections 134, 136bis and 137 of the Criminal Code are applied in practice, supplying copies of any court decisions handed down under these provisions.

Article 1(d). Sanctions involving compulsory labour as a punishment for having participated in strikes. In its earlier comments, 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. Noting that the Government’s latest report contains no information in this regard, the Committee recalls, referring also to the explanations contained in paragraph 189 of its 2007 General Survey, that no penalties of imprisonment should be imposed against a worker for having participated peacefully in a strike. Referring also to its comments addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee expresses the firm 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 for the mere fact of a peaceful participation in strikes. Pending the amendment, the Committee once again requests the Government to provide information on the effect given in practice to sections 139 and 185, including copies of the relevant court decisions.