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Bhatara Ibnu Reza, Human Rights Research Coordinator, Indonesian Human Rights Monitor (IMPARSIAL)
Who or what is a human rights defender? Most people think of a human rights defender as a person who works as an advocate or lawyer to defend poor people pro bono or as an activist who opposes the government position. The truth is that a human rights defender is not only an activist or pro bono lawyer but is an individual who promotes human rights. Human rights defenders come from many professions, such as journalists, teachers, lecturers, architects or common people. So long as someone defends his or her rights and other people’s rights, that person is a human rights defender.
Recognition of the role of human rights defenders came in 1998 at the 85th United Nations General Assembly, when it adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, which is also known as the Declaration on Human Rights Defenders. The declaration made clear that the state, individuals, and groups together have the right to protect human rights at the national and international level.
This is the first time in history that under international law rights have been coupled with responsibilities for action, not only for the state as the primary actor, but also for individuals. The declaration does not give a specific definition of a human rights defender; however, in its article 1 it states that,
“Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and national level.”
One definition of a human rights defender is:
“Anyone who, individually or in association with others, promotes and strives for the protection and fulfillment of human rights and basic freedoms, whether at the national or international level, regardless of her or his role in society.” (Forum Asia, Towards More Effective Protection of Human Rights Defenders in Asia, Forum Asia, Bangkok, 2000, p. 99)
Front Line, an international group based in Dublin, Ireland, gives another definition of a human rights defender as “a person who works, non violently, for any or all the rights enshrined in the Universal Declaration of Human Rights” (Indonesia: Murder, Death Threats and Other Forms of Intimidation of Human Rights Defenders, 1998 - 2002, Front Line, Dublin, 2003, p. 1). This definition allows for the full range of rights, not only civil and political rights, but also economic, social and cultural rights.
The lawyer as human rights defender
Lawyers are human rights defenders; however, sometimes this role is not really reflected in their day-to-day work. It is typical in our society for lawyers to be noble brokers and not a noble profession. But there are lawyers who spend all their time to defend poor people, advocate for victims, and also educate people to defend their human rights as guaranteed by the constitution.
Some groups in Indonesia educate young law graduates in the field. The Indonesian Legal Institute Foundation (Yayasan Lembaga Bantuan Hukum Indonesia, or LBH) is a prominent group that gives opportunities for young students and law graduates to put their abilities towards human rights promotion and protection. This institution also has become a legend in the history of Indonesian politics as a locomotive for democracy. The young lawyers are supervised by their seniors and are instructed that they cannot ask for money from their clients or through other means when they practice pro bono. They also get political education so that they have a wide perspective when dealing with cases, rather than looking at them only in terms of legal matters. This is very important, because understanding the background of a law, its genealogy, philosophy and spirit are all important when considering how the law can be used as part of an argument and in order to appreciate the political features of the law.
Law No. 18/2003 concerning advocates created some problems. This is because the law has undermined groups like LBH, as it did not recognize them as places where graduates can obtain a formal internship. The law strictly states that to get a license to practice after passing the bar exam, apprentice lawyers should get an internship in a law firm for two years. However, the regulation has not really had an impact since the Indonesian Bar Association has already recognized the role of some groups such as LBH in educating young lawyers.
Patterns of violence and intimidation
The Special Representative of the UN Secretary General on the Situation of Human Rights Defenders, Hina Jilani, in her report on her visit to Indonesia in 2007 before the seventh session of the Human Rights Council in March 2008 explained that
“Despite visible progress in the country’s democratic development, human rights defenders continue to experience serious constraints in conducting their activities for the protection of human rights. Such constraints are imputable to the continuing activities of the police, the military and other security and intelligence agencies as well as religious fundamentalist groups that are aimed at harassing and intimidating defenders or restricting their access to victims and to sites of human rights violations.”
The common patterns of violence towards Indonesian human rights defenders include hunting down, arbitrary arrests, terror and intimidation, murders, attacks and property damage, raids and shutdowns, unlawful lay offs, criminalization and stigmatization.
In September 2004, Munir Said Thalib, a prominent Indonesian human defender and also a human rights lawyer, was assassinated by the Indonesian intelligence agency while on board a Garuda Airways flight. This case has already been heard and it has been shown that it involved high-ranking officers in the State Intelligence Body (Badan Intelijen Negara). However, the court failed in trying the case due to lack of experience in dealing with conspiracies. The prosecutor also lacked ability and self-confidence to make indictments. In December 2008, the Central Jakarta District Court freed the primary suspect, the former Deputy II, Major General (ret) Muchdi Pr. Based on that judgment, his lawyer tried unsuccessfully to sue witnesses who testified against his client. The failure to reveal what happened in the murder case of Munir has shown how weak Indonesian law enforcement agencies and courts are. This case not only shows how feeble the government’s commitment to protect human rights is, but also how it has become a human rights violator as well.
State institutions responsible to enforce human rights have failed to fulfill the rights of human rights defenders. Numerous cases have shown that state institutions have in fact impeded, violated and disregarded human rights. It is clear that ratification of sets of rights in international law does not automatically develop the government’s sense of these rights.
This is most obvious in a number of state institutions. The police force is a dominant actor in the patterns of violence. The military forces, pamong praja municipal police units (under command of the governor/regent; established by the Dutch Indies Supreme Court, the Hoogerrechetshof) and petty criminals and unknown people are also all involved in violence against human rights defenders around the country, especially in conflict areas such as Papua, where the latter are labeled insurgent supporters, sellers of human rights and recipients of foreign aid. The attorney general impedes and fails to accommodate cases of human rights violations.
Besides threats from the state apparatus, Indonesian human rights defenders also have to face threats from fundamentalist groups. The government fails to take the threats of fundamentalism toward human rights and democracy seriously. Fundamentalism pursues singular social and life systems by denying important rights and principles agreed upon in the constitution. Its rise is evident from the amount of violence and threats by religious-based groups, which in many cases use intimidation and coercion toward different groups to enforce their beliefs. Moreover, they insist on making their belief system into regulations for the standardization of a diverse society.
Another recent pattern is for the state or non-state actors to use the law to criminalize Indonesian human rights defenders by accusing them of defamation. All lawyers in the Aceh Indonesian Legal Aid, for instance, face defamation accusations when they take up their cases. Since they all have to face the charges, they can practically not perform their duties as lawyers. This also happened in South Sulawesi, when Upi Asmaradan, a journalist, faced a defamation charge from the Chief of Police there. In that case the police used the Criminal Code rather than lex specialis under the Press Law.
Conclusion
The lawyer as human rights defender in Indonesia has little protection. Lawyers as human rights defenders are vulnerable. The generators of violence, including agents of the state apparatus and non-state actors, easily attack and harass them. The state also uses law to stop lawyers advocating their human rights cases and accuses them of being criminals along with their clients. This situation contradicts the state’s obligations to promote, protect and fulfill human rights.
Since recognition and protection of human rights defenders is very weak in Indonesia, triggered by the political assassination of Munir, Indonesian human rights defenders urged the parliament for a special law to recognize and protect their position. My organization, IMPARSIAL, led national meetings of human rights defenders in 2006 and 2007, in which it was concluded that Indonesian human rights defenders need to protect themselves if the state cannot give proper protection. IMPARSIAL also urged the establishment of a national network of human rights defenders throughout the nation. Finally, we have called on the UN Human Rights Council to urge the government of Indonesia to
- Harmonize the Declaration on Human Rights Defenders with the national law of Indonesia and revoke all the laws and regulations that are contradictory to the Declaration;
- Pass a law on the protection of human rights defenders;
- End impunity toward the perpetrators of violence against human rights defenders by processing all crimes committed and punishing the actors without any exceptions; and,
- Take follow-up actions in the investigation of the Munir case, and in all other cases involving human rights defenders.
Recognition of human rights defenders in Indonesia would embrace the spirit of the constitution to promote human rights. It is the time for Indonesian human rights defenders to go hand in hand in order to get full recognition and protection from the state.
Posted on 2009-06-23
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