Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Article 1(a) of the Convention. Imposition of penalties involving compulsory labour as a punishment for expressing views opposed to the established political, social or economic system. 1. Penal Code. In its previous comments, the Committee noted that sections 154 and 155 of the Criminal Code establish a 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). It also 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. 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, 136 bis 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. The Constitutional Court stated that the new draft text of the Criminal Code must not include similar provisions. The Committee noted the Government’s indication that amendments to the Criminal Code were ongoing, and that sections 154 and 155 of the Criminal Code do not have any binding legal force with the decision of the Constitutional Court.

The Committee notes the Government’s information in its report that amendments to the Criminal Code are still ongoing. Noting that the Government has been referring to amendments to the Criminal Code since 2005, the Committee once again urges the Government to take the necessary measures to ensure their adoption in the near future, taking into account the rulings of the Constitutional Court. It requests the Government to provide information on any progress made in this regard and to provide a copy of the amendments once adopted.

2. Law No. 27 of 1999 on the Revision of the Criminal Code. In its earlier comments, the Committee noted that under section 107(a), (d) and (e) of Law No. 27 of 1999 on the Revision of the Criminal Code (in relation to crimes against state security), sentences of imprisonment 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. It noted the Government’s statement that Law No. 27 of 1999 cannot be amended due to the mandate stated in Law No. I/MPR/2003, on the status of legislative provisions. Section 2 of Law No. I/MPR/2003 states that Decree No. XXV/MPRS/1966 (which relates to the dissolution of the Communist Party of Indonesia, the prohibition of the Indonesian Communist Party and the prohibition of activities to disseminate and develop a Communist/Marxist–Leninist ideology or doctrine) shall remain valid, and shall be enforced with fairness and respect for the law. Recalling that Article 1(a) prohibits all recourse to compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system, the Committee urged the Government to take the necessary measures to bring section 107(a), (d) and (e) of Law No. 27 of 1999 into conformity with the Convention.

The Committee notes the Government’s information that the Marxism and Communism is considered as an ideology contradicting Pancasila, therefore the teaching and practice of this ideology is banned and punishable under law. The Government states that it will not change its position on this matter. The Government also repeatedly states that the citizens of Indonesia enjoy freedom of expression, and that sanctions of imprisonment shall be imposed only where such expression endangers the national stability. Moreover, the Government indicates that the job training programme in prison is not a form of punishment, but a separate training and capacity-building programme, for which only those who have nearly finished their sentence can be considered eligible. The Committee once again points out that, pursuant to sections 14 and 19 of the Criminal Code and sections 57(1) and 59(2) of the Prisons Regulations, persons sentenced to imprisonment shall perform work imposed on them, which constitutes compulsory prison labour.

The Committee notes with concern that despite raising this issue since 2002, the Government does not intend to take any measures in this regard. The Committee once again reminds the Government 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 (see 2012 General Survey on the fundamental Conventions, paragraph 303). The Committee therefore once again urges the Government to take the necessary measures to bring section 107(a), (d) and (e) of Law No. 27 of 1999 into conformity with the Convention, by clearly restricting the scope of these provisions to situations connected with the use of violence, or incitement to violence, or by repealing sanctions involving compulsory labour thereby ensuring that persons who peacefully express political or ideological views opposed to the established political, social or economic system cannot be sentenced to a term of imprisonment which includes the obligation to work. It once again encourages the Government to pursue an examination of these provisions within the ongoing revision of the Criminal Code and to provide information on any progress made in this regard.

The Committee is raising other matters in a request addressed directly to the Government.