Parliament
The Dismissal of Pasek
Last Monday (13/01), the House of Representatives Secretariat received a letter from the Democrat Party which contains the interim dismissal of I Gede Pasek Swardika, a member of the House of Representatives from the mentioned political party. According to the party’s spokesperson, Pasek conduct is violating the party’s integrity pact and code of ethics by defaming the party in the public eye through his statements while addressing the arrest of Anas Urbaningrum by the Corruption Eradication Commission (KPK).
According to Article 213 paragraph (1) of Law No. 27 Year 2009 on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives and Regional House of Representatives, reasons for interim dismissal are death, resignation and termination. In the context of relations between members and their political party, this article specifies several reasons in paragraph (1) such as; letter e, dismissal is done by suggestion of the political party in accordance with legislation. Letter h, dismissal as a member of a political party in accordance with legislation; or letter i, becoming a member of another political party. Two of these excuses contain the sentence “in accordance with legislation”.
According to Law No. 12 Year 2011 on Legislative Drafting, laws are defined as written regulations which contain binding legal norms and are established or set by state agencies or authorized officials through procedures set in the Legislation. The Law on Political Parties delegate dismissal provisions of members to the Article of Association of each political party.
The question at hand is whether the integrity pact, code of ethics, and Article of Association considered violated by Pasek are considered also as legislation? If it is, Democrat Party shouldn’t hesitate revealing detailed reason towards the termination of Pasek by explaining which legislations he has violated so that the public can understand the case, and also to minimize the stigma of the political party’s subjectivity towards the termination of its members; something that has unfortunately not been implemented by Democrat Party. (SMR)
Constitutional Court
Constitutional Court Declares Phrases in Article 335 par. 1 of Indonesian Criminal Code as Unconstitutional
On 16 January 2014, the Constitutional Court made a landmark decision by annulling the phrase contained in article 335 par. 1 of the Indonesian Criminal Code. The article criminalizes unpleasant behavior (perbuatan tidak menyenangkan); notoriously being used in an arbitrary fashion by the police and a favorite among people to incriminate others, especially their opponents. Such a particular situation was what happened to Oie Alimin Sukamto Wijaya, the petitioner of the Judicial Review. He had been subjected to criminalization by powerful businessmen who have access to law enforcement officials due to a minor misunderstanding.
In the decision, the court did not annul the entire article; only the part considered too ambiguous. The Court concluded that the formulation of the article, especially the phrase “…other acts or unpleasant acts…” (“…sesuatu perbuatan lain maupun perlakuan yang tak menyenangkan …”) was too flexible as a legal term.
Consequently, it has given the opportunity for the law enforcement agencies in interpreting the phrase despite it is an arbitrary one. The Constitutional Court decision signifies the breach of the lex certa principle (the law must be certain in its formulation) as an argument in annulling a regulation/specific article. Previously, in the case of Article 311 of the Indonesian Criminal Code judicial review (the criminal defamation article), the court was unwelcoming to the legal argument and described the situation as merely an implementation problem. Therefore, it was considered as a constitutional complaint, which leaves the Court powerless in the ruling of the issue. (GAT)
Human Rights
Political Parties Refuse the Convention on Enforced Disappearance
Four political parties represented in the Indonesian House of Representatives refused the authorization of the International Convention for the Protection of All Persons from Enforced Disappearance. Three of them, the Gerindra, Hanura and Keadilan Sejahtera parties, refused on the grounds of the depth of the material. Meanwhile, Golkar said that they will give their approval should all factions also give approval to authorize the convention. Even though the Government has already signed the convention on 27 December 2010 in New York, it still needs a national mechanism through authorization (often referred to as “ratification”) so that the convention becomes national law. In accordance to Article 10 of Law No. 24 Year 2000 on International Agreements, the material of the convention is included in the category of human rights, which should be passed in the form of laws by the House of Representatives along with the Government.
Several crucial points from the authorization of this convention is the emphasis on no exceptions in justifying enforced disappearance, be it in a state or threat of war, domestic political instability, or any state of emergency. Also towards the act of enforced disappearances, it should be obligated to ensure the right to disclosure of the truth, especially to the victim and their families, which also includes the rights to reparation. What’s most important is that this convention does not recognize statutes of limitations. These crucial points mentioned above support the elimination of impunity of enforced disappearance perpetrators by those who are currently or will be seated in political offices. It should be noted that cases of enforced disappearances are not only limited to the cases of 1997-1998, but also includes the events of 1965, Malari 1974, Tanjung Priok 1984, Talang Sari 1989 and so forth. For the 1997-1998 case, the House of Representatives have already released a recommendation to ratify this convention and establish an Ad Hoc Human Rights Court, yet it was not implemented by the President and the Attorney General.
Gerindra’s stance comes as no surprise if we refer to the chronology of the 1997-1998 case and the founding manifesto of the party. From the chronology, patrons of the political party such as Prabowo Subianto (as both founder and presidential candidate) and other figures such as Muchdi PR (once a member of the Gerindra Party but now moved to the Persatuan Pembangunan Party) and Chaerawan Nusyirman (member of the board of supervisors) have been stated as involved and guilty in the 1997-1998 case by the Officers Council of Honor (one of its members was Susilo Bambang Yudhoyono, Indonesia’s current President). Even though at the time the sanctions given were administrative, criminal sanctions will be given if there is proof of fulfilling the criminal element. The Gerindra Party manifesto stated that the Human Rights Court is an exaggeration (over bodig) and they refuse to have international intervention in issues of human rights. More or less the same can be seen in the attitudes of the Hanura Party, where Wiranto (founder and presidential candidate of the political party) was the Indonesian Military Commander when the 1997-1998 incidents occurred. Attitudes of these political parties are such a disappointment because both reflect an extreme level of ignorance from the political elite on humanity; especially in the case of unwillingness to resolve human rights cases mentioned above through judicial processes. (MSG)