Legal Policy
Newmont Revokes Arbitration Sue Process
After stubbornly maintaining their position to sue the Indonesian government in front of an arbitration panel, Newmont has revoked its decision in front of the International Centre for Settlement Dispute (ICSID). Previously, Newmont had taken unilateral action to bring the Indonesian Government in front of ICSID panel over its decision in banning mineral export. The decision had angered government officials. The government argued that such action is unethical and unwelcome, especially in the middle of a negotiation process. Furthermore, the reaction from civil societies and the Indonesian public at large had been massive. Many have considered that Newmont’s actions are eroding Indonesia’s sovereignty by bringing the issue through an arbitration process instead of settling it on the negotiation table.
Deterred by the government and public reactions, Newmont revoked its decision from ICSID. Despite the positive action, the real issue still lingers in the negotiation process. Implementations of the new Mineral Law, which obliges IUPK holders tobuild smelters, have been problematic. Additionally, the government also expected new fiscal terms, which give greater portions to Indonesian government revenue. Finally, the government also needs to carefully craft stabilization clauses, especially to preserve the Government’s right to exercise their governmental power related to mining activities and others related. (GAT)
Legal Policy
Meliala and Florence Case as Another Entrance To Reform the Criminal Procedural Code
Currently, there are two cases regarding law enforcement that has grabbed the media’s attention, namely the reporting of Adrianus Meliala by the Indonesian National Police and the arrest of Florence Sihombing in Yogyakarta. In the case of Adrianus Meliala, it started out from his statement as a member of the National Police Commission (Komisi Kepolisian Nasional/Kompolnas), stating that the criminal research division is nothing but an ATM machine for the National Police. While the other case is a charge of insult towards the people and city of Yogyakarta by a university student named Florence Sihombing. This act of insulting was done via Florence’s private social media account.
Despite their different characteristics, there is a similarity that can be seen from both cases, namely the large authority held by the police in determining the status of a person as a suspect. This also includes the forced attempt that’s done afterwards, such as arrestment, detention, and so on. In Florence’s case, for example, if the act is premeditated, then such actions are not considered as criminal. Therefore, naming her as a suspect is considered inappropriate, let alone detaining her, since the acts are not of a criminal nature. The case of Adrianus Meliala is also no less severe. The Chief of the Indonesian National Police stated that he would not seek to further this case on if Meliala sends an apology and revokes his statement. What the Chief of Police displays is actually a personification of the law, where he places himself or the police institution as the law itself.
It’s true that institutional reform towards the Indonesian National Police is important. However, the road so far has been an unsuccessful one; as illustrated from Meliala’s case. The National Police Commission, who functions as supervisors, become helpless since the Police reported the commission to the Police themselves. The reform which was supposed to be the focal point is the functional reform, by renewing the criminal procedure law. The basis of the law, which is Law No. 8 Year 1981 on the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana/KUHAP) has left a large space open for subjectivity by law enforcement officials. This condition is worsened by the insufficiency and lack of control mechanism and accountability, therefore making the process not objective.
For example, the procedure for determining a suspect as set forth in the Criminal Procedure Code; one of which (and is usually the main procedure) depends on the subjectivity of the investigator, which is a condition under the concern of the investigator. This is just a small number of the authorities regulated in the Criminal Procedure Codes which tend to be very subjective and have potential to be misused. Therefore, improving the Indonesian National Police could not start effectively without reforming the existing Criminal Procedure Code. This is done in order to re-regulate the authority given to law enforcement officers by introducing a control and accountability mechanism through preliminary examining judges. By placing a judicial institution, in this case the preliminary examining judges, then at least it can be hoped that the criminal justice process can be upheld objectively and in an accountable manner. (MSG)
CSO Initiatives
PSHK’s Participation in the Formation of Public Policies
In efforts of participating in public oversight, Pusat Studi Hukum dan Kebijakan Indonesia (PSHK) has addressed its stance alongside two different coalitions whose members are several civil society organizations. Both coalitions held a press conference on Sunday, 31 August 2014, to address their stance on two different issues; the House’s plan in establishing the 2014-2019 period Standing Orders and their attitude towards the selection of the commissioner of the Corruption Eradication Commission.
PSHK has stated that the House should postpone the enactment of the Standing Orders for the upcoming period. This is important because, currently, Law No 17 Year 2014 on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives and Regional House of Representatives (UU MPR, DPR, DPD, dan DPRD/UU MD3); which is a reference from the establishment of the Standing Orders still being reviewed by the Constitutional Court. In addition, the MD3 Law is considered problematic, thus potential in causing newer problems when it became a reference in the establishment of the House’s Standing Orders.
Meanwhile regarding the KPK commissioner issue, PSHK and the coalition has taken a stance and stated that the selection process must be transparent and involve as much of the public as it can. In addition, considerations of the future commissioner’s track record must be clear, so that the chosen commissioner could possess good integrity and capability. (FN)
CSO Initiatives
Nine Recommendations on Human Rights for a New Indonesia from KontraS
The statement from Andi Widjajanto from Jokowi’s Transition Team on human rights issue was a surprising one. He admitted that the Transition Team does not have an agenda for human rights; the total opposite of what was promised by the Jokowi-JK pair during the campaign period.
The Commission for the Disappeared and Victims of Violence (Komisi untuk Orang Hilang dan Korban Tindak Kekerasan/KontraS) has given nine recommendations to the new and upcoming government regarding the agenda of enforcing human rights in Indonesia. First, to not place anyone involved in acts of human rights violations whose cases have not been settled in the transition team and new government structure. Second, to form a Serious Violation towards Human Rights Settlement Committee. Third, to establish a National Committee on Agrarian Dispute Resolution.Fourth, to ensure that the ministry involved with human rights comprehensively understands human rights itself. Fifth, release the final report of the fact finding team regarding the Munir case. Sixth, to request to the National Human Rights Commission (Komisi Nasional HAM/Komnas HAM) and Chief of Indonesian Police for their cooperation in preparing facts of violations towards the right to freedom of religion, faith, and worship to then be followed up. Seventh, to request to the new Minister for Law and Human Rights to immediately prepare a working plan regarding work and the annulment process of several regulations and local rules which are contrary to the principles of human rights as stated in the 1945 Constitution. Eighth, to immediately form a security and law enforcement coordination team in Papua, so that the unity of security does not stand alone. Ninth, to immediately form a Human Rights Court in Papua. The entirety of these recommendations are important for the new government, keeping in mind that Article 69 paragraph (2) of Law No. 39 Year 1999 has mandated the government to respect, protect, enforce and promote human rights in Indonesia. (MS-ED)
House of Representatives
Bill on Local Elections Should Not Be Passed in House’s Current Period
The House of Representatives plans to pass the Bill on Local Elections at the end of the current parliament’s tenure. Abdul Hakam Naja, a member of the House’s working committee for the Bill on Local Elections, stated that they still have time until 30 September 2014 to pass the bill into a law. According to Hakam Naja, the House and government have agreed on crucial provisions of the bill, including the mechanism of local elections.
Titi Anggraini of the Association for Elections and Democracy (Perkumpulan untuk Pemilu dan Demokrasi/Perludem) believes the bill should not be passed in this period since a number of issues in the bill are still unclear. She argued that, currently, it is more important to evaluate the problems that occurred in the 2014 elections than to ratify the bill. She also outlined several problematic provisions of the bill. They are, among others, provisions related to the mechanisms of the local elections and the dispute settlement.
According to the draft bill published on the official website of the House, Article 2 and 3 stipulated that the governor is elected by the Regional House of Representatives (Dewan Perwakilan Rakyat Daerah/DPRD) every 5 years. If the bill is passed, the direct election system that has been implemented in local elections throughout all regions in Indonesia would no longer be valid. Titi argues that it is a setback to democracy, as people will lose their constitutional right to choose their governor. Another issue that needs to be highlighted is the electoral dispute resolution mechanism under the authority of the Supreme Court (Article 30). Currently, under the amended Local Government Act of 2008, the electoral dispute resolution becomes part of the Constitutional Court’s authorities. If the authority was handed over to the SupremeCourt, the dispute resolution process will be carried out by the High Court in each region. Titi warned that this could open the possibility of illegal political transactions on the local level. (RA)