Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

A Government representative stated that, while her Government welcomed the Committee of Experts' comments on the application of Convention No. 105, some of the issues raised therein were not related to the Convention's implementation.

Since ratifying the Convention in 1999, Indonesia had made consistent progress towards its implementation. The Government had amended its legislation to prohibit the use of any form of forced or compulsory labour, and had enacted Law No. 26 of 1999 to repeal Law No. 11 of 1963 on the Eradication of Subversive or Rebellious Activities. Although rehabilitation programmes for prisoners existed, Presidential Decree No. 32 of 1999 on Requirements and Arrangements for the Implementation of the Rights of Prisoners ensured that these programmes functioned in compliance with the Convention.

Since independence in 1945, Indonesia had respected and upheld human rights, including the freedom of citizens to obtain decent employment, based on the principles of Pancasila, the national philosophy. Article 28(d) of the Constitution additionally provided that "every citizen shall have the right to work and obtain remuneration in employment relations". As a member of the United Nations, Indonesia was also obliged to uphold the principles enshrined in the Universal Declaration of Human Rights; it strengthened and reaffirmed these commitments by enacting Law No. 39 on Human Rights in 1999. Additionally, Law No. 13 of 2004 on Manpower, Law No. 21 of 2000 on Trade Unions, and Law No. 4 of 2004 on Labour Dispute Settlement collectively translated the principles contained in the ILO core Conventions into the national context.

As concerned Law No. 27 of 1999, concerning the amendment to the Criminal Code in relation to crimes against the State's security, she maintained that the said law, which was developed by members of Parliament and adopted through a national consensus, remained valid. With regard to Law No. 9 on freedom of expression in public, the sanctions provided for contraventions of this law were contained in sections 15, 16 and 17 of the same. She underscored that Law No. 9 was adopted in 1998, an era in which human rights came to occupy a central place in Indonesian society; accordingly, Law No. 9 sought to provide fully for the right to freedom of public opinion, but also aimed to balance this right with the need for order, peace and the respect of others. A copy of Law No. 9 of 1998 would be submitted to the Committee.

She informed the Committee that a draft revision of the Criminal Code was being undertaken. The present code was a legacy from colonial times, and the revision would accordingly reflect the new developments in Indonesian society, including respect for fundamental human rights.

She reiterated that Law No. 11 of 1963 was no longer in force, having been repealed by Law No. 26 of 1999; a copy of the latter would also be submitted. With respect to the Committee of Experts' comments on Law No. 13 of 2003 on manpower, in particular sections 139 and 185, she clarified that section 139 contained no penal sanctions, much less imprisonment, for those participating in strikes. Additionally, in 2005, the Government took steps to review Law No. 13 of 2003, but the revision of the said law did not receive wide support from the social partners and was subsequently shelved. Instead, an independent team consisting of professors and researchers from five prominent Indonesian universities was established to review the various regulations on manpower and human resources. As with all questions relating to manpower policy, the revision of Law No. 13 of 2003 would be debated in the Tripartite Body. She concluded by underscoring her Government's commitment to implementing all ratified Conventions, including Convention No. 105.

The Employer members thanked the Government for the information provided. Indonesia, they noted, was making great strides as a young democracy, and it was appropriate to encourage the Government's endeavours to implement labour standards, particularly in view of the considerable geographic, political, ethnic and cultural variety that characterized the nation. They observed that the present case primarily concerned legislative matters with regard to two aspects of the Convention: the prohibition on the use of forced labour as a punishment for expressing views opposed to the established political, social or economic system; and the prohibition on the imposition of compulsory labour for participation in strikes. A significant freedom of speech element also existed.

They welcomed the updated report furnished by the Government on the Convention's application, but noted that according to the Committee of Experts' observation, the report lacked sufficient detail for it to assess fully the extent to which progress was being achieved on the issues it had identified.

Two instances of progress could be discerned, however. The first involved the development of amendments to the Criminal Code. In this respect, they underscored that it did not suffice for the Government to merely state that the reform of the criminal code was ongoing; they requested the Government to indicate more fully what precisely the substance of the reforms were, and, in particular, whether they directly addressed the matters raised in the Committee of Experts' observation.

The second matter in which progress could be noted concerned the two judgements of the Constitutional Court referred to in the Committee of Experts' observation. One judgement, handed down in 2006, found it inappropriate to maintain articles in the Criminal Code that laid down penalties for deliberate insults against the President or Vice-President. The other, handed down in 2007, found sections 154 and 155 of the Criminal Code - which prescribed penalties of imprisonment involving compulsory labour for publicly expressing hatred of the Government - to be unconstitutional. While noting this progress, they nevertheless regretted that the Committee of Experts were forced to retrieve these judgements on the Internet. Noting, moreover, that the Government had not addressed this matter in its intervention, they asked the Government to indicate whether those decisions would be incorporated into the ongoing reform of the Criminal Code.

They recalled that the ILO supervisory bodies had developed a jurisprudence which distinguished between acts of violence against a State, on one hand, and mere expressions of opinion on the other, for purposes of assessing compliance with the Convention. According to the Committee of Experts, the Convention protected only the latter. Similarly, the 2007 Constitutional Court decision held that subversive acts needed to constitute more than mere criticism, but actually generate hostility towards the Government. The analyses of both bodies were convergent, therefore, and it was incumbent upon the Government to indicate whether the Criminal Code would be amended in line with the Constitutional Court's decisions and the Committee of Experts' comments.

They expressed support for further work at the national level to find solutions to amend the Manpower Act, Law No. 13 of 2003, as raised by the Committee of Experts. While noting the Government's indication that the proposal to amend the Manpower Act failed to find adequate support from the social partners, they underscored that the obligation to comply fully with the requirements of the Convention warranted the Government and the social partners giving further consideration to amending the Manpower Act, in line with the Committee of Experts' comments.

The Worker members emphasized that the objective of Convention No. 105 was to eradicate practices according to which work was imposed as a disciplinary measure, as a sanction against expressions of political opinions or protests against the political, social or economic order established, or as a punishment for participating in a strike. Consequently, this Convention targeted two pillars of democracy, namely freedom of expression and freedom of association. The Committee was examining the application of this Convention in Indonesia for the first time because, despite the repeated requests made by the Committee of Experts, the Government had not adapted its legislative framework, thus still allowing trade unionists and political opponents to become victims of forced labour. With its restrictive legislation, the Government aimed to neutralize all attempts at political dissidence and opposition, since activities of that nature could be sanc- tioned by prison sentences including the imposition of forced labour.

That Law No. 11 of 1963 on the Eradication of Subversive or Rebellious Activities was repealed constituted significant progress. The Worker members stated that, from now on, the Government must ensure that the persons who were prejudiced due to this Law were offered an indemnity.

They cited a series of provisions that were contrary to the Convention: the provisions of Law No. 27 of 1999 concerning the amendment of the Criminal Code relating to crimes against the State's security; the provisions of Law No. 9 of 1998 which provide for restrictions on the expression of ideas in public, the violation of which could be sanctioned by prison sentences; sections 154 and 155 of the Criminal Code which sanctioned the public expression of hostility, hatred or contempt towards the Government with prison sentences. These provisions were declared unconstitutional by the Constitutional Court in 2007, yet trade union leader Mr Sarta Bin Sarim, was imprisoned under them. The Worker members declared that the Government must revise the body of these provisions as soon as possible.

Further, they referred to the provisions which permitted the imposition of forced labour in the form of prison sentences which included compulsory work for persons who violated the provisions of Law No. 13 of 2003 which revoke the right to strike. Furthermore, this Law provided for restrictions on the right to strike that were contrary to Convention No. 87 and to the jurisprudence developed by the supervisory bodies on the subjects of minimum and essential services. Furthermore, it imposed penal sanctions that were clearly disproportionate. The Committee of Experts quite rightly referred to the comments formulated on the application of Convention No. 87 - comments that illustrated to what extent the exercise of freedom of association was restrained in the country.

The Worker members referred to another worrying legal provision, namely section 335 of the Criminal Code which provided for sanctions in case of "unpleasant behaviour". This section was used against six workers who wished to participate in May Day celebrations during work hours.

In conclusion, not only were there problems in the legislation, but also serious problems in the application of that legislation, considering the corruption of the police and judiciary. The Worker members declared that even the best laws on the protection of trade union rights were ineffective if the Government did not see to the elimination of the risk of corruption.

The Worker member of Indonesia stated that while he welcomed the decision by the Indonesian Constitutional Court to delete sections 155 and 157 of the Criminal Code, as well as the setting up of a process to draft a new Criminal Code to replace the one that dated from Dutch colonial times, he regretted to inform the Committee that there was another section in the Criminal Code which was often used against trade unionists that had serious consequences for freedom of expression. This was section 335, which stipulated that a person could be sentenced to imprisonment for a maximum of up to one year for being "unpleasant" towards another person.

He gave the example of Mr Sarta Bin Sarim, an enterprise level leader of KUI SBSI at Tambun Kusuma Company Tangerang, West Java. Along with six other workers, he had been imprisoned for six months for expressing opinions about labour rights practices during May Day celebrations in 2007. Section 335, which made "unpleasant behaviour" a criminal offence, was used by the management of the company, which reported him and the six workers to the police. All were handed down six-month sentences.

With respect to essential services, he brought the Committee's attention to the case of airport workers at PT Angkasa Pura, Jakarta. The workers were fired and suspended from work following allegations that they participated in a strike in May 2008 in an enterprise that "served the public interest". The criteria of essential services fell under the Manpower Act No. 13/2003, and as the criteria set out therein did not match the criteria for essential services under Conventions Nos 87 and 98, the management fired Mr Arif Islam, Chair of the Angkasa Pura trade union and suspended seven members of the union for three months. The case was currently in court and the workers could be given a prison sentence of maximum four years.

The Government was called upon to restore the legal status of Mr Sarta Bin Sarim; to ensure the immediate end to violations of labour rights of airport workers and reinstate them in their jobs; to provide mediation to prevent the case being brought to court; to take appropriate measures to amend section 139 of the Manpower Act No. 13/2003 to bring the notion of essential services into compliance with Conventions Nos 87 and 98; and to speed up the process of the development of a new criminal code that did not criminalize trade union activities and was not used against labour activists and other civil rights defenders.

The Government member of the Philippines stated that his Government was proud to support Indonesia, not only as a fellow ASEAN member, but as a country that had also experienced the peaceful transition from military authoritarianism to democracy. Indonesia was now among the staunchest supporters of democratic principles, human rights and the rule of law in the ASEAN region.

The transition from authoritarian rule to democracy did not happen overnight, however. A steady, step-by-step approach was required, as was the encouragement and support of the international community. Indonesia nevertheless had taken bold strides to ensure respect for democratic principles, human rights and the rule of law. In this regard he noted, in particular, the establishment of the Constitutional Court and the national human rights commission. With respect to the latter, Indonesia was one of only four countries in the region to have established an independent body to promote and protect human rights. Indonesia had also prepared a national human rights action plan, now in its second phase, and cooperated with various international bodies in its implementation.

In light of the above, he expressed confidence that Indonesia would be able to address adequately concerns respecting human rights, including labour rights, through the procedures provided for within its national legal framework.

The Government member of Cuba took note of the fact that the Government of Indonesia was engaging in tripartite social dialogue with an aim to implement the Convention. The conclusions of the case should emphasize technical cooperation and open and respectful dialogue. They should also have the approval of the Government.

The Government representative of Indonesia thanked the speakers for their contributions. She reiterated that some of the matters raised in the present discussion did not relate to the application of Convention No. 105 and that the process of democratic and legal reform was ongoing.

In response to the reference to Mr Sarta Bin Sarim, she stated that that matter was being examined by the Committee on Freedom of Association (CFA), in the context of Case No. 2585. The Government had supplied comprehensive information on that issue to the CFA, and she expressed concern that the present discussion of the issues relating to Mr Sarta Bin Sarim would prejudice the CFA's later examination of that matter. She nevertheless indicated that Mr Sarta Bin Sarim had been released in October 2007.

As concerned the PT Angkasa Pura labour dispute, she indicated that a mediation procedure in respect of the dismissed workers had been initiated in March 2008; it was hoped that intensive dialogue would bring about a satisfactory solution to the dispute. She reiterated that Indonesia had been undergoing a process of democratic transformation over the past ten years and remained utterly dedicated to upholding human rights.

The Employer members noted the progress reported by the Government, and as demonstrated by the decisions of the Constitutional Court. They additionally noted the improved political and human rights climate over the past ten years, and the extraordinary progress made in moving from military to democratic rule.

They requested the Government to include the information it had provided to the Committee in its report to the Committee of Experts, as per the latter's request. They welcomed the ongoing reform of the Criminal Code and encouraged the Government to provide more details on the status of its amendment. As concerned the Manpower Act of 2003, while noting that the Government had sought advice from national experts in its review, they encouraged the Government to also avail itself of the technical assistance of the Office to bring that law into conformity with the Convention.

The Worker members requested the Government to take all steps necessary to bring the legislation and national practice into line with the Convention, eliminating restrictions on freedom of expression and the exercise of the right to strike in close collaboration with the social partners. The changes made to the legislation to promote freedom of association should be part of a global approach in which administrative and police practices should be examined and reformed. In addition to the provisions noted by the Committee of Experts, section 335 of the Criminal Code which made "unpleasant behaviour" a crime should also be modified as it was used to restrict freedom of expression and the right to strike. Moreover, the Government should take steps to provide compensation to those persons who had already suffered prejudice due to the application of legal clauses which were contrary to ILO principles. The Government should accept the assistance of the Office and communicate all information necessary so that the Committee of Experts could verify whether the legislation was in conformity with the Convention.

CONCNLUSIONS Conclusions

The Committee took note of the oral information supplied by the Government representative and of the discussion which followed. The Committee noted the information by the Government concerning the labour situation in Indonesia and the various steps undertaken to implement all the international human rights instruments, including the ILO Conventions. The Government expressed its full commitment to respect human rights including all the rights and freedom of citizens in relation to decent work, in conformity with the principles of Pancasila - the national philosophy. The Committee noted the Government's information concerning various measures taken in order to bring legislation into conformity with the Convention and, in particular, regarding the adoption of Law No. 26 of 1999 which repealed Law No. 11 of 1963 on the Abolition of Subversive Activities, as well as the adoption of the new legislative Acts concerning manpower, trade unions and labour dispute settlement. The Government also indicated that a draft revision of the Criminal Code was ongoing and promised to communicate to the ILO all the texts requested by the Committee of Experts. As regards the amendment of the Manpower Act (No. 13 of 2003) which contained provisions concerning the disproportionate sanctions involving compulsory labour for having participated in strikes, the Government informed the Committee of the steps which had been taken to review the Act, including the establishment of an independent team to review various regulations relating to manpower and stated that a revision could be done through a comprehensive approach after the debate in the tripartite body.

The Committee noted that the Government stated that the issue raised during the discussion in the Committee concerning sanctions of imprisonment imposed on trade unionists for having participated in strikes was being discussed by the Committee on Freedom of Association (Case No. 2585). The Government expressed the view that the discussion of this issue by this Committee might prejudge the conclusions of the Committee on Freedom of Association.

The Committee regretted to note that very little information had been supplied by the Government in its reports to the ILO on the issues raised by the Committee of Experts. These issues related, in particular, to the action taken by the Government to eliminate the discrepancies between national legislation and the Convention in the areas singled out by the Committee of Experts, namely, the legal restrictions on the right to strike, as well as on the expression of certain political and ideological views through any media or during public assemblies and demonstrations. The Committee noted the finding of the Committee of Experts that such restrictions fall under the scope of the Convention since they are enforceable with sanctions of imprisonment involving compulsory prison labour. The Committee noted with regret the information provided by Worker representatives that these restrictions recently led to several convictions to sentences of imprisonment, involving compulsory labour, for the peaceful expression of political opinions and for participating in strikes, which had been made, in particular, under section 335 of the Criminal Code ("unpleasant behaviour"), and urged the Government to respond and to report on these issues. The Committee observed that the issues concerning punishment for participating in strikes were closely related to the application in Indonesia of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee regretted to note the Government's statement that Act No. 27/1999 on Revision of the Criminal Code and Act No. 9/1998 on Freedom of Expression in Public, which provided for penal sanctions falling within the scope of the Convention, were adopted through a national consensus and agreement which should be respected by all citizens and therefore should be considered still relevant and valid within the recent context. The Committee noted that compliance with ratified Conventions requires steps beyond reliance on national consensus.

The Committee noted with interest that the Constitutional Court, in two of its recent decisions, found certain provisions of the Criminal Code to be contrary to the Constitution, inasmuch as they diminish freedom of expression and freedom of information, subject to penalties of imprisonment involving compulsory labour. The Constitutional Court accordingly struck down certain provisions of the Criminal Code. Thus, the Committee recommended that the new draft text of the Criminal Code must exclude provisions of this kind.

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Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. In its previous direct request, the Committee noted section 28 of Law No. 31/2002 on political parties, which regulates donations made to and received by political parties and provides for penal sanctions, including sentences of imprisonment involving compulsory labour, for donations made or received beyond certain specified amounts. The Committee requested the Government to take the necessary measures to amend section 28 of Law No. 31/2002 so as to ensure that persons who are in violation of these provisions could not be sentenced to imprisonment involving compulsory labour. In the meantime, it requested the Government to indicate the manner in which effect was being given to section 28 of the Act in practice, and to supply copies of any court decisions issued under this provision.

The Committee notes that, in its latest report, the Government states that Law No. 2 of 2008 on Political Parties has repealed Law No. 31 of 2002, and that section 28 of Law No. 31/2002 has been superseded by section 49 of Law No. 2/2008. The Committee notes, however, that, although section 49 of the new Act no longer includes a provision that corresponds to section 28(3) of Law No. 31/2002, which penalized with criminal sanctions the influencing or forcing of donations to a political party, the new Act, under sections 49 and 50, retains provisions which closely replicate sections 28(1), (2), and (6) of the 2002 Act, and which not only retain criminal penalties involving the imposition of terms of imprisonment, but now multiply the maximum duration of the prison sentences that may be imposed. The Committee hopes that the Government will take measures to further amend or repeal sections 49 and 50 of Law No. 2/2008 so as to bring the legislation into conformity with the Convention. In the meantime, the Committee requests the Government to provide information about the application in practice of sections 49 and 50 of Law No. 2/2008, including copies of any court decisions issued under these provisions.

Legislation relevant to the application of the Convention. The Committee repeats its request that the Government provide a copy of the law respecting labour discipline in merchant shipping.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report, as well as copies of relevant legislative texts attached as appendices. The Committee also notes the discussion of the Committee on the Application of Standards which took place during the 97th Session of the Conference in June 2008, and the conclusions of that Committee, which, inter alia, called upon the Government to supply detailed information to the Committee in its next report on the progress made in bringing its legislation into conformity with the requirements of the Convention. The Committee notes, however, that the Government’s report contains little new information in reply to the Committee’s earlier comments. The Committee therefore hopes that the Government’s next report will contain full particulars on the matters raised by the Committee in its earlier comments and discussed below. The Committee also hopes that the Government will consider the possibility of availing itself of ILO technical assistance, in order to facilitate the process of bringing its law and practice into conformity with the Convention.

Article 1(a) of the Convention. Use of forced labour as a punishment for expressing views opposed to the established political, social or economic system. 1. The Committee notes the text supplied by the Government, indicating that Presidential Decree No. 11 of 1963 on the eradication of subversive or rebellious activities, which contained provisions punishing the distortion, undermining or deviation from the ideology of Pancasila State or the broad policy lines of the State, was repealed by Law No. 26 of 1999. While considering this to be a step forward, the Committee observes, as it has in comments addressed to the Government since 2003, that sentences of imprisonment (which involve compulsory prison labour under articles 14 and 19 of the Criminal Code and articles 57(1) and 59(2) of the Prisons Regulations) may be imposed under sections 107(a), 107(d) and 107(e) of Law No. 27 of 1999 on Revision of the Criminal Code in relation to crimes against state security, 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 Committee has repeatedly requested that the Government take necessary measures to repeal or amend sections 107(a), 107(d) and 107(e) of Law No. 27/1999, in order to bring the legislation into conformity with the Convention.

The Committee notes that once again the Government’s report contains no information about steps being taken or contemplated towards that end. It notes the statement of the Government representative during the discussion of this case by the Conference Committee in June 2008 that Law No. 27/1999 was developed by members of Parliament and adopted through a national consensus and therefore remained valid. While noting this statement, the Committee shares the view of the Conference Committee that compliance with ratified Conventions requires steps beyond reliance on national consensus. The Committee expresses the firm hope that the necessary measures will be taken without delay to bring sections 107(a), 107(d) and 107(e) of Law No. 27/1999 into conformity with the Convention, and that the Government will soon be in a position to report on progress achieved in that regard.

2. In its previous comments the Committee has noted that Law No. 9 of 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 Act provide for the enforcement of those restrictions with penal sanctions by way of reference to “applicable” criminal provisions. The Committee requested the Government to identify those sanctions, supplying copies of the relevant texts, and to provide information on the application of Law No. 9/1998 in practice, including copies of court decisions defining or illustrating its scope, so as to enable the Committee to assess its conformity with the Convention.

The Committee notes that during the discussion of this case by the Conference Committee in June of 2008, the Government representative stated only that sanctions for non-compliance with Law No. 9/1998 were contained in sections 15, 16 and 17 of that Act. The Committee notes that the Government has supplied a copy of the Act, but once again has provided no information that could identify the applicable criminal penalties, as referred to in sections 15, 16 and 17; nor has it provided information on the application of the Act in practice, including copies of court decisions defining or illustrating its scope. The Committee trusts that the Government will provide the information requested above in its next report.

3. The Committee notes the statement of the Government’s representative in the Conference Committee indicating that the draft revision of the Criminal Code was still not completed. In its previous observation, the Committee noted information indicating that the Constitutional Court, in its ruling on Case No. 6/PUU-V/2007, found articles 154 and 155 of the Criminal Code to be contrary to the Constitution of 1945. These articles 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 (article 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 (article 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 articles 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 articles 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, their peaceful support to an independence movement, or for the simple fact of having raised a separatist flag in the eastern provinces of Papua and West Irian Jaya, under the above provisions of the Criminal Code and article 106, under which a maximum sentence of imprisonment of 20 years may be imposed for an attempt to separate part of the territory of the State.

The Committee once again expresses its deep concern and hopes that the Government will take into account the 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 Code as soon as it has been adopted. In the meantime, it requests the Government to indicate the manner in which articles 106, 134, 136bis and 137 of the Penal Code are applied in practice, with copies of any court rulings issued thereunder.

Article 1(d). Recourse to compulsory labour as a punishment for having participated in strikes. In its previous observation 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. The Committee notes the conclusions of the Conference Committee referred to above, in which it urged the Government to take, without delay, all the necessary measures to eliminate sanctions involving compulsory labour that could be imposed for participation in strikes, so as to bring its law and practice into conformity with the Convention.

The Committee once again expresses the 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 on persons participating in strikes. While awaiting this amendment, the Committee once again requests the Government to provide information on the effect given in practice to articles 139 and 185, including copies of court decisions defining or illustrating their scope.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. The Committee notes Law No. 31 of 27 December 2002 on political parties. It notes that under article 28(l) of this Law, any one who gives a donation to a political party in excess of the amount specified in article 18 shall be liable to a sentence of a maximum of two months imprisonment and/or a fine. Under the terms of article 28(2) of the Law, the executive board of a political party that receives a donation in excess of the amount specified in article 18 shall be liable to a maximum of six months imprisonment and/or a fine. By virtue of article 28(3), any person who influences or forces an individual or a corporate body to give a donation to a political party in excess of the amount specified in article 18 shall be liable to a maximum of six months imprisonment and/or a fine. Under article 28(5), the executive board of a political party that commits a violation of article 19(3) shall be liable to a maximum of six months imprisonment and a fine. Article 19(3) bans a political party from: (a) receiving and/giving a donation from or to a foreign party, with a foreign party being understood, under the terms of the explanations provided at the end of the Law, as a foreign national, foreign social organization, or foreign government; (b) receiving a donation from any party without mentioning its identity; (c) receiving a donation from an individual and/or corporate body in excess of the specified amount; or (d) asking for or receiving funds from a state-owned company, cooperative, foundation, non-governmental organization, social organization or a humanitarian organization. Under the terms of article 28(6), the executive board of a political party that uses the political party for adopting, developing and disseminating Communism/Marxism–Leninism shall be sued on the basis of articles 107(c), 107(d) and 107(e) of Law No. 27/1999 amending the Criminal Code with regard to crimes against state security.

The Committee notes that under the terms of the above provisions sentences of imprisonment (involving compulsory prison labour under articles 14 and 19 of the Criminal Code and articles 57(1) and 59(2) of the Prisons Regulations) may be imposed in the circumstances covered by Article 1(a) of the Convention. It therefore requests the Government to take the necessary measures to amend article 28 of Law No. 31 of 27 December 2002 on political parties so as to ensure that persons who are in violation of these provisions cannot be sentenced to imprisonment involving compulsory labour. In the meantime, it requests the Government to indicate the manner in which effect is given to article 28 of the Law in practice, with copies of any court decisions issued under this provision.

Legislation relevant to the application of the Convention. 1. The Committee previously requested the Government to provide a copy of the law respecting labour discipline in merchant shipping. It notes the Government’s indication that this text is not available. The Committee hopes that the Government will be in a position to provide a copy with its next report.

2. The Committee notes Law No. 40/1999 on the press.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 1(a) of the Convention. Use of forced labour as a punishment for expressing views opposed to the established political, social or economic system. 1. In its previous comments, the Committee noted that sentences of imprisonment (which involve compulsory prison labour under articles 14 and 19 of the Criminal Code and articles 57(1) and 59(2) of the Prisons Regulations) may be imposed under articles 107(a), 107(d) and 107(e) of the Law concerning the amendment to the Criminal Code in relation to crime against the state’s security (No. 27/1999), on 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 Committee recalled that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. In this respect, it refers to paragraph 154 of its 2007 General Survey on the eradication of forced labour, in which 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 that sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision.

The Committee notes that once again the Government’s report does not contain any information in reply to its comments on this point. The Committee trusts that the Government will take the necessary measures to bring articles 107(a), 107(d) and 107(e) of Law No. 27/1999 into conformity with the Convention and that it will provide information in its next report on the progress achieved in this respect.

2. The Committee noted previously that Act No. 9/1998 on freedom of expression in public imposes certain restrictions on the expression of ideas in public during public gatherings, demonstrations, parades, etc., such restrictions being enforceable with criminal sanctions (articles 15, 16 and 17 of the Law). It requested the Government to indicate these sanctions, supplying copies of the relevant texts, and to provide information on the application of the above Law in practice, including copies of court decisions defining or illustrating its scope, so as to enable the Committee to assess its conformity with the Convention. The Committee notes that once again the Government’s report does not contain a reply on this point. The Committee trusts that the Government will provide the information requested in its next report.

3. The Committee noted previously the indication in the Government’s report that Presidential Decree No. 11 of 1963 on the eradication of subversive activities, which contained provisions punishing the distortion, undermining or deviation from the ideology of Pancasila State or the broad policy lines of the State, was no longer in force. Noting that the Government’s report does not contain a reply to its previous comments on this matter, the Committee once again requests the Government to indicate in its next report whether this Decree has been formally repealed and, if so, to supply a copy of the repealing text.

4. In its previous direct requests, the Committee requested the Government to provide a copy of the latest updated and consolidated text of the Criminal Code. It notes the Government’s indication that the new Criminal Code is still in the process of finalization. The Committee further notes the information contained on the Internet site of the Constitutional Court (http://www.mahkamahkonstitusi.
go.id), concerning certain sections of the Criminal Code. According to this information, the Constitutional Court, in its ruling on Case No. 6/PUU-V/2007, found articles 154 and 155 of the Criminal Code to be contrary to the Constitution of 1945. These articles 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 (article 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 (article 155). In its ruling, the Constitutional Court found that the qualification of a punishable offence formulated in articles 154 and 155 of the Criminal Code requires the fulfilment of the element of a prohibited act, without being linked to the consequence of such acts. Consequently, the formulation of the two articles may lead to abuse of power since they can be easily interpreted according to what the ruler wishes. According to the Constitutional Court, a citizen intending to criticize or to express opinions concerning the Government, which constitutes a constitutional right guaranteed by the 1945 Constitution, may easily be qualified by the ruler as expressing feelings of hostility, hatred or contempt against the Government due to the uncertainty of the criteria in the formulation of articles 154 and 155. Such uncertainty makes it difficult to distinguish a criticism or expression of opinions from such feelings of hostility, hatred or contempt against the Government, since a prosecutor does not need to prove whether or not a statement or opinion expressed by a person has actually caused or provoked hatred or hostility among the public. The Committee further notes that, in ruling No. 013-022/PUU-IV/2006, the Constitutional Court found that it was inappropriate for Indonesia as a republic based on the sovereignty of the people and which upholds the human rights as set forth in the 1945 Constitution, to maintain articles 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 articles 134, 136bis and 137 of the Criminal Code.

Furthermore, the Committee has noted the cases of several persons convicted recently to heavy sentences of imprisonment, involving compulsory labour, for the peaceful expression of their political opinions, their peaceful support to an independence movement, or for the simple fact of having raised a separatist flag in the eastern provinces of Papua and West Irian Jaya, under the above provisions of the Criminal Code and article 106, under which a maximum sentence of imprisonment of 20 years may be imposed for an attempt to separate part of the territory of the State.

In view of the above and of the incidence that these provisions of the Criminal Code may have on the application of the Convention, the Committee expresses its deep concern and hopes that the Government will take into account the 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 Code as soon as it has been adopted. In the meantime, it requests the Government to indicate the manner in which articles 106, 134, 136bis, 137, 154 and 155 of the Penal Code are applied in practice, with copies of any court rulings issued thereunder.

Article 1(d). Recourse to compulsory labour as a punishment for having participated in strikes. In its 2005 direct request, the Committee noted that under article 139 of the Manpower Act (No. 13 of 2003), read in conjunction with article 185 of the same Act, restrictions on the right to strike in enterprises that serve the public interest are enforceable with sanctions of imprisonment for a term of up to four years (which involves compulsory prison labour). With reference to paragraph 185 of its 2007 General Survey on the eradication of forced labour, the Committee recalls that, to be compatible with the Convention, penalties involving compulsory labour for participation in strikes may only be applied in respect of essential services in the strict sense of the term (that is, only those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee observed previously that certain kinds of services listed in the explanatory notes to article 139 of the Manpower Act (such as the railway service) do not meet these criteria. The Committee also refers to the observation that it is making under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), particularly on the need to remove certain restrictions on the right to strike and to amend provisions establishing disproportionate penal sanctions. The Committee notes the Government’s statement in its last report that there is no plan to amend these provisions. The Committee trusts that the Government will take the appropriate measures to amend these provisions 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. While awaiting this amendment, the Committee once again requests the Government to provide information on the effect given in practice to articles 139 and 185, including copies of court decisions defining or illustrating their scope.

The Committee is also addressing a request directly to the Government on other matters.

[The Government is asked to supply full particulars to the Conference at its 97th Session.]

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee has taken note of the Government’s report and of the legislative texts communicated in annexes. However, it repeats its request for copies of laws governing the press and other media, political parties and labour discipline in merchant shipping. The Committee also hopes that the Government will supply a copy of the latest updated and consolidated text of the Criminal Code, as soon as it is finalized.

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. 1. The Committee previously noted that 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 under sections 107(a), 107(d) and 107(e) of the Law concerning the amendment to the Criminal Code in relation to Crime against State’s Security (No. 27/1999), on 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 organizations, with a view to replacing Pancasila as the State’s foundation.

The Committee recalled that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It referred in this connection to paragraphs 133-140 of its General Survey of 1979 on the abolition 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 expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision.

Since the Government’s report contains no information concerning this issue, the Committee reiterates its hope that the necessary measures will be taken to bring sections 107(a), 107(d) and 107(e) of Law No. 27/1999, referred to above, into conformity with the Convention. It requests the Government to provide, in its next report, information on the measures taken or contemplated in this regard.

2. The Committee previously noted that the Law on the freedom of expression in public (No. 9/1998) imposes certain restrictions on the expression of ideas in public during public gatherings, demonstrations, parades etc., such restrictions being enforceable with criminal sanctions (sections 15, 16 and 17 of the Law). The Committee requested the Government to indicate these sanctions, supplying copies of relevant texts, and to provide information on the application of the above Law in practice, including copies of court decisions defining or illustrating its scope, so as to enable the Committee to assess its conformity with the Convention. In the absence of the Government’s reply, the Committee expresses the hope that the Government will not fail to supply the information requested in its next report.

3. The Committee has noted the Government’s indication in its report that Presidential Decree No. 11 of 1963 on the eradication of subversive activities, which contained provisions punishing, inter alia, the distortion, undermining or deviating from the ideology of Pancasila State or the broad policy lines of the State, is no longer in force. The Committee requests the Government to indicate, in its next report, whether this Decree has been formally repealed and, if so, to supply a copy of the repealing text.

Article 1(d). Sanctions involving compulsory labour as a punishment for participation in strikes. The Committee has noted that, under section 139 of the Manpower Act (No. 13 of 2003), read in conjunction with section 185 of the same Act, restrictions on the right to strike in enterprises that serve the public interest are enforceable with sanctions of imprisonment for a term of up to four years (which involves compulsory prison labour). The Committee recalls, referring to paragraphs 122 and 123 of its General Survey of 1979 on the abolition of forced labour, that, in order to be compatible with the Convention, restrictions on the right to strike enforced with sanctions involving compulsory labour must be limited in scope to the situations of force majeure or to essential services in the strict sense of the term (namely, those whose interruption would endanger the life, personal safety or health of the whole or part of the population). The Committee observes that certain kinds of services listed in the explanatory notes to section 139 of the Manpower Act (such as the railway service) do not meet these criteria. Referring also to its comments made under Convention No. 87, likewise ratified by Indonesia, particularly as regards the need to repeal certain restrictions on the right to strike and to amend provisions imposing disproportionate penal sanctions, the Committee hopes that measures will be taken to amend the above provisions of the Manpower Act so as to limit their scope to essential services in the strict sense of the term, as explained above, and to ensure that no sanctions involving an obligation to work can be imposed for participation in strikes in other services. Pending the amendment, the Committee requests the Government to supply information on the application of sections 139 and 185 in practice, including copies of the relevant court decisions defining or illustrating their scope and indicating the penalties imposed.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee has noted with interest the information provided by the Government in its first report on the application of the Convention. It would be grateful if the Government would supply, with its next report, copies of the following legislation: the latest updated and consolidated text of the Criminal Code; Prisons Regulations and any other provisions governing the work of prisoners; the Civil Servants Act, as amended; laws governing the press and other media; laws governing political parties; any provisions governing labour discipline in merchant shipping and any provisions restricting the right to strike and imposing sanctions for participation in illegal strikes. The Committee also requests the Government to supply additional information on the following points.

1. Article 1(a) of the Convention. The Committee notes that sentences of imprisonment (which involve compulsory prison labour under sections 14, 19 and 57(1) of the Criminal Code and section 59(2) of Prisons Regulations) may be imposed under sections 107(a), 107(d) and 107(e) of the Law concerning the amendment to the Criminal Code in relation to Crime against State Security (No. 27/1999), on 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 organizations, with a view to replace Pancasila as the State’s foundation.

The Committee recalls that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It refers in this connection to paragraphs 133 to 140 of its 1979 General Survey on the abolition 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 expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision. The Committee therefore hopes that the necessary measures will be taken to bring the above provisions into conformity with the Convention, and that the Government will provide information on the measures taken or contemplated in this regard.

2. The Committee notes that the Law on the Freedom of Expression in Public (No. 9/1998) imposes certain restrictions on the expression of ideas in public during public gatherings, demonstrations, parades, etc., such restrictions being enforceable with criminal sanctions (sections 15, 16 and 17 of the Law). The Committee requests the Government to provide information on these sanctions, supplying copies of relevant texts, as well as information on the application of the above Law in practice, including copies of court decisions defining or illustrating its scope.

3. The Committee notes that the provisions of Presidential Decree No. 11 of 1963 on the eradication of subversive activities, punish, inter alia, the following criminal acts of subversion:

-  distortion, undermining or deviating from the ideology of Pancasila State or the broad policy lines of the State;

-  disseminating feelings of hostility or anxiety among the population; and

-  disturbing, retarding or disrupting industry, production, distribution, commerce, cooperatives or transport conducted by the Government or based upon a decision of the Government (section 1).

The Committee requests the Government to indicate, in its next report, whether this Presidential Decree is still in force, and if so, to indicate sanctions applicable for its violation, supplying copies of relevant texts, and to provide information on its application in practice, including copies of court decisions defining or illustrating its scope.