Human Rights Committee

Concluding observations on the second periodic report of Indonesia *

1.The Committee considered the second periodic report of Indonesia at its 4087th and 4088th meetings, held on 11 and 12 March 2024. At its 4108th meeting, held on 26 March 2024, it adopted the present concluding observations.

A.Introduction

2.The Committee is grateful to the State party for having accepted the simplified reporting procedure and for submitting its second periodic report in response to the list of issues prior to reporting prepared under that procedure. It expresses appreciation for the opportunity to renew its constructive dialogue with the State party’s high-level delegation on the measures taken during the reporting period to implement the provisions of the Covenant. The Committee thanks the State party for the responses provided by the delegation during the constructive dialogue.

B.Positive aspects

3.The Committee welcomes the various legislative, policy and institutional measures taken by the State party during the reporting period with a view to strengthening human rights protection under the Covenant, including:

(a)The United Nations Sustainable Development Cooperation Framework2021–2025;

(b)The National Human Rights Action Plan 2021–2025;

(c)Presidential Regulation No. 7/2023 on Amendments to Presidential Regulation No. 65/2020 on the Ministry of Women’s Empowerment and Child Protection;

(d)Law No. 22/2022 on Correctional Facilities;

(e)Law No. 12/2022 on Sexual Offences;

(f)Minister for Education, Culture, Research and Technology Regulation No. 30/2021 on the Prevention and Handling of Sexual Violence in Higher Education;

(g)Coordinating Minister for Political, Legal and Security Affairs Decree No. 99/2020 on the working group on reporting for the main international human rights instruments and mechanisms;

(h)Law No. 16/2019 on Amendments to Law No. 1/1974 on Marriage.

C.Principal matters of concern and recommendations

Domestic implementation of the Covenant

4.The Committee notes the steps taken by the State party to establish a legal and institutional framework that complies with the Covenant. The Committee welcomes decision No. 230/G/TF/2019/PTUN-JKT, Alliance of Independent Journalists v. Ministry of Communication, in which the Jakarta State Administrative Court found the Internet shutdown in Papua to be unlawful, citing the Covenant and the Committee’s general comment No. 34 (2011) on the freedoms of opinion and expression. The Committee is, however, concerned by recent decisions of the Constitutional Court that appear to be contrary to the Covenant, including decision No. 81/PUU-XVIII/2020 on the authority of the Government to restrict access to electronic information deemed unlawful and the decisions in which the Court rejected petitions for judicial review of Omnibus Law No. 11/2020 on Job Creation and of Law No. 19/2016 amending Electronic Information and Transactions Law No. 11/2008. The Committee is also concerned about reports that there were no effective and participatory consultations during the development of these laws. The Committee reiterates its concern regarding local regulations and by-laws that maintain discriminatory provisions that are incompatible with the Covenant, including those prohibiting consensual sexual relations between adults of the same sex. The Committee regrets that the State party does not plan to ratify the first Optional Protocol to the Covenant (art. 2).

5. The State party should:

(a) Adopt measures to ensure that all rights enshrined in the Covenant are given full effect in its domestic legal order at the provincial, regional and national levels, including by reinforcing access to effective remedies;

(b) Ensure that domestic laws, including those based on Sharia law, are interpreted and applied in conformity with the State party ’ s obligations under the Covenant;

(c) Conduct awareness-raising on the Covenant among judges, lawyers and prosecutors, particularly in regions that adopt local regulations and by-laws that are based on customary or religious law;

(d) Guarantee that meaningful, effective and participatory consultations are conducted with all relevant stakeholders, including the national human rights institution ( Komnas HAM), the national commission on violence against women ( Komnas Perempuan) and civil society organizations during all phases of developing domestic legislation;

(e) Consider acceding to the first Optional Protocol to the Covenant.

National human rights institution

6.The Committee welcomes the fact that Komnas HAM received A status reaccreditation by the Global Alliance of National Human Rights Institutions in 2022 and is mandated to investigate complaints of gross human rights violations under article 18 of Law No. 26/2000 on Human Rights Courts. It notes the information provided by the State party that, between 2018 and 2022, the budget allocation to Komnas HAM increased on average by 2.5 per cent each year. The Committee regrets the lack of information on the steps taken to implement the recommendation of the Global Alliance of National Human Rights Institutions to ensure a consistent and permanent process for the selection and dismissal of members of Komnas HAM and ensure pluralism in its composition, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). The Committee also notes that similar concerns exist regarding Komnas Perempuan (art. 2).

7. The Committee recommends that the State party ensure that Komnas HAM and Komnas Perempuan are allocated sufficient financial, technical and human resources to effectively and independently discharge their respective mandates, that a consistent, transparent and permanent process is in place for the selection and dismissal of their members, and that there is pluralism in their composition, in full compliance with the Paris Principles.

Corruption

8.The Committee is concerned that corruption remains pervasive and regrets the lack of information on the implementation of specific measures to prevent, combat and end corruption. The Committee regrets the recent adoption of laws and policies that undermine the independence and effectiveness of the Corruption Eradication Commission, including Law No. 19/2019, which amended the Law on the Corruption Eradication Commission, recognized the formerly independent agency as an executive agency and established a supervisory board appointed by the President. The Committee is concerned that article 11 of Law No. 19/2019 excludes the investigation and prosecution of cases of public interest and notes the limited number of investigations of, and prosecutions in, cases concerning extractive industries, business entities and law enforcement. The Committee is also concerned about the dismissal, in 2021, of 57 staff members of the Commission, including investigators and commissioners, which has further hindered the Commission’s ability to address corruption (arts. 2 and 25).

9. The State party should:

(a) Adopt specific measures to prevent, combat and end corruption, including by promptly, independently and impartially investigating and prosecuting all allegations of corruption or reprisals, applying, if a person is convicted, appropriate penalties commensurate with the seriousness of the offence, ensuring that victims receive full reparation and ensuring access to public information;

(b) Ensure the effectiveness of those measures by allocating sufficient financial, human and technical resources to the Corruption Eradication Commission so that it can fulfil its mandate;

(c) Ensure the independence, transparency, effectiveness and accountability of the Corruption Eradication Commission, including by improving the pluralism of its members and their independence;

(d) Conduct training and awareness-raising campaigns to inform public officials, politicians, the business community and the public about the economic and social costs of corruption and about the mechanisms available to address it.

Impunity and accountability for past human rights violations

10.The Committee is deeply concerned by the pattern of extrajudicial executions, enforced disappearances and other gross human rights violations involving members of the security forces and law enforcement officers, and the failure to investigate these violations or provide reparations for victims. The Committee welcomes Supreme Court Decision No. 291 K/MIL/2023, which upheld the conviction of six law enforcement officers for the premeditated murder and mutilation of four Papuan people in Timika. The Committee notes that, in addition to the convictions, in 2005 and 2007, of three perpetrators involved in the murder of human rights defender Munir Said Thalib, Komnas HAM is still conducting further investigations into the murder. The Committee is concerned by multiple reports of extrajudicial killings and enforced disappearances of Indigenous Peoples in Papua, which have not been investigated despite the State party’s commitment to do so. The Committee deeply regrets that, following the acquittal of Isak Sattu in 2022, there is still a lack of information on the charges brought against other military officers who participated in or abetted the reported extrajudicial killings of four Papuan children in Paniai in 2014; on the outcomes of investigations into the enforced disappearances of pro-democracy student protesters in 1997 and 1998; and on the locations of the mass graves of the estimated 500,000 victims of the “anti-communist” massacres in 1965 and 1966. The Committee is concerned that the report presented in December 2022 on the 12 cases brought before the Team for the Non-Judicial Resolution of Past Serious Human Rights Violations is not publicly available. The Committee is particularly concerned that only 4 of the 16 gross violations of human rights investigated by Komnas HAM have been brought before the courts. The Committee notes with regret that 2,487 victims of violence during the referendum for the independence of Timor-Leste in 1999 and 5,195 victims identified by the Aceh Truth and Reconciliation Commission have yet to receive effective remedies (arts. 2, 6, 7 and 14).

11. The State party should, as a matter of urgency, strengthen its efforts to end impunity and ensure accountability for past human rights violations, including by:

(a) Guaranteeing the independence and impartiality of both judicial and non ‑ judicial accountability mechanisms, ensuring plurality in their composition, clear regulations on appointment and dismissal, and sufficient technical, financial and human resources for the mandate to be promptly fulfilled without delays, and expediting the adoption of the bill on truth and reconciliation;

(b) Promptly investigating all human rights violations, including arbitrary detention, enforced disappearances, torture and ill-treatment, and extrajudicial killings, including those reported to Komnas HAM, and ensuring that families receive information on investigations into the deaths of their relatives;

(c) Affording full reparations to all victims of human rights violations and their families, including for the 7,682 victims identified by the Aceh Truth and Reconciliation Commission and in relation to the independence referendum of Timor ‑ Leste;

(d) Ensuring access to public information regarding such cases, including the full reports of the Team for the Non-Judicial Resolution of Past Serious Human Rights Violations and the investigation findings of Komnas HAM and of the independent fact ‑ finding team set up in 2005 by the President to investigate the death of Munir Said Thalib ;

(e) Guaranteeing that mourning and commemorative activities for victims are conducted without restrictions or threats, thoroughly and promptly investigating all reports of harassment or intimidation, prosecuting the perpetrators and, if they are convicted, imposing penalties commensurate with the gravity of the offence;

(f) Ensuring that the findings of Komnas HAM are followed up by law enforcement agencies, that perpetrators are prosecuted and, if convicted, imposed penalties commensurate with the gravity of the offence and that guarantees of non ‑ repetition are provided.

Counter-terrorism measures

12.While acknowledging the measures taken by the State party to combat terrorism, the Committee is concerned by the lack of judicial oversight of warrants and other law enforcement proceedings, which, combined with the vague wording of the definition of terrorism (art. 1 (2) and (4)) and broad provisions on wiretapping and surveillance (art. 31) in the revised Law No. 5/2018 on Amendment to Law No. 15/2003 on Stipulation of Government Regulation (Amendment to Terrorism Law), raises concerns that individuals may be arbitrarily deprived of their liberty and subjected to torture or ill-treatment. The Committee is also concerned that counter-terrorism laws and policies may be arbitrarily applied to restrict fundamental freedoms, particularly in the context of peaceful protests. The Committee regrets the extension of detention periods, with article 25 of the revised Law No. 5/2018 permitting pretrial detention of suspected terrorists for 240 days, which may be extended to 290 days subject to the approval of the chief magistrate of the district court. The Committee is also concerned about article 43, which tasks the Indonesian National Army with “combating acts of terrorism” and raises concerns about excessive use of force and the lack of adequate guarantees against racial profiling and racially motivated excessive use of force (arts. 2, 4, 7, 9 and 14).

13. The State party should:

(a) Ensure that persons suspected of, or charged with, terrorist acts or related terrorist offences are provided, in law and in practice, with all appropriate legal safeguards, including the rights to be informed of the charges against them, to be brought before a judge within 48 hours and to have access to legal counsel, in accordance with article 9 of the Covenant and the Committee ’ s general comment No. 35 (2014) on liberty and security of person;

(b) Ensure that any restrictions, such as wiretapping, to the right to privacy of individuals suspected of, or charged with, terrorist acts are subject to judicial review and effective, regular and independent oversight, while guaranteeing access to effective remedies in cases of abuse of authority;

(c) Guarantee that counter-terrorism laws are not applied to restrict the exercise of the right of peaceful assembly, including of lawyers, journalists, political opponents and human rights defenders;

(d) Take effective measures to combat racial profiling and racially motivated excessive use of force, including by adopting clear prohibitions of such practices and guidelines for law enforcement officials and security forces, promoting ethnic diversity within the relevant agencies and ensuring that victims of racial profiling have access to effective remedies, in line with the Covenant.

Discrimination

14.The Committee is concerned about the absence of a comprehensive anti‑discrimination law that covers all grounds of discrimination under the Covenant, and that discrimination based on race, ethnicity, religion, disability, sexual orientation, gender identity and HIV status remains pervasive. It regrets the lack of information on laws or policies to prohibit discrimination and regarding the nature, status and outcomes of complaints of discrimination received by Komnas HAM and the courts (arts. 2, 19, 20 and 26).

15. The Committee recommends that the State party adopt comprehensive anti ‑ discrimination legislation through effective, meaningful and participatory consultations with stakeholders, strengthen the monitoring and reporting of complaints of discrimination based on grounds including race, ethnicity, age, nationality, religion, disability, sexual orientation, gender identity and HIV status, and guarantee the investigation of complaints, prosecution and trial, the imposition of appropriate penalties and effective remedies for victims.

Gender equality

16.While noting the progress in the number of women and girls enrolled in primary and secondary education, the Committee is concerned about the lack of representation and participation of women in senior and decision-making positions in political and public life and in the private sector. The Committee remains concerned by local laws and by-laws that continue to discriminate, particularly on the grounds of sex, sexual orientation, gender identity and religion, including those that impose mandatory jilbab regulations (arts. 3, 25 and 26).

17. The State party should:

(a) Strengthen efforts to increase the representation of women in all spheres of society, including at all governmental levels, particularly in decision ‑making positions, the judiciary and the private sector;

(b) Amend or repeal discriminatory legal provisions against women and girls, including local laws and by-laws, and take more robust measures to guarantee de jure and de facto equality between women and men;

(c) Take immediate steps, including through training programmes for judges, prosecutors and lawyers, to eliminate gender biases and stereotyping and ensure that courts applying discriminatory local laws and by-laws harmonize their norms, procedures and practices with article 3 of the Covenant.

Violence against women

18.The Committee notes the measures taken by the State party to prevent and combat violence against women, including the establishment of an online platform for monitoring and reporting related statistical data. The Committee remains concerned about systematic reports of violence against women, including domestic violence, sexual violence and femicide. The Committee is deeply concerned by reports of arbitrary detention and forced sterilization of women and girls with psychosocial disabilities (arts. 2, 3, 6, 7 and 26).

19. The State party should:

(a) Adopt a comprehensive approach to prevent and address violence, including domestic violence, against women in all its forms and manifestations, including by raising awareness of the harmful effects of such violence, and to eradicate stereotypes regarding the role of women, both at home and in society;

(b) Encourage the reporting of cases of violence against women, including by ensuring that all women have access to multiple forms of reporting and to information about their rights and about access to remedies;

(c) Investigate all allegations of violence against women, prosecute and, if they are found guilty, punish perpetrators with penalties commensurate with the gravity of the offence, and afford victims and their families effective remedies;

(d) Provide effective training for public officials, including judges, lawyers, prosecutors and law enforcement officers, on handling cases of violence against women, including Muslim women, ethnic minority women, lesbian and bisexual women, transgender or non-binary people, and women with psychosocial disabilities.

Voluntary termination of pregnancy and sexual and reproductive health

20.The Committee is deeply concerned that the amended Criminal Code provides for prison sentences for “any person who gives medicine or asks a woman to use medicine” for an abortion (art. 251), “any person who performs an abortion” (art. 464) and any woman who has an abortion, with the exception of medical emergencies and victims of rape or other sexual violence crimes that have reached 14 weeks’ gestation (art. 463), without taking into account the impact of these restrictions on the rights of women and girls seeking abortions, including on their right to life. Furthermore, the Committee is concerned about the obstacles faced by women in obtaining access to safe abortion, even in cases in which it is legally permitted (arts. 6, 7 and 8).

21. In the light of the Committee ’ s general comment No. 36 (2018) on the right to life, the State party should take all the measures necessary to ensure that abortion is not regulated in a manner that runs contrary to its duty to ensure that women and girls do not have to undergo unsafe abortions. In particular, the State party should:

(a) Put an end to the criminalization of abortion, including by repealing laws under which criminal sanctions may be imposed on women and girls who undergo abortion, on health service providers who assist women and girls in undergoing abortion and on persons who assist women and girls in procuring an abortion, and adopt a legislative framework in line with the abortion care guidelines issued by the World Health Organization (WHO) in 2022;

(b) Strengthen public awareness-raising on sexual and reproductive health and the prevention of unwanted pregnancies, addressed to women, men and adolescents, while combating the stigmatization of women who have recourse to abortion and ensuring access to appropriate and affordable contraception;

(c) Provide legal, effective, safe, unimpeded and confidential access to abortion for women and girls throughout its territory, including prenatal and post ‑ abortion health care, without discrimination and free from violence and coercion, and refrain from introducing new barriers to sexual and reproductive health services. 

Climate change and environmental degradation and the right to life

22.The Committee notes the extension, in 2019, of the moratorium on forest concessions and the adoption of Decree No. 8/2019 on the Determination of the Forest Reference Emission Level for Subnational (Province), Regulation No. 22/2021 on Environmental Protection, Organization and Management, Regulation No. 21/2022 on Procedures for Carbon Pricing Implementation and the State party’s enhanced nationally determined contribution. While noting the availability of the PRISMA (Business and Human Rights Risk Assessment) application, which assists business entities in analysing the risks posed to human rights by business activities, the Committee regrets the lack of measures to prevent or prohibit violations of rights related to development projects and business entities. The Committee regrets the adoption of Omnibus Law No. 11/2020 on Job Creation, which simplifies environmental assessment requirements, integrates environmental permits into business licences and removes the concept of strict liability. The Committee also regrets the lack of information on the status of the complaint submitted to the Komnas HAM in 2022 by a group of young Indonesians alleging that the Government had failed to fulfil its climate change mitigation and adaptation responsibilities, and the lack of information on the measures adopted to protect people residing in Papua, Moluccas and Central Sulawesi from climate change-related disasters (art. 6).

23. In the light of general comment No. 36 (2018), the State party should:

(a) Strengthen its efforts to develop mechanisms and systems to ensure the sustainable use of land and natural resources, develop and implement environmental standards to reduce air and water pollution and the destruction of forests and peatlands, provide appropriate access to information on environmental hazards and adopt a precautionary approach to protect persons in the territory of the State party, particularly the most vulnerable, including remote communities and Indigenous Peoples, from the negative impacts of climate change and natural disasters;

(b) Strengthen the mechanisms established to monitor and report on potential violations of rights, in particular the right to life, the right to freely dispose of one ’ s land, natural wealth and resources, and cultural rights, including in relation to ancestral land and burial practices;

(c) Ensure independent human rights and environmental impact assessments in the context of natural resource exploitation projects and provide, in a transparent and comprehensive manner, information on their impact on the enjoyment of human rights;

(d) Ensure that all projects that affect sustainable development and resilience to climate change are developed with the meaningful and informed participation of the public, in particular Indigenous Peoples and affected communities.

Death penalty

24.The Committee notes the de facto moratorium on the death penalty. The Committee also notes that article 98 of the amended Criminal Code explicitly states that the “death penalty is imposed alternatively as a last resort”, while article 100 provides for commutation by Presidential Decree after consideration by the Supreme Court. The Committee is, however, seriously concerned that article 610 of the amended Criminal Code applies the death penalty to the offence of unlawfully producing, importing, exporting or distributing narcotics, which does not meet the threshold of “most serious crimes” involving intentional killing, within the meaning of article 6 (2) of the Covenant and general comment No. 36 (2018). The Committee is also particularly concerned that article 100 states that where a person “does not show commendable attitude and behaviour and there is no hope for reparation, the death penalty can be executed by order of the Attorney General”, while article 99 states that in cases concerning “a pregnant woman, a woman who is breastfeeding her baby, or a mentally ill person”, the penalty is to be imposed after “the woman gives birth, the woman is no longer breastfeeding her baby, or the mentally ill person recovers”. The Committee also has grave concerns about the disproportionately large number of foreign nationals who are sentenced to death (art. 6).

25. The Committee encourages the State party to give due consideration to abolishing the death penalty and acceding to the second Optional Protocol to the Covenant, while maintaining its moratorium on the death penalty and resentencing those convicted of capital crimes. The Committee recommends that the State party revise its legislation, if the death penalty is maintained, to ensure strict compliance with article 6 (2) of the Covenant and to restrict the crimes for which the death penalty may be imposed to the most serious crimes, understood to be crimes involving intentional killing according to general comment No. 36 (2018). The Committee also recommends that the State party conduct public awareness-raising campaigns on the death penalty and the right to life. The Committee recommends that the State party strengthen effective access to justice, including the consular assistance provided to foreign nationals sentenced to death.

Torture and other forms of cruel, inhuman or degrading treatment

26.The Committee notes the training provided to judges, prosecutors and law enforcement personnel on the prohibition of torture and other forms of cruel, inhuman or degrading treatment and on the Principles on Effective Interviewing for Investigations and Information-Gathering (the Méndez Principles). The Committee is, however, concerned about systematic reports about the use of torture and other forms of cruel, inhuman or degrading treatment or ill-treatment in places of detention, in particular on Indigenous Papuans. The Committee regrets the lack of information provided on the number of reports received, cases registered, investigations conducted, prosecutions undertaken, and law enforcement personnel, security force members and senior officials sentenced. The Committee also regrets the lack of information on the number of cases of flogging, administered under the Aceh Special Autonomy Law and its interpretation of sharia law (arts. 7 and 10).

27. The State party should take immediate measures to end torture and other forms of cruel, inhuman or degrading treatment or ill-treatment, including by:

(a) Reinforcing the regular human rights training of all judges, prosecutors, lawyers, security officers, and law enforcement and security forces personnel, including on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and the Minnesota Protocol on the Investigation of Potentially Unlawful Death;

(b) Guaranteeing that confessions obtained through torture or ill-treatment are not accepted by courts under any circumstances;

(c) Conducting prompt, thorough, impartial and effective investigations of all allegations of torture and other cruel, inhuman or degrading treatment, prosecuting perpetrators and punishing them, if convicted, with penalties commensurate with the gravity of the crime;

(d) Ensuring that victims and their families are afforded full reparations;

(e) Explicitly prohibiting flogging and other forms of torture or ill-treatment that have been interpreted as permissible under sharia law.

Persons deprived of their liberty and conditions of detention

28.The Committee welcomes the adoption of Law No. 22/2022 on Correctional Facilities. While welcoming the adoption of local regulations and by-laws prohibiting shackling, the Committee regrets the lack of information provided on the penalties or effective remedies afforded to victims and their families in the 4,441 cases of shackling identified by the Ministry of Health. The Committee remains concerned about overcrowding and inadequate conditions in prisons, refugee camps and institutions for persons with psychosocial disabilities. The Committee is also concerned by the lack of judicial oversight of the detention of persons with psychosocial disabilities, in particular regarding the separation of children from their mothers and forced sterilization (arts. 7 and 10).

29. The Committee recommends that the State party increase its efforts to ensure that conditions of detention fully comply with relevant international human rights standards. In particular, the State party should:

(a) Conduct public awareness-raising on the Covenant and Law No. 22/2022 on Correctional Facilities;

(b) Harmonize laws and policies, including local regulations and by-laws, on the detention of persons with psychosocial disabilities with international human rights standards, including with reference to the guidance on mental health, human rights and legislation issued b y WHO and the Office of the United Nations High Commissioner for Human Rights in 2023;

(c) Harmonize laws and policies on the detention of prisoners with international human rights standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules);

(d) Significantly reduce overcrowding in places of detention, including through the wider application of non-custodial measures, as provided for in the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), as alternatives to imprisonment;

(e) Improve conditions in places of detention and ensure adequate access to food, drinking water and health care;

(f) Explicitly mandate Komnas HAM to conduct regular, unannounced visits to places of detention;

(g) Guarantee access to justice, including by ensuring fundamental procedural safeguards and fair trial standards, in accordance with the Basic Principles on the Role of Lawyers, and ensure that all persons deprived of their liberty have access to an independent and effective complaints mechanism.

Independence of the judiciary

30.The Committee notes that the Ministry of Law and Human Rights established a mechanism to receive individual complaints and has, since 2022, received 2,822 such complaints. The Committee, however, regrets the lack of information on the number of complaints that have been investigated and brought before the courts. While noting that article 24B (1) of the Indonesian Constitution establishes the Judicial Commission, the Committee regrets the lack of information on specific measures taken to safeguard the independence and impartiality of the judiciary and the autonomy of the Public Prosecution Service. The Committee is also concerned that members of the Judicial Commission are appointed and dismissed by the President, subject to the approval of the House of Representatives, in accordance with article 24B (3) of the Constitution, which may allow for undue influence. The Committee is also concerned about reports of pressure on, and retaliation towards, judges through removal procedures, such as the removal of the Deputy Chief Justice of the Constitutional Court in September 2022 (arts. 2 and 14).

31. The State party should ensure the independence and impartiality of the judiciary, including by taking steps to strengthen the Judicial Commission, responsible for safeguarding the independence and impartiality of the judiciary, while guaranteeing that such mechanisms are able to discharge their functions independently and impartially, without undue influence. The State party should also ensure that the procedures for the selection, appointment, promotion, suspension, transfer, removal and disciplining of judges and prosecutors comply with the Covenant and relevant international standards, including the Basic Principles on the Independence of the Judiciary and the Guidelines on the Role of Prosecutors.

Freedom of expression

32.The Committee regrets the limited information provided on laws or policies to protect individuals exercising their freedom of speech, including human rights defenders, community leaders, journalists and civil society representatives. The Committee is concerned about article 240 of the amended Criminal Code and article 27A on criminal defamation of the 2 January 2024 amendment to the Electronic Information and Transactions Law No. 11/2008, which may be used to criminalize insulting the President or public officials. The Committee is also concerned that articles 27 (1) on “contents that violate propriety” and 28 (3) on “false statements that cause public unrest” of the amended Electronic Information and Transactions Law are overbroad and vague, allowing for judicial intimidation and harassment. The Committee is concerned about reports of Internet shutdowns during protests and regular shutdowns in relation to security operations in Papua. The Committee notes with concern that since the adoption of Ministerial Regulation No. 5/2020 on Private Electronic System Operators, nearly 300,000 web pages have been blocked, approximately 2,000 of which were identified as “negative” (arts. 19 and 20).

33. The State party should take the measures necessary to ensure the full enjoyment of the right to freedom of opinion and expression, in the light of general comment No. 34 (2011). In particular, the State party should:

(a) Adopt measures to effectively protect individuals exercising their freedom of expression, including the adoption of legislation to protect human rights defenders, and to guarantee their rights, including their right to effective remedies;

(b) Conduct prompt, thorough and impartial investigations into all reports of harassment, intimidation and reprisals against human rights defenders, and ensure that perpetrators are brought to justice and, if convicted, punished with penalties commensurate with the seriousness of the offence, and that human rights defenders are able to carry out their work in a safe and enabling environment;

(c) Revise the legal framework, including the Criminal Code and the amended Electronic Information and Transactions Law, in order to decriminalize defamation of the President and public officials, defining articles 27 (1) and 28 (3) of the Electronic Information and Transactions Law in accordance with the principles of legal certainty, necessity and proportionality, and ensure that all restrictions on Internet access are non-discriminatory, necessary and proportionate, as required by article 19 (3) of the Covenant;

(d) Review Ministerial Regulation No. 5/2020 on Private Electronic System Operators with a view to guaranteeing transparency, procedural safeguards, access to evidence and the right to appeal to an independent body, in line with the Covenant; 

(e) Conduct training for judges, prosecutors, lawyers and law enforcement personnel on the right to freedom of expression, including online expression.

Freedom of religion or belief

34.The Committee notes with concern that Presidential Decree No. 1/PNPS/1965 on the Prevention of Blasphemy and Abuse of Religions and article 156 (a) of the amended Criminal Code criminalize public dissemination or performance of “deviant” interpretations of religions “adhered to in Indonesia” and the performance of “religious activities that resemble the activities of the religion in question” and empower the President to dissolve or ban related organizations. While noting the position of the State party that these laws and policies are necessary to prevent religiously motivated hate speech and incitement to religious hatred, the Committee is concerned that these provisions have been used to restrict the practice of minority religions and beliefs (arts. 2, 18 and 26).

35. The Committee recommends that the State party ensure respect for the right to freedom of religion or belief, including ensuring that legislation and practices conform to article 18 of the Covenant, taking into account the Committee ’ s general comment No. 22 (1993) on the right to freedom of thought, conscience and religion and general comment No. 34 (2011). The State party should:

(a) Guarantee the right of everyone to have or to adopt a religion or belief of their choice and to change their religion;

(b) Ensure the freedom, either individually or in community with others and in public or private, to manifest one ’ s religion or belief, including by withdrawing any legal provisions or regulations that are not necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, in accordance with article 18 (3) of the Covenant;

(c) Revise Presidential Decree No. 1/PNPS/1965 and article 156 (a) of the amended Criminal Code, so as to guarantee in law that any restriction of the right to freedom of religion or belief is in accordance with article 18 (3) of the Covenant;

(d) Adopt legislation that recognizes religiously motivated hate speech and incitement to hatred as criminal offences.

Rights of peaceful assembly and association

36.The Committee is concerned that the State party’s laws subject the rights of peaceful assembly and association to excessive and disproportionate restrictions, including those pertaining to national security. The Committee is also concerned that the laws that impose registration, administration and other procedures on peaceful protesters, non-governmental organizations, academic institutions and trade unions are inconsistent with the principles of legal certainty, necessity and proportionality. The Committee notes with regret the significant number of reports of harassment, intimidation, surveillance and excessive use of force faced by peaceful protesters, members of civil society, students, academic faculty, and trade union leaders and members (arts. 21 and 22).

37. In accordance with article 21 of the Covenant and the Committee ’ s general comment No. 37 (2020) on the right of peaceful assembly, the State party should:

(a) Review relevant laws to clarify and narrow restrictions on peaceful protesters, non-governmental organizations, academic institutions and trade unions, including with respect to notification, registration and administration, in accordance with the principles of legal certainty, necessity and proportionality;

(b) Ensure that any restrictions on the rights of peaceful assembly and association, including through administrative or criminal sanctions against individuals exercising these rights, comply with the strict requirements set forth in articles 21 and 22 of the Covenant;

(c) Ensure that all allegations of harassment, intimidation, surveillance and excessive use of force are investigated promptly, thoroughly and impartially, that those found responsible are prosecuted and, if found guilty, punished and that victims are afforded effective remedies;

(d) Ensure that all law enforcement officials regularly receive training on the use of force based on the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement.

Participation in public affairs

38.The Committee notes with concern the allegations of corruption and undue influence exerted on the 2024 general elections, including reports that the President campaigned in favour of his son’s bid for office. It also notes with concern Decision No. 90/PUU-XXI/2023 of the Constitutional Court, which reduced the minimum age requirements for presidential and vice-presidential candidates to the advantage of the candidacy of the President’s son. Furthermore, the Committee is concerned: that allegations of corruption or fraud will be directed to the Constitutional Court with no guarantee of independent investigation; about the exclusionary application of registration requirements, under which the application of the United Papuan Party to register as a political party was rejected by the General Elections Commission; about the repeal, in 2021, of article 28 (1) of the Papuan Special Autonomy Law on the establishment of local political parties; and about the alleged harassment, intimidation, arbitrary arrest and detention of opposition candidates and supporters. The Committee also notes with concern that persons with disabilities continue to face accessibility issues that prevent them from voting, such as a lack of Braille on ballot papers and physically inaccessible polling stations (arts. 2, 25 and 26).

39. In accordance with article 25 of the Covenant and the Committee ’ s general comment No. 25 (1996) on participation in public affairs and the right to vote, the State party should ensure the full enjoyment of the right to participate in public affairs, including by guaranteeing free and transparent elections that provide a level playing field for opposition parties and candidates. In particular, it should:

(a) Give full effect to the constitutional right of every citizen to participate in public affairs without discrimination, fostering a culture of genuine political pluralism to this end, and ensure that all political parties can conduct free, equal and transparent electoral campaigns;

(b) Adopt all measures necessary to ensure robust monitoring of and reporting on eligibility and registration procedures, including through independent oversight mechanisms and effective enforcement;

(c) Ensure the full independence of the General Elections Commission, including by establishing a dedicated mechanism and clear regulations for lodging complaints against any decision, act or omission of the Commission and for filing appeals;

(d) Revise any legal provisions that restrict the right of citizens to register as a candidate or voter or to establish a registered political party, as well as the Papuan Special Autonomy Law, so as to guarantee the right to public participation, in line with the Covenant;

(e) Take all measures necessary to ensure that all persons entitled to vote are able to exercise that right, including by ensuring that polling stations are accessible, particularly for persons with disabilities;

(f) Ensure that political opposition candidates and supporters, journalists and human rights defenders can conduct their election-related activities free from undue interference and threats to their liberty and security;

(g) Ensure that all future elections are free and fair, within the meaning of article 25 of the Covenant, are conducted with full respect for the right to vote and to be elected and are held in the presence of international observers, and that high-ranking officials are prevented from unduly influencing electoral processes.

Refugees and asylum-seekers

40.The Committee notes the ongoing review of Presidential Regulation No. 125/2016 on the Handling of Refugees and encourages the State party to reconsider its position regarding the ratification of the Convention relating to the Status of Refugees and the Protocol thereto. The Committee regrets the lack of information on existing measures, in law and in practice, to ensure that refugees and asylum-seekers are provided with adequate services to meet their basic needs. The Committee is concerned about the recent reports of xenophobic and racist hate speech towards Rohingya refugees and asylum-seekers residing in the camps in Aceh Province (arts. 7, 9, 12, 13 and 24).

41. The State party should:

(a) Strengthen understanding among decision makers of the Convention relating to the Status of Refugees and the Protocol thereto;

(b) Conduct meaningful and participatory consultations with civil society, religious leaders and local communities in order to adopt measures, in law and in practice, to ensure that refugees and asylum-seekers are provided with access to adequate food, water, housing and other services, including health and sanitation services, to meet their basic needs, as well as access to justice and a complaints reporting mechanism;

(c) Implement awareness-raising campaigns to combat all forms of racial discrimination, including xenophobia, and promote a culture of respect towards asylum-seekers and refugees.

Rights of the child

42.The Committee regrets the lack of information, including statistical data, on specific measures adopted to prohibit all forms of corporal punishment of children in all contexts, including in schools and as a form of punishment for an offence (arts. 23, 24 and 26).

43. The Committee recommends that the State party take all steps necessary to end all forms of corporal punishment in all settings, including schools and as a form of punishment for an offence. The Committee also recommends that the State party conduct effective investigations of all reports of corporal punishment and any other act of violence against children, prosecute perpetrators and, if they are convicted, deliver appropriate penalties, and guarantee effective remedies for the victim. The Committee also recommends that the State party conduct public education campaigns about the negative consequences of ill-treatment of children and promote alternative non-violent forms of discipline.

Rights of minority groups and Indigenous Peoples

44.Given that the State party does not recognize Indigenous Peoples in its territory, the Committee is concerned that communities that identify as Indigenous Peoples may be unable to fully exercise their rights as set out in the Covenant. The Committee notes the steps taken by the State party to address the internal displacement of Indigenous Peoples and local communities as a result of climate change-related natural disasters, including persons affected or displaced by droughts in Agandugume and Lambewi districts. The Committee is concerned about the increasingly violent clashes between armed groups and security forces, which have resulted in numerous civilian casualties and fatalities, as well as displacement. The Committee also regrets the lack of information on measures adopted to address internal displacement or to facilitate the return of individuals to their homes in Papua and to provide reparations to victims (arts. 1 and 27).

45. The State party should:

(a) Take all measures necessary to establish a legislative and policy framework that recognizes and protects the status and rights of all communities that identify as Indigenous Peoples;

(b) Adopt measures to protect Indigenous Peoples and local communities from internal displacement resulting from climate change-related natural disasters, armed conflict or business activities, in order to guarantee that prior consultations are conducted in a systematic and transparent manner to ensure their free, prior and informed consent and access to effective remedies;

(c) Prioritize facilitating the return of communities in order to protect the right to freely dispose of their land, natural wealth and resources, and their cultural rights, including in relation to ancestral land and burial practices;

(d) Ensure adequate access to justice, effective remedies and fair and adequate reparation;

(e) Repeal or amend legislation that undermines Indigenous Peoples ’ and local communities ’ right to land use and/or excludes their participation in decision ‑ making on all matters that affect them, such as provisions in the Law on Job Creation and in Law No. 3/2020 on Mineral and Coal Mining that contradict the 2013 ruling of the Constitutional Court on customary land rights.

D.Dissemination and follow-up

46. The State party should widely disseminate the Covenant, its second periodic report and the present concluding observations, with a view to raising awareness of the rights enshrined in the Covenant among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the country, and the general public. The State party should ensure that the periodic report and the present concluding observations are translated into the official languages of the State party.

47. In accordance with rule 75 (1) of the Committee ’ s rules of procedure, the State party is requested to provide, by 29 March 2027, information on the implementation of the recommendations made by the Committee in paragraphs 11 (impunity and accountability for past human rights violations), 29 (persons deprived of their liberty and conditions of detention) and 33 (freedom of expression) above.

48. In line with the Committee ’ s predictable review cycle, the State party will receive in 2030 the Committee ’ s list of issues prior to the submission of the report and will be expected to submit within one year its replies, which will constitute its third periodic report. The Committee also requests the State party, in preparing the report, to broadly consult civil society and non-governmental organizations operating in the country. In accordance with General Assembly resolution 68/268, the word limit for the report is 21,200 words. The next constructive dialogue with the State party will take place in Geneva in 2032.