Democracy, Autonomy and the Constitutional Court
Democracy, Autonomy and the Constitutional Court
Indonesia's Police: The Problem of Deadly Force
Indonesia's Police: The Problem of Deadly Force
Op-Ed / Asia

Democracy, Autonomy and the Constitutional Court

Two dramas, separate but related, are playing out in Aceh and Papua, each questioning the authority of the Constitutional Court in the name of protecting autonomy. Driven by narrow political self-interest, each nevertheless raises serious questions about how much authority Indonesia is willing to grant these regions.

In Aceh, Partai Aceh, dominated by the old diaspora elite around former GAM prime minister Malik Mahmud, has rejected the December 2010 ruling by the Constitutional Court allowing independent candidates to contest local elections in Aceh. The court struck down a provision of the 2006 Law on the Governing of Aceh (LOGA) that permitted independent candidates to run only in the first election after the law went into force; thereafter they would have to be nominated by national or local parties -- which are only allowed in Aceh and nowhere else. It noted that since July 2007, independent candidates had been allowed across the country, and it would be violating the rights of citizens who lived in Aceh if they were to banned only there. 

In response, Partai Aceh leaders argue that the Constitutional Court has no authority in autonomous Aceh. It is a self-serving reaction: they were all deeply critical of the LOGA at the time it was passed and only grudgingly agreed to its enactment, arguing that it diluted or in some cases contradicted provisions of the 2005 Helsinki Memorandum of Understanding (MoU) that finally brought peace to Aceh. The MoU,  however, implied that independent candidates would be allowed in “2006 and thereafter”.  Now Partai Aceh is rallying behind the more restrictive wording of the LOGA, in an effort to prevent the current governor, Irwandi Yusuf, also from GAM, from running against their chosen candidate. 

A set of similar issues has arisen in Papua. Article 12(a) of Papua’s 2001 special autonomy law provided that the governor and vice-governor of Papua must be indigenous Papuans, verified as such by the Papuan People’s Council. Now Komarudin Watupun, head of the Indonesian Democratic Struggle Party in Papua, has  petitioned the Constitutional Court to strike down that clause. Born in the Kei islands in southeastern Maluku, he was deputy head of the Papuan  provincial parliament from 2004-2009 and wants to run for vice-governor this year. 

Ruben Magai, a political opponent of Komarudin’s in the provincial parliament, says that there are only two aspects of special autonomy that make Papua politically different from other provinces. One is the requirement that the top provincial office-holders be indigenous, defined as “people of Melanesian race belonging to one of the ethnic groups of Papua province or accepted and recognised as indigenous by Papuan customary leaders”. The other is the establishment of the Papuan People’s Council as a guardian of Papuan rights and cultural values. If the court strikes down Article 12(a)  -- on the grounds of discrimination, for example – there will be very little left that is “special” about Papua, says Magai.

The court has already ruled on an earlier challenge to the Papuan autonomy law, again motivated by self-interest. Article 7 says that the provincial parliament shall choose the governor and vice-governor. This was before a major electoral reform was passed in 2005, opening the door to direct elections at the provincial and sub-provincial levels.  John Ibo, the speaker of the provincial parliament, and two others petitioned the court to declare direct elections for governor unconstitutional because they violated the 2001 law – and as such allowed national laws to trump autonomy provisions. In early March 2011, the court ruled that direct elections did not undermine autonomy, among other things because the provision on  indigenousness still stood.  

In both the Aceh and Papua cases, the court has upheld democratic principles – greater political participation through independent candidates in the one, direct elections in the other – while at the same time recognising provisions in each area that are unique.  

But the self-interested and hypocritical critics of the court do raise an important question: what makes autonomous Aceh and Papua all that different from other provinces? Economically, they get vastly more money; politically, there is not much difference in their relationship with the central government. The question becomes important as various initiatives to address longstanding grievances in Papua take place: what areas of central authority might be gradually ceded? Setting procedures for local elections might be one, but it becomes a more difficult case to argue when it is a national institution that is defending democracy and local institutions that are trying to subvert it. 

In both regions, local activists bemoan the lack of tighter supervision by the National Audit Board or the Anti-Corruption Commission over how special autonomy funds earmarked by Jakarta for the two areas are spent. But how greater autonomy could accommodate stricter fiscal control from the centre is not clear.

The big question is whether there is any possibility for greater involvement of provincial authorities in decision-making on justice and security issues. Security is an area in both laws that is clearly reserved for the central government, although during the development of the LOGA, Acehnese civil society groups fought unsuccessfully to have this be restricted to “external security”.  Papuan demands for the complete withdrawal of military forces is a non-starter, but there might be room for more effective consultation on deployment of troops and removal of the burden, often informal, on local governments to pay for them.  Both autonomy laws paid lip service to justice and  accountability issues but there has been little movement to implement them.

In the meantime, those Acehnese and Papuans who are using the Constitutional Court as a scapegoat for their own electoral problems should find more constructive ways to argue the case for autonomy –and be a little more convincing about their commitment to democratic values.

Op-Ed / Asia

Indonesia's Police: The Problem of Deadly Force

My four year-old daughter recently came home from her Jakarta kindergarten with a story about a visit to the school from the head of our local police station. 'If there is a robber and he's running away, the policeman will pull out his gun, fire in the air, and if he doesn't stop then he will shoot him in the leg', she recounted breathlessly.

I have spent 25 years working in and around conflict zones, including more than a decade in Indonesia. My reaction might not have been that of the average parent. 'That', I replied, 'is a violation of Perkap Number 8.' Needless to say, my reference to Police Regulation Number 8 of 2009 regarding Implementation of Human Rights Principles and Standards in the Discharge of Duties of the Indonesian National Police was lost on her. She thought the visit was great.

I had recalled Perkap 8 when re-reading the Hansard of the recent sparring between Australian Foreign Minister Senator Bob Carr and Victoria Greens Senator Richard Di Natale over the police shooting of protesters in Papua. But it is not just in Papua where questionable use of deadly force by the Indonesian National Police (INP) takes place. It happens across the country. And this was what Perkap 8 was put in place to prevent.

Article 47 of Perkap 8 says that 'the use of firearms shall be allowed only if strictly necessary to preserve human life' and 'firearms may only be used by officers: a. when facing extraordinary circumstances; b. for self defense against threat of death and/or serious injury; c. for the defense of others against threat of death and/or serious injury.' This is Indonesian law, taken from the UN Code of Conduct for Law Enforcement Officials, and this is what should be used to assess police actions, wherever in the country they occur.

The fatal shooting on 14 June 2012 of Mako Tabuni, deputy head of the National Committee of West Papua (KNPB), in Jayapura, capital of Papua province, made Senate Estimates in 2012. The shooting of three protesters in Sorong on 30 April 2013, West Papua province, was mentioned in the testy 5 June 2013 exchanges between Senators Carr and Di Natale. You can watch it above.

In the first incident, detectives shot a suspect in the leg as he was running away and then left him to die in a hospital allegedly without making any effort to treat his wounds. In the second, police claim they were threatened by armed KNPB activists. Without more information it is difficult to judge if their response was disproportionate. Police always say they are shooting in self-defense, but it has become such a common excuse that it has started to lose its plausibility.

Cases outside Papua do not garner much attention in Australia, but lethal shootings happen all the time. On 1 September 2011 seven villagers were killed during a rowdy protest against police brutality in the Central Sulawesi district of Buol, a place so obscure even most Indonesians cannot find it on a map.

On 7 March 2013, soldiers burned down a police station in Baturaja, South Sumatra, after their off-duty comrade, First Private Heru Oktavianus, was shot dead by a police officer while speeding away from a traffic violation.

On 8 May 2013 police in Java killed six suspected terrorists in a series of raids. The police usually claim the suspects were armed and resisted arrest. But it is not always true, and many could have almost certainly been captured alive.

Ordinary criminals are shot with distressing frequency, as my daughter's visitor suggests, without any outcry at home or abroad.

Perkap 8 was signed by the then police chief Sutanto, a real reformer. It has not gotten very far. One foreign police officer working on a bilateral community policing program in a large metropolitan command told me he had once seen a copy of the Perkap on the chief's desk but suspected it had been disseminated no further.

Even when progressive regulations or orders are issued and disseminated, they are not always followed. In October 2012, the police chief of Papua, Tito Karnavian, former head of the anti-terrorism unit Detachment 88 (Densus 88), announced that he had banned police from using live ammunition when handling demonstrations in the region. This was progress and it was implemented for some demos, but the deaths in the Sorong case suggest live ammunition was used.

As Article 46 of Perkap 8 says, 'all officers must be trained in the use of power, equipment and firearms that can be used in applying force' and 'must be trained in non-violent techniques and methods.' Training almost 400,000 officers across 33 provinces is a logistical challenge, though it might be a good idea to start with elite units such as Densus 88 or personnel in the Papua provinces.

The new national head of the INP, about to be appointed, might breathe new life into two reforms already in place: implementation of Perkap 8 and Chief Sutanto's other landmark regulation on community policing, Perkap 7. The INP is a very hierarchical organisation that does follow firm orders from above. While its size makes complex reform difficult, its hierarchical nature makes implementing existing regulations with firm orders easier.

The first duty of the incoming INP chief, who reports directly to the president, will be to secure the 2014 elections. Making sure those deployed to safeguard this 'festival of democracy' are properly trained and equipped to use non-lethal force will be an important first step. After a new head of state is elected, he or she should consider issuing a directive that would see Perkap 8 properly implemented. The use of less deadly force could even be politically popular in some parts.

Outside help may also be needed, and this is where Australia comes in. A few decades back, the Victorian state police had a problem of using too much deadly force and created Project Beacon to try to rectify it. They changed the way they thought about the problem, overhauled training, and gave officers on the beat new tools, like pepper spray. Foreign assistance along these lines could help the INP improve performance and increase accountability. Crisis Group has long argued that the INP needs better orders, training, and equipment for the use of non-deadly force.

If the INP is to be more the service it aspires to be rather than the force it is, it needs to shed its military mindset, hold serious post-operation reviews after each fatal incident, and decrease reliance on shooting first and asking questions later, regardless of whether officers are following locally accepted standard procedure. When the time comes and the INP is ready to carry forward the reform of Perkap 8, Australia should be there to help.

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