According to the Constitution: "Every person shall have the right to live and to defend his/her life and existence."Art. 28A, 1945 Constitution (as amended).Every person shall also "have the right to be free from torture or inhumane and degrading treatment".Art. 28G(2), 1945 Constitution (as amended).The rights to life and to freedom from torture are human rights "that cannot be limited under any circumstances".Art. 28L(1), 1945 Constitution (as amended).Every child shall have the right "to protection from violence".Art. 28B(2), 1945 Constitution (as amended).
Under Article 28, the freedom to assemble shall be regulated by law.
The Constitution further stipulates that the "defence and security of the state shall be conducted through the total people's defence and security system, with the Indonesian National Military (TNI) and the Indonesian National Police (INP) as the main force, and the people as the supporting force".Art. 30(2), 1945 Constitution (as amended).Unusually in terms of structure, the INP reports directly to the President.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||Not party|
There is not yet a regional human rights treaty to which South-East Asian nations can adhere, although a non-binding human rights declaration was issued by the Association of South-East Asian Nations (ASEAN) in 2013.
Police Use of Force
Law No. 2 of 2002 concerns the national police along with Presidential Decree No. 70 of 2002 which addresses the organisation and operation of the Police. There is no primary legislation specifically governing the police use of force. Instead, the use of force by law enforcement officials in Indonesia is governed by two regulations issued by the Chief of the Indonesian National Police: No. 1 of 2009 on the Use of Force in Police Action (Perkap 1) and No. 8 of 2009 on the Implementation of Human Rights Principles and Standards in the Discharge of Duties of the Indonesian National Police (Perkap 8).
According to Perkap 1, force should be used only as a last resort, in proportion to the threat posed, and should be formulated with a view to minimising damage or injury. Force "can be applied only when it is necessary and inevitable according to the situation being faced”.Article 3(b), Perkap 1.As further set out in the Regulation, police action should be “used in an accountable manner according to the prevailing law, to prevent, impede, or stop a subject’s behaviour that threatens the safety or endangers the life, property or chastity of others. The force is used to create order and enforce the law, as well as to maintain peace within the community”.Article 1(2), Perkap 1.It should respect the principles of legality, necessity and proportionality. All police need to ensure that “the use of force has to be carried out in a balanced manner, between the threat being confronted and the level of force and response by the INP officer so as not to cause excessive losses/injuries/suffering”.Article 3, Perkap 1.
According to Perkap 8, the police shall "refrain from using force unless absolutely necessary to prevent crime, or conduct an arrest in accordance with regulatory provisions concerning the use of force".Article 10(c), Perkap 8.The police "are strictly forbidden" to use force against anyone "who submits or has been taken into custody".Article 44(2), Perkap 8.Specific provisions govern recourse to the use of force and firearms. Article 45 requires that every police officer, "in taking measures involving the use of force must take into consideration the following":
a. non-violent actions and methods should be attempted first
b. use of force should only be practiced if strictly necessary
c. force may only be used for legitimate law enforcement
d. no exception nor grounds shall exist to permit the unlawful use of force
e. use and application of force must be proportional and only to achieve objectives permitted by law
f. use of power, firearms or equipment in applying force must be in proportion to the threat being faced
g. clear boundaries must be established for the use of firearms/equipment or the use of force
h. damage and injury resulting from the use of force must be kept to the minimum.
According to Article 46, all officers must be trained in the use of power, equipment, and firearms that can be used in applying force. They must also be trained in non-violent techniques and methods. Article 47 provides that:
(1) The use of firearms shall be allowed only if strictly necessary to preserve human life.
(2) 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
d. to prevent a serious crime that threatens the life of others
e. to restrain, prevent or stop a person who is committing [or] will be committing an action that can endanger lives; and
f. respond to a situation that endanger lives, where more persuasive measures are inadequate.
Prior to the use of firearms, a police officer must issue a clear warning by:Article 48(b2), Perkap 8.
1. identifying one’s self as an officer or personnel of the INP on duty
2. providing verbal warning in a clear and firm voice to the subject to desist, raise his/her hands, or lay down his/her weapon; and
3. providing sufficient time for the order to be carried out.
In "extremely pressing circumstances where a delay could result in the loss of life or gross injury of the officer or another person within the vicinity", the above warning "is not necessary".Article 48(c), Perkap 8.
According to Regulation No. 1 of 2009, police action should be “used in an accountable manner according to the prevailing law".Article 1(2), Perkap 1.Perkap 1 provides that a commander who instructs a police officer to use force "shall be held accountable for the risks/results of the force used when the ordered INP personnel do not deviate from the given directions”.Article 13(4), Perkap 1.
Perkap 8 requires that following a use of firearms, the officer reports such use; provides medical attention to any person sustaining a gunshot wound; notifies the family or relatives of the injured or affected person; and prepares a detailed report on the use of firearms.Article 49(2), Perkap 8.If a person "objects or feels adversely affected by the use of firearms by the officer", that officer "shall provide a detailed explanation on the reason for the use of the firearms, what actions were taken and the result of such action"; and an investigation must be commenced in accordance with the law.Article 49(2), Perkap 8.
In 2013, the United Nations Human Rights Committee expressed its concern that "the National Police Commission, which is mandated to receive public complaints against law enforcement personnel, is weak as it has neither powers to summon law enforcement personnel nor the mandate to conduct independent investigations".Human Rights Committee, Concluding observations on the initial report of Indonesia, UN doc. CCPR/C/IDN/CO/1, 1 August 2013, §16.In August 2017, Amnesty International expressed concern about police accountability in Indonesia, which is hampered by the lack of an independent, effective and impartial oversight mechanism to investigate human rights violations allegedly committed by the security forces.Amnesty International, "Indonesia: Investigate police's use of lethal force against Papuans in Deiyai", 15 August 2017.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2013 Concluding Observations on Indonesia's initial report on implementation of the ICCPR, the Human Rights Committee stated its concern at "increased reports of excessive use of force and extrajudicial killings by the police and the military during protests, particularly in West Papua, Bima and West Nusa Tenggara". The Committee was "particularly concerned at reports that the State party uses its security apparatus to punish political dissidents and human rights defenders".Human Rights Committee, Concluding observations on the initial report of Indonesia, UN doc. CCPR/C/IDN/CO/1, 1 August 2013, §16.The Committee called on Indonesia to
take concrete steps to prevent the excessive use of force by law enforcement officers by ensuring that they comply with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
take appropriate measures to strengthen the National Police Commission to ensure that it can effectively deal with reported cases of alleged misconduct by law enforcement personnel
take practical steps to put an end to impunity for its security personnel regarding arbitrary and extrajudicial killings, and
take appropriate measures to protect the rights of political dissidents and human rights defenders.
It further stated that Indonesia "should systematically and effectively investigate and prosecute cases of extrajudicial killings and, in the event of a conviction, punish those responsible, and provide adequate compensation to the victims’ families".Human Rights Committee, Concluding observations on the initial report of Indonesia, UN doc. CCPR/C/IDN/CO/1, 1 August 2013, §16.