The International Human Rights Framework on the Right of Peaceful Assembly
Indonesia is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Indonesia is not a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
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. Paragraph 24 of the ASEAN Human Rights Declaration provides that: "Every person has the right to freedom of peaceful assembly." Indonesia is a founder member of ASEAN.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Article 28 of the Indonesian Constitution, the freedom to assemble shall be regulated by law. Article 28E(3) provids that:
Every person shall have the right to the freedom to associate, to assemble and to express opinions.
Law No. 9 of 1998 on Freedom to Express an Opinion in Public is the primary legislation governing assemblies. The Law requires the organiser of an assembly to notify the police at least 24 hours in advance, unless the assembly relates to academic activities on campus or to religious activities.Arts. 10 and 11, Law No. 9 of 1998 on Freedom to Express an Opinion in Public.The police may disperse the assembly if they find equipment used in the assembly that is dangerous to public safety or if the organiser fails to provide the information required under the 1998 Law. The law does not allow spontaneous demonstrations, unless it is in the form of an academic forum and held on a campus. Assemblies are not allowed on national holidays.
In mid-November 2015, the Governor of Jakarta issued Gubernatorial Regulation No. 232/2015 on the control of free speech in public spaces to replace an earlier regulation. While a previous regulation allowed only three locations in Jakarta for demonstrations, the new regulation provides that the three named locations are provided by the city administration for demonstrations. Protesters can demonstrate in other public spaces, so long as they do not damage public facilities, litter, or violate human rights.The regulation still requires that public protests take place only between 6 a.m. and 6 p.m. and the noise level of the sound system does not exceed 60 decibels. Sixty decibels is about as loud as a conversation in a restaurant.
Using any separatist movement’s symbols, such as a flag, is treason according to Articles 104-107 of the Criminal Code; these articles have been used against assemblies in Papua against the West Papua Separatist Movement.
The safety and security of those delivering their opinions peacefully in public spaces are also guaranteed by Article 15(1) of Law No. 2/2002 on the Indonesian Police.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
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 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 Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Article 47 provides that,use of firearms "shall be allowed only if strictly necessary to preserve human life". Paragraph 2 provides that 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; or to
f. respond to a situation that endanger lives, where more persuasive measures are inadequate.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2013 Concluding Observations on Indonesia, the Human Rights Committee expressed its concern at "undue restrictions of the freedom of assembly and expression by protesters in West Papua". It called on Indonesia to "ensure the enjoyment by all of the freedom of peaceful assembly and protect protesters from harassment, intimidation and violence".
Views of Civil Society
In May 2019, protests in Jakarta erupted into violence resulting in the deaths of eight people at the hands of the police and injuries to more than 700 others. Human Rights Watch said that the “Indonesian authorities should investigate the use of force by police during these protests and ensure that any police officer who used excessive force is held accountable”. A police spokesman said that seven men were fatally shot with rubber bullets but one was killed by conventional ammunition. The police said all their officers were equipped with rubber bullets.
According to Freedom House's 2019 report on Indonesia:
Freedom of assembly is usually upheld, and peaceful protests are common. However, assemblies addressing sensitive political topics—such as the 1965–66 massacres or regional separatism—are regularly dispersed, with participants facing intimidation or violence from hard-line vigilantes or police.