Racial and Ethnic Discrimination -- Reviewed and Updated

Overview

The House of Representatives (DPR) passed the Bill on the Elimination of Racial and Ethnic Discrimination on 28 October 2008. The law has been in the process of being passed since 2005 when it first arose as a DPR Initiative. Indonesia already has a racial discrimination law, Law No. 29 of 1999, which is the enactment of Indonesia’s responsibilities and obligations as a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination.

The premise of the law is that everyone is born the same in the eyes of God and that everyone is equal before the law irrespective of their ethnicity or race. Nevertheless, these aspirations now have a little more gravitas as they have been codified into law. The need for the codification is that all forms of racial and ethnic discrimination are contrary to the principles contained in Pancasila, the 1945 Constitution of the Republic of Indonesia, and the Universal Declaration of Human Rights. Therefore, it is the Government’s view that this provides a mandate that demands that Indonesia take all steps necessary to remove racial and ethnic discrimination from the Republic of Indonesia.

Challenges of Racial and Ethnic Discrimination
Indonesia as an archipelagic nation faces many challenges on the race and ethnicity front. These challenges stem from the bringing together of many racial and ethnic minorities under the flag of a unitary republic. Nevertheless, the differences between the multi-racial and multi-ethnic constituent parts of the Republic are often the trigger for violence.

The law simplifies this to one of differences or imbalance in social, economic, and power opportunities which ultimately lead to substantial losses to the communities where they occur. The violence that accompanies these conflicts is usually extreme and involves not only rioting and looting and destruction but rape and murder as well.

Basic Impacts
Aside from the suffering of the local communities, it is also clear that the suffering extends way beyond the local communities and negatively impacts on the short, medium, and long term development of the nation as a whole. These impacts arise because of many factors, for example, a reluctance of investors to invest in areas that are prone to racial and ethnic conflicts.

What’s Covered
The law stipulates that it regulates issues such as the following:
· The basis for the elimination of racial and ethnic discrimination;
· Actions that satisfy the elements of discrimination;
· Provide protections for those citizens that have suffered racial and ethnic discrimination;
· Protect citizens from racial and ethnic discrimination that arises from central and regional government actions and actions of the broader community;
· Supervision to ensure the elimination of racial and ethnic discrimination by the National Commission of Human Rights;
· The rights of citizens to receive equal treatment with respect to their civil, political, economic, social, and cultural rights;
· Obligations and the role of the community in ensuring the elimination of racial and ethnic discrimination;
· Claims for compensation for losses sustained as a result of racial and ethnic discrimination; and
· Criminalizing discriminative behaviour.

Definitions
The definition of what constitutes discrimination is broad and can be civil, political, economic, social, and cultural. Race and ethnicity are also defined. Race is defined simply as physical characteristics that distinguish one group of people from another and lines of ancestry. Ethnicity is defined as a group that can be distinguished based on beliefs, values, norms, cultural traditions, language, history, geography, and kinship.

The point of eliminating discrimination is to promote and ensure harmony, peace, and security, among others. Therefore, discrimination is defined as any action that seeks to distinguish or differentiate individuals or makes exceptions for individuals thereby holding the potential to upset the harmony, peace, and security apple cart.

The law and the Elucidations are either silent or less than clear on what impact this might have on any affirmative action programs that may arise in the future.

Objectives
The objectives of the law are to ensure the elimination of racial and ethnic discrimination. However, simultaneously the law is also seeking to establish equality, freedom, justice, and universal human norms.

The idea of establishing universal human norms is an interesting objective for many reasons. Most notably among these is that many have tried to distinguish between Asian and Western values and that some norms are not universal, particularly in the context that “Asian cultures” favour the group over the individual right. The former Prime Minister of Malaysia, for example, was a staunch advocate of the Asian values systems. One could be forgiven for thinking that perhaps the law is Indonesia’s attempt to repudiate this point of view by codifying that there are universal human values with respect to race and ethnicity that must be protected irrespective of where one resides in the world, as this does not seem to be the case.

The reality is that the above claims to universal values worthy of protection are moderated in Article 2(2) with the requirement that the values of equality, freedom, justice and universal human norms be determined within the contextual frame of prevailing religious, social, cultural, and legal norms of the Republic of Indonesia.

Discriminative Actions
The law broadly lists what a discriminative action entails as anything that:
· Differentiates;
· Provides exceptions;
· Restricts; or
· Chooses

The above would require that each of these actions was undertaken within the parameters of race or ethnicity. Furthermore, this would also require that the consequences of these actions include the revocation, or reduction in acknowledgment, or the inability to obtain, or implement a human right in any civil, political, economic, cultural, or social sense.

Racial and Ethnic Vilification
The law also regulates hate speech and vilification in Article 4(b). The provision states that the promotion of hate or feelings of hatred through the use of the following, among others, is strictly prohibited:
· Writings or graphic depictions (pictures), and
· Speeches.

Supervision
The supervision of the provisions of the law is to be done by the National Human Rights Commission (Komnas HAM). Supervision will be undertaken through means such as monitoring and evaluation of government policy, investigation and examination of available facts of alleged discrimination, provision of recommendations to government, monitoring and evaluation of programs designed to eliminate racial and ethnic discrimination, and the provision of recommendations to the House of Representatives (DPR).

The Role of the Community
The provisions as they relate to the role of the community also address matters related to citizen’s rights. Simply, every citizen has a right to not be discriminated against based on their race or ethnicity. Every right gives rise to an obligation. Therefore, every citizen is also under an obligation not to make racial and ethnic distinctions and as such play a positive role in preventing racial and ethnic discrimination, and ultimately play a significant role in the process of eliminating racial and ethnic discrimination altogether.

Compensation
The law provides for compensation claims in the event that a citizen has been discriminated against. The claim can be either as an individual or as a class action where there are multiple claimants. Claims are to be lodged at the District Court.

Criminal Provisions
The criminal sanctions in the law allow for terms of imprisonment of between 1 and 5 years and fines of between IDR 100 million and IDR 500 million. The penalties for corporations attract a premium of 1/3.

Closing Provisions
Once the Law enters into force all current racial and ethnic discrimination laws remain in place unless they contradict the provisions of this law. If they do, then the provisions of the law will prevail.

Operation
The Law came into immediate force once it is enacted.

Conclusion

It is clear that the government through the enactment of this bill into law is intent on removing the scourge of racial and ethnic conflict and violence from the Indonesian scene. The law will clearly be complementary to other existing discrimination laws and consolidates and strengthens the overall anti-discrimination regulatory framework.

Nevertheless, there are parts of the law that need further work to clarify matters such as affirmative action programs to ensure balance where natural balance does not occur.

The reality is that enforcement will be the key. If there is lax enforcement of the provisions, simply the government refuses to take action where it can to eliminate racial and ethnic discrimination then the underlying issues that trigger racial and ethnic conflict will remain, and remain unchecked.

OJ Simpson

I just watched this program on OJ Simpson on the Australia Network here in Indonesia. It had interviews with all the players in the trial with regards to the defense team and a lot of the news people involved as well. It was a really interesting program.

There were lots of interesting questions posed on race, race relations, police, fabricating evidence, the role of defense counsel in defending guilty clients, and the main one, did he do it?

The two questions that I was most interested in were the last two. As a lawyer who has worked in criminal defense it is an interesting question to ponder with regards to defending guilty clients. There are plenty of strategies for defending a client. I generally ask my clients if they did it. If they say, no, then that is the end of it. I construct the defense strategy based on the assumption that the client is innocent of the charges being alleged.

If a client answers by saying, yes, then the strategy requires careful considerations in terms of ethical obligations. A defense lawyer must not advance an alternative scenario where they know that the scenario is not possible.

It is worth remembering that it is the prosecution in an adversarial system that must prove the case. The defense's main job is to highlight that there is reasonable doubt in the case being made by the prosecution that would render a guilty verdict unjust. It is not the defense's obligation to prove the prosecutions case for them.

Onto the biggest question of them all, did OJ do it?

Yes.

Race Politics -- Personal Musings

I have been having one of those mornings where I have not been able to sleep. In order to avoid doing work, I surf the Internet. I have been reading a little about race politics, playing the race card, and whether the US is a post-race nation. This got me thinking, probably no surprise to those that know me best, about how this debate would play out in Indonesia.

The Indonesian Constitution of 1945 would seem to support an argument that any Indonesian citizen born in this country, Indonesia, has a right to become its president. The Indonesian term is "orang asli" which loosely would translation to original person, and herein lies the problem. Does the term refer exclusively to indigenous Indonesians or does it also include the important and vibrant communities that trace their respective ancestries through to China, India, and the lands of the Middle East? Even more interestingly is does it include Indonesians who trace their ancestries to European roots who were born and raised in Indonesia from birth?

There has traditionally been a feeling that the highest office in the land was only opened to pribumi or indigenous Indonesians. My problem with this is that Indonesia is a socio-political construct and as such who is indigenous in this sense? Some have even gone as far as to say that one must be Javanese to gain the highest office. Unfortunately, for those that believe this, Soeharto chose one B.J. Habibie to be his Vice President. When Soeharto stepped down and Habibie became President these arguments were no longer valid. Habibie was was not Javanese.

The point of posting is not to write a 50-page tome on the merits or lack thereof of race-based politics. I can publish that research in a journal if it is good enough! Rather my intent here is in light of recent violence between religious followers and between ethnicities within Indonesia, perhaps an evaluation of race relations and politics is warranted.

I feel that Indonesia must sooner or later stand up and stare down those who flame the tensions simmering within Indonesian communities. This stand has to be one for tolerance, acceptance, and unity.

Many will argue that Indonesia is about being diverse but unified (or as some claim fragmented but one) yet this is hardly played out in real life. There must be a time where Indonesians identify not as pribumi and non-pribumi, or as Arab Indonesians, or Indian Indonesians, or Chinese Indonesians, but rather as "Indonesians". Maybe there is a need to return to a more literal understanding of the ideology of Pancasila (Five Principles).

After more than 60 years of independence Indonesia is still squabbling about race, about religion, and about tolerance! The founding fathers and mothers of this nation are undoubtedly rolling in their graves!