Adriaan Bedner
On 23 May this year Pemuda Pancasila (PP) members came to the house of the poet Kelana, to ask him for ‘clarification’ about ‘communist photos’ he had uploaded on the public Facebook account of Kendal District. The pictures showed a meeting a few days earlier in the local Nahdlatul Ulama (NU) building. The official and rather puzzling title of the meeting was ‘National Awakening and the Javanese Feudal Co-optation Policy’, but Kelana had allegedly posted them under the title ‘Indonesian Communist Party Awakening Day’. Policemen came along to maintain order, but little happened as Kelana was not home. By the time the PP arrived Kelana had already removed the photos, in response to a flood of negative comments on social media. PP leader Gufron alleged that Kelana had disguised a communist political meeting as an art performance. If this was true, Kelana would have violated Provisional People’s Consultative Assembly Decree No. XXV/1966, which prohibits any propaganda promoting Marxism/Leninism.
This episode is one of many examples of how 50 years after the 1965 massacres, communism and the Indonesian Communist Party (PKI) remain taboo subjects in Indonesia. The decision by some university faculties to prohibit the screening of Joshua Oppenheimer’s documentary Senyap (The Look of Silence) is part of the same pattern. Moreover, Indonesian anti-communist forces are backed up by an elaborate anti-communist legal framework the Suharto regime put into place soon after it started the killings and arrests following the failed coup of 30 September 1965.
However, while most laws and regulations banning communism are still in place, those violating the rights of alleged communists have now all been abolished or annulled.
Legalising anti-communism
The foundation of the anti-communist legal structure is the People’s Consultative Assembly Decree No. XXV/1966. It replaced Presidential Decree No. 1/3/1966, which was issued by Suharto immediately after he received the mandate from President Sukarno to take any measures necessary to restore order. By then the killings and detentions had already started on the basis of instructions issued by Suharto, as the self-appointed Head of the Operational Command for the Restoration of Order and Security (known as Kopkamtib). This body operated as a secret service, which had limited legislative power since its instructions were not binding on those outside the command. On the basis of the more solid Provisional People’s Consultative Assembly Decree No. XXV/1966, the New Order rapidly developed its legal system to vilify communism and to dehumanise those associated with it. It did this firstly by prohibiting the promotion of communism. This prohibition was soon incorporated in press-related regulations. It became a separate clause in the Anti-Subversion Law and also found its way into a myriad of lower-level administrative regulations.
The 1966 decree also led to the targeting of persons presumably tainted by communism, dividing them into three categories. Those in the A-category were ‘proven’ to have been involved in the communist coup of 1965. In 1971 they numbered about 5000. Only a tiny minority of them were prosecuted before a court, and when trials occurred they seldom complied with fair trial procedure. The B-category was much larger, including some 60,000 persons by 1976. These people were deemed guilty by association, because they had been members of the PKI or related organisations. Their status was determined by party lists, which were compiled on the basis of dubious data, including information from village officials, untested accusations, confessions given under torture, or fabricated interrogation reports. Confined to the same or similar prisons and camps as those from the A-category, they were to be held for an indefinite period in a Guantanamo-like construction.
According to Amnesty International the overall number of people detained was more than one million. Most of these fell into the C-category, which was in turn subdivided into three groups. C1 consisted of those who had either been involved in the Madiun affair in 1948, who had aided the PKI after 1965 or who had not explicitly condemned the PKI. C2 were members of outlawed associations that promoted the same principles as the PKI, so this category largely overlapped with the B-category. C3 were those who had been sympathetic to the PKI but who had not been directly involved. In practice the C3 category comprised relatives and friends of those in the other categories.
Legal oppression
The A- and B-categories had no formal legal basis, as they were founded on Kopkamtib decrees. These decrees were never even published. The C-category by contrast was eventually regulated by Presidential Decree No. 28/1975. When they were finally released, and even if they had never been detained, all those categorised as A, B or C had the letters ‘ET’ (ex-tapol, former political detainee) stamped on their identity card. In 1995 this group numbered some 1.3 million people. Their rights were severely undermined: they were not allowed to vote or to run for public office, they were not eligible for scholarships, and they were excluded from government employment unless they could provide a certificate of non-involvement in the events of 30 September 1965.
The Supreme Court's 2011 decision, although publicly available online, has been underreported.
The most essential rules were found in Minister of Home Affairs Instruction 32/1981. Pursuant to these instructions, ex-tapol needed a residential permit from the district government and they had to ask for permission each time they left the district. The same instructions prohibited ex-tapol from becoming teachers, journalists, lawyers, artists or any other profession that could potentially influence public opinion. Possessions confiscated at the time of their arrest were never returned – once again there was no legal basis to support such theft. Ex-tapol over the age of 60 could only get an identity card for four years instead of one for life. Those Indonesians who lived abroad at the time of the coup and who were suspected of having leftist sympathies were a special case – their Indonesian citizenship was revoked and they were prohibited from returning home.
During the 1970s most political prisoners from the B-and C-categories were released, but without any substantive loosening of the restrictions on their rights. Only very slowly did some legal change occur under the New Order. The prohibition on voting was gradually relaxed, although the screening for the 1992 elections still resulted in the exclusion of 36,345 ex-tapol. By 1995 the government announced that it would abolish the ET code on identity cards, but the underlying registration system remained in place. Other rules were amended, but brought no significant change.
Reformasi: the limits of legislation
After the start of reformasi the situation altered dramatically. The Anti-Subversion Law was abolished in 1999 and in the same year the last tapol were released for ‘humanitarian reasons’. President Habibie adopted a decree allowing those who lost their Indonesian citizenship to regain it and return to Indonesia. The Election Law of 1999 re-enfranchised ex-tapol, although they were still barred from becoming a candidate. At the same time, the prohibition on promoting communism continued, and parliament added a number of clauses to the Criminal Code making the spread of communist teachings a crime that attracts 12 to 20 years imprisonment.
Liberating changes accelerated under Habibie’s successor, Abdurrahman Wahid. He lifted the Presidential Decree on screening and registration of ex-tapol, and by Presidential Decree 38/2000 he abolished the successor of the Kopkamtib, Bakorstanas. He also offered the victims of the purges after 1965 an apology for the role the Islamic mass organisation Nahdlatul Ulama had played in them, started preparations for establishing a Truth and Reconciliation Committee and, finally, pleaded for the abolition of Provisional People’s Consultative Assembly Decree No. XXV/1966.
This last, however, was a bridge too far. Demonstrations by militant Muslim organisations followed, as well as attacks in the press. The People’s Consultative Assembly refused to go along with Wahid’s suggestion. In 2003, under the presidency of Megawati, the People’s Consultative Assembly was to decide which of its pre-1998 decrees would remain valid. A two-third majority voted in favour of upholding the 1966 decree, so the cornerstone of discriminatory regulations has remained in place. During the tenure of presidents Megawati and Susilo Bambang Yudhoyono hardly anything changed. In 2003 the Chair of the Supreme Court, the Deputy Head of Parliament, and the Chair of the National Human Rights Commission sent letters to President Megawati to urge her to use her presidential prerogative to rehabilitate the victims of the 1965-1966 purges, but neither Megawati nor her successor responded.
Courts continue
The positive change that has occurred since this time has been down to the judiciary. The first major case to go to the courts was a challenge to a clause in the Election Law of 2003 which barred ex-tapol from running for office. In a widely publicised judgment from 2003 the new Constitutional Court found by an overwhelming majority that ‘former members of the Indonesian Communist Party and the organisations under it have to be treated the same as other citizens without discrimination’. The prohibition in the Election Law could not be justified as being ‘founded on strong reasons, logical and proportional’.
While this case is often considered to be the most significant judicial decision in favour of ex-tapol rights, a more fundamental one was handed down by the Supreme Court (which deals with challenges to regulations below the level of acts of parliament). It concerned a request to review Presidential Decree 28/1975, the cornerstone of the restrictions against C-category ex-tapol. In a groundbreaking 2011 case the Court ruled that the Decree had already lost its validity because Presidential Decree No. 38/2000 had abolished the screening of candidates. Most importantly, the Court decided that because the Bakorstanas had been abolished, all of its regulations had become inoperative. This means that the Court in a single decision confirmed that virtually all regulations limiting the citizenship rights of ex-tapol had lost their validity. If the reasoning of the Court is applied by analogy, this applies to all regulations below the level of acts of parliament.
It is remarkable that the Supreme Court’s decision – with its wide-ranging consequences – has not received as much publicity as the Constitutional Court’s ruling. Sometimes the judgment is even conceived as a ‘recommendation’ to the president, which is nonsense, since the Supreme Court clearly has the power to annul government regulations. In any case, while compensation or even official recognition of the injustice done to ex-tapol may still be far away, their citizenship rights have been fully restored by the judiciary.
Communism and ex-tapol divided
It thus seems that the prohibition of ‘communism’ and the position of ‘ex-communists’ no longer run in parallel. The political and societal resistance against communism seems to have increased in recent years and the solid foundation of the Provisional People’s Consultative Assembly Decree No. XXV/1966 makes it difficult to tackle the issue. But in the case of citizenship rights for ex-tapol the combination of President Wahid’s legislative actions and an independent judiciary have made a legal change which will be hard to undo. To implement it will take time because many officials are unaware of the implications of the Supreme Court’s judgment. As a result they are likely to continue applying rules that are no longer legally valid. However, in the longer run they will probably have to adjust to the new legal situation. This will allow the ex-tapol to finally focus on getting recognition and reparation instead of having to fight for equal citizenship.
Adriaan Bedner (a.w.bedner@law.leidenuniv.nl) teaches and researches at the Van Vollenhoven Institute, attached to the Law School of Leiden University. The institute specialises in the study of legal systems in developing countries.