Yogyakarta, 04 - Fakultas Hukum Universitas Brawijaya

Yogyakarta, 04 – 07 April 2017

LP3M & Faculty of Law Universitas Muhammadiyah Yogyakarta2017

PROCEEDINGInternational Conference on Law and SocietyYogyakarta, 04 – 07 April 2017COPYRIGHTS 2017 International Conference on Law and SocietyAll rights reserved no part of this book may be produced, stored in a retrievalsystem, or transmitted, in any form of by any means, electronic, mechanical,photocopying, recording, or otherwise, without permission in writing from thepublisher.

Editor:Farid Sufian Shuaib (Guest Editor)Sonny Zulhuda (Guest Editor)Iwan SatriawanYordan GunawanM. Endrio Susila

Published by:International Conference on Law and Society, Faculty of Law & Board of Research,Educational Development and Community Empowerment (LP3M) UniversitasMuhammadiyah YogyakartaProceeding International Conference on Law and Society, YogyakartaFaculty of Law & LP3M UMY379; 18,5 x 29,7 cm

Scientific Committee

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Abdurrahman Bin Haqqi (University Islam Sultan Sharif Ali, Brunei Darussalam)Agus Yudha Hernopo (Universitas Airlangga, Surabaya, Indonesia)Ainul Jaria Binti Maidin (International Islamic University Malaysia, Malaysia)Denny Indrayana (University of Melbourne, Australia)Emmy Latifah (Universitas Negeri Sebelas Maret, Surakarta, Indonesia)Farid Sufian Shuaib (International Islamic University Malaysia, Malaysia)

Fatih Aydogan (University of Istanbul, Turkey)Iqbal Abdul Wahab (International Islamic University Malaysia, Malaysia)Iwan Satriawan (Universitas Muhammadiyah Yogyakarta, Indonesia)Khairil Azmin Mokhtar (International Islamic University Malaysia, Malaysia)M. Akhyar Adnan (Universitas Muhammadiyah Yogyakarta, Indonesia)Meilinda Eka Yuniza (Universitas Gadjah Mada, Yogyakarta, Indonesia)

Muchammad Ichsan (Universitas Muhammadiyah Yogyakarta, Indonesia)Muhammad Khaeruddin Hamsin (Universitas Muhammadiyah Yogyakarta, Indonesia)Mukti Fajar ND (Universitas Muhammadiyah Yogyakarta, Indonesia)Nadirsyah Hosen (Monash University, Australia)Prapanpong Khumon (University of Thai Chamber and Commerce, Thailand)Shimada Yuzuru (Nagoya University Japan)

Sogar Simamora (Universitas Airlangga, Surabaya, Indonesia)Sri Wartini (Universitas Islam Indonesia, Yogyakarta, Indonesia)Sukree Langputeh (Fatoni University, Thailand)Syamsul Anwar (Universitas Islam Negeri Sunan Kalijaga, Yogyakarta, Indonesia)Yance Arizona (Leiden Universiteit, the Netherlands)Zaid Mohamad (International Islamic University Malaysia, Malaysia)

Zuhairah Binti Abd Gaddas (Universitas Islam Sultan Zainal Abidin Kuala Terengganu, Malaysia)

Assalaamu’alaikumWarahmatullahiWabarakatuh,In the Name of Allah, the most Gracious and the most Merciful. Peace and blessings be upon

our Prophet Muhammad (S.A.W).First and foremost, I felt honoured, on behalf of the university to be warmly welcomed and to

be given the opportunity to work hand in hand, organizing a respectable conference. Indeed, thisis a great achievement towards a warmers multilateral tie among UniversitasMuhammadiyah

Yogyakarta (UMY), International Islamic University Malaysia (IIUM), UniversitiIslam Sultan SharifAli (UNISSA), Universiti Sultan ZainalAbidin Malaysia (UNiSZA), Fatoni University, Istanbul Univer-sity, Fatih Sultan Mehmet Vakif University and Istanbul Medeniyet University.

I believe that this is a great step to give more contribution the knowledge development andsharing not only for eight universities but also to the Muslim world. Improving academic qualityand strengthening our position as the procedures of knowledge and wisdom will offer a meaning-

ful contribution to the development of Islamic Civilization. This responsibility is particularly sig-nificant especially with the emergence of the information and knowledge society where valueadding is mainly generated by the production and the dissemination of knowledge.

Today’s joint seminar signifies our attempts to shoulder this responsibility. I am confident tosay that this program will be a giant leap for all of us to open other pathways of cooperation. I amalso convinced that through strengthening our collaboration we can learn from each other and

continue learning, as far as I am concerned, is a valuable ingredient to develop our universities. Isincerely wish you good luck and success in joining this program

I would also like to express my heartfeltthanks to the keynote speakers, committee, contribu-tors, papers presenters and participants in this prestigious event.

This educational and cultural visit is not only and avenue to foster good relationship betweenorganizations and individuals but also to learn as much from one another. The Islamic platform

inculcated throughout the educational system namely the Islamization of knowledge, both theo-retical and practical, will add value to us. Those comprehensive excellent we strived for mustalways be encouraged through conferences, seminars and intellectual-based activities in line withour lullaby: The journey of a thousand miles begin by a single step, the vision of centuries aheadmust start from now.

Looking forward to a fruitful meeting.

Wassalamu’alaikumWarahmatullahiWabarakatuh

Message from Chairman

Yordan GunawanChairman, International Conference on Law and Society 6,

Universitas Muhammadiyah Yogyakarta

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Alhamdulillah all praise be to Allah SWT for his mercy and blessings that has enabled theFakultasHukum, UniversitasMuhammadiyah Yogyakarta in organizing this Inaugral InternationalConference on Law and Society 6 (ICLAS 6).

This Conference will be providing us with the much needed academic platform to discuss therole of law in the society, and in the context of our two universities, the need to identify the roleof law in furthering the progress and development of the Muslims. Muslim in Indonesia and all

over the world have to deal with the ubiquity of internet in our daily lives life which bring with itthe adventages of easy access of global communication that brings us closer. However, internetalso brings with it the depraved and corrupted contents posing serious challenges to the moralfabric of our society. Nevertheless, we should be encouraged to exploit the technology for thebenefit of the academics in the Asia region to crat a platform to collaborate for propelling therenaissance of scholarship amongst the Muslims.

This Conference marks the beginning of a strategically planned collaboration that must not bea one off event but the beginning of a series of events to provide the much needed platform fornetworking for the young Muslim scholars to nurture the development of the Muslim society.

UMY aims to be a World Class Islamic University and intend to assume an important role inreaching out to the Muslim ummah by organising conferences hosting prominent scholars toenrich the develompment of knowledge. This plan will only materialise with the continous sup-

port and active participation of all of us. I would like to express sincere appreciation to thecommittee in organising and hosting this Conference.

Foreword

Trisno RaharjoDean, Faculty of Law, Universitas Muhammadiiyah Yogyakarta

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Advisors Rector, Universitas Muhammadiyah YogyakartaGUNAWAN BUDIYANTODean, Law FacultyTRISNO RAHARJO

Vice Dean, Law Faculty – Student, Alumni & PartnershipMUKHTAR ZUHDYVice Dean, Law Faculty – Human Resource DevelopmentPRIHATI YUNIARLIN

Steering CommitteesAinul Jaria Binti Maidin (International Islamic University Malaysia, Malaysia)Ashgar Ali Ali Mohamed (International Islamic University, Malaysia)Farid Sufian Shuaib (International Islamic University Malaysia, Malaysia)Hajah Mas Noraini bin Haji Mohiddin (University Islam Sultan Sharif Ali, Brunei Darussalam)Ibrahim Kaya (University of Istanbul, Turkey)Iwan Satriawan (Universitas Muhammadiyah Yogyakarta, Indonesia)Khaeruddin Hamsin (Universitas Muhammadiyah Yogyakarta, Indonesia)

Leli Joko Suryono (Universitas Muhammadiyah Yogyakarta, Indonesia)Nasrullah (Universitas Muhammadiyah Yogyakarta, Indonesia)Nejat Aday (Fatih Sultan Mehmed University Istanbul, Turkey)Refik Korkusuz (Istanbul Medeniyet University, Turkey)Sukree Langputeh (Fatoni University, Thailand)Yordan Gunawan (Universitas Muhammadiyah Yogyakarta, Indonesia)

Zuhairah Binti Abd Gaddas (University Islam Sultan Zainal Abidin Kuala Terengganu, Malaysia)

ChairmanYordan Gunawan

Secretary and SecretariatResa WiliantiAndika Putra

TreasurerReni Budi SetyaningrumQodriyah Isniyati

Committee

ProgramBagus Priyo PrasojoMohammad Hazyar ArumbinangHary Abdul Hakim

Ex. SecretaryFalah Al GhozaliEka Widi Astuti

TransportationRaiyan Maulana

Habib Kesuma Dharma

DocumentationAlbert Norman PujimoriAndi Rizal Ramadhan

AccommodationHikma Fajar MukminNovian Fahreza

Publication & PublicityAndi Agus SalimMufidah Haulah Ramrainy

Liaison OfficerAndi Pramawijaya Sar (Coordinator)AdisPutriNelanikenAndi Rifky Maulana EfendyAnnisa Riani Artha

Ade ArmansyahBanu Putera ArutalaDania Amareza PratiwiDary Zulkarnaen YuniantoDean AdamsDenandro Yusuf

Dinda AndrianditaEggy Regina YuniarFE Fikran AlfurqonFirdausi Al AmmarieHanifaEriyantoHanna NurAfifahYogarIntan Zahra Husnaul Aziza

IrfanNurFahmiKurnia Maharani SantosoLitha Nabilla MallolonganMohammad Hari AdipurnaMohamadAjiSantikoMuhammad Bima Aoron Hafiz

Muhammad Irfan Nur FahmiNaufalBagusPratamaNaufal Halim HaidarNerissa AzmesNurul AliaRama Cahyo Wicaksono

Rima Ayu AndrianaRizki HabibullahRizkita Bunga SalsabillaSarah FadhilahTareq Muhammad Aziz ElvenWalidaAlviLuthfiani

Widya AuliaWitri UtamiYuliani Iriana SitompulZulfiani Ayu Astutik

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130 Strengthening Constitutional Democracy through Constitutional Adjudication Institutions:A Comparative Study between Indonesia and AustraliaIwan Satriawan, KhairilAzmin Mokhtar, Muhammad Nur Islami, Salim Farrar

147 Position and Acceptance of Fatwa of Council of Indonesian Ulama (MUI) by the State inIndonesian Legal System and Religious CourtIfaLatifaFitriani

153 Penang World Heritage Office: Quo Vadis?Nizamuddin Alias

163 Measuring Feasibility of the Use of Chemical Castration Toward Offender of Sexual ViolenceAgainst Children in View of Human Rights And Proportionality TheoryRusmilawati Windari

178 The Dynamics of Human Rights Enforcement In Indonesia: a Misconception and PoliticalConsideration in the Formulation of Law Number 26 Year 2000 on Human Rights CourtMuhammad Iqbal Rachman&SahidHadi

187 The Challenges to Build the Culture of Human Rights in IslamMartinus Sardi

195 International Perspective on Incorporating Good Governance Principles in Three Countries’Land Administration System: Malaysia, Turkey and IndonesiaSunarno, Ainul Jaria Maidin

210 Mergers and Acquisition Law: The Need for Harmonization in ASEANMushera Bibi Ambaras Khan, Ida Madieha, Nasarudin Abdul Rahman, Mohd Radhuan Arif Zakaria

220 The Urgency of Strengthening the Regulation And the Implementation of MusharakaMutanaqishah Financing on Islamic Banking in IndonesiaIsti’anah ZA, Falah Al Ghozali

233 Securing the Right to Life on the War on Terror: A Comparative Analysis of Indonesia andEuropePrischa Listiningrum, RizqiBachtiar, MohFadli

241 The Inconsistency of Supreme Court Decision to Annul the Arbitratral Award in IndonesiaFadia Fitriyanti

246 Utilization (intifa’) of Unlawful Wealth Acquired by Unlawful Means from Islamic LegalPerspectiveBadruddin Hj Ibrahim

254 The Urgency of ASEAN Human Rights Court Establishment to Protect Human Rights inSoutheast AsiaYordanGunawan, Tareq Muhammad Aziz Elven

Securing the Right to Life on the War on Terror:A Comparative Analysis of Indonesia and Europe

PRISCHALISTININGRUM,1RIZQIBACHTIAR,2 AND MOHFADLI3

1Faculty of Law, Brawijaya University, email: [email protected] Master in Public Administration (MPA), University of Birmingham, email: [email protected].

3 Faculty of Law, Brawijaya University, email: [email protected].

ABSTRACTThis article analysis the adequate protection of the right to life in cases of deaths caused by the use of

lethal force, particularly in the effort of preventing terrorism in Indonesia and Europe. Under the Euro-pean Convention of Human Rights (ECHR), the taken of life shall be done in a condition of “absolutelynecessary” that later shall be proved by an effective and adequate investigation. A failure to investigatedeaths arising from the acts of state officials will amount to a violation of the right to life. Conversely, inIndonesia in the name of war on terror and saving the security of nations, terrorist suspects are frequentlykilled on the process of arrest without having to be brought to a trial. This ironical condition leads to aquestion whether the right to life is protected in Indonesia. By utilising a comparative legal method, thediscussion will be presented in four sections. First, is how the right to life is regulated in Indonesia. Second,is how the right to life is considered in the effort of counter-terrorism in Indonesia. Third, is how the rightto life is secured under the system of ECHR, especially in cases of deaths caused by the use of force. The lastis how to improve the protection of the right to life in Indonesia.

Keywords: the right to life, duty to investigate, terrorism, ECHR, Indonesia.

I. IntroductionIn this era, it is widely believed that there are some common enemies among countries to be

eradicated; one of which is terrorism. Basically, terrorism has many perspectives to be defined.The Secretary of State for the Home Department and the Secretary of State for Northern Ireland(1998) argue that the definition of terrorism is too limited in explaining the meaning of terrorismitself. The narrow definitions, in some cases, are still used and defined in the last 15 years. For

example, based on the Government Regulation In Lieu of the Law of the Republic of IndonesiaNumber 1 Year 2002 on Combating Terrorism, terrorism is defined as criminal actions that makefear, lost people lives and lost public and private belongings. Almost in the same meaning,Section 20 Prevention of Terrorism (Temporary Provisions) Acts (PTA) 1989 emphasises terrorismas an action to make fear on others. Indonesian Official Dictionary (KamusBesarBahasa Indonesia)(2016) has less specific definition on terrorism as a violence in order to make fear by way of

political affairs. Those examples of definition are criticised by some experts since there is almostno differences between ordinary crimes and terrorism. Thus, the Secretary of State for the HomeDepartment and the Secretary of State for Northern Ireland (1998) offers an emphasis that terror-ism is a ‘serious violence’ harming others and states.

As a serious violence, terrorism logically needs special treatment to combat. In Indonesia,Special Detachment 88 (DetasemenKhusus/ Densus 88) was formed in 2002 in order to combat

terrorism in Indonesia. Interestingly, the treatments over terrorism cases in Indonesia have twodifferent consequences. In one side, the role of Densus 88 seems to have a positive impact inorder to combat terrorism. Densus 88 is included as one of the best Detachement in combating

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terrorism around the world (Voice of America, 2016). Voice of America (2016) also notes thatDensus 88 has been preventing more than fifty plans of terrorism action in Indonesia and hasbeen arresting more than a thousand suspected terrorist (Mahar, 2016) since established. One ofinternational recognitions comes from Saudi Arabia to give hajj packages for family members ofDensus 88 personnel who die on duty (Halim, 2017).

On the other side, there are also some negative perspectives on the actions of Densus 88.Jones and Solahudin (2014) question the high number of dead terrorists in raids, although thegroup of terrorist, in some cases, is in a weak condition or low in number. Almost in the sameopinion, HajriyantoThohari, Vice Chairman of the People’s Consultative Assembly(MajelisPermusyawaratan Rakyat / MPR), in BBC (2014) dissagree with the ways of Densus 88 tokill immediately people suspected of being terrorists. Two suspected terrorists in Tulungagung

were fired by personnel of Densus 88, although they were arguably helpless and no resistance(Margianto, 2013). Based on the case, SianeIndriani, a member of National Commission onHuman Rights of Indonesia (hereinafter “Komnas HAM”), argues that Densus 88 has violated thevalues of human rights; in which she describes the action as ‘extra judicial killing’ (Margianto,2013). Surprisingly, many suspected terrorists are fired other than Tulungagung’s case in Indone-sia. Indriani in Listy (2016) reveals that more than a hundred suspected terrorists have been fired

in the weak positions. The controversial case is the death of Siyono, a suspected terrorist inCentral Java, because the cause of the death is unclear. Densus 88 explains that Siyono is killedbecause he resists to be arrested and tries to attack some officers (Artharini, 2016a). However,some organisations, such as Muhammadiyah(one of Islamic organisations in Indonesia) and KomnasHAM believe that based on the autopsy, there is no indication that Siyono’s death is because ofhis resistance (Artharini, 2016b). Furthermore, Chairman of Muhammadiyah for Legal Affairs,Human Rights and Public Policy in Artharini (2016b) believes that Densus 88 seems to have no

intention to be transparent unpacking terrorism cases by the death of Siyono. Interestingly, unsat-isfied people on the work of Densus 88 makes a movement by writing a petition to dismissDensus 88 (Awal, 2016).

The treatment for suspected terrorist by Densus 88 has two consequences. First, vicious circleon terrorism cases will be happened continuously, especially to revenge Densus 88 (Jones andSolahudin, 2014). Densus 88 needs to be transparent handling terrorism cases in order to build

trust to the people. Killing suspected terrorists, in some cases, will close the opportunity to solvethe root problem of the cases. Thus, the death cases of suspected terrorists on the basis ofcounter-terrorism agenda has to be accountable. Second, by killing the suspected terrorists, Densus88 seems to violate human rights, especially right to life.Based on these factual reasons, thisarticle will analyse the adequate protection of the right to life in cases of deaths caused by the useof lethal force, particularly in the effort of preventing terrorism in Indonesia and Europe. The

reason behind choosing European Human Rights System as a comparison to Indonesia is becauseit introduces transparency by imposing a duty to investigate as a procedural limb of the right tolife (Listiningrum, 2017). The legitimacy of the taken of life by the authorities has to be proven bya rigorous investigation. A member state of the European Convention on Human Rights (herein-after “ECHR”) can be considered as breaking its obligation under the Convention when it fails toimplement the procedural requirement of the right to life.

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II. Discussion

A. Laws Related to the Right to Life inIndonesiaIn Indonesia, the right to life is one of fundamental rights guaranteed by the Constitution

(Undang-UndangDasar Negara Republik Indonesia Tahun 1945) and the Human Rights Act of1999 (Act No 39 Year 1999). The right is also one of civil and political rights enumerated by theInternational Covenant on Civil and Political Rights (hereinafter “ICCPR”), which has been accededby Indonesia on 23 February 2006 (United Nations Office of the High Commissioner of HumanRights, n.d.).

Within the Indonesian Constitution, the right to life was not included as one of enumeratedrights until the second amendment of the Constitution in 2000. The inclusion of the right to lifeand other list of rights as a separate chapter of rights (chapter XA) into the amended Constitutionwere gained as a consequence of the wave of reformation after experiencing two decade ofunstable democracy during the presidency of Soekarno and three decade of authoritarian regimeduring the presidency of Soeharto.

Prior to the current or amended Constitution, Indonesia has experienced three changes ofconstitution. The first is called as the old Constitution of 1945 (Undang-UndangDasar 18 Agustus1945), the second is named as the RIS Constitution (KonstitusiRepublik IndonesiaSerikat), and thethird is known as the Temporary Constitution of 1950 (Undang-UndangDasarSementara 1950).These three previous constitutions did not enumerate the right to life as one of protected rights.During the creation of the old Constitution of 1945, there was a sharp debate of universalism

versus particularism concept of human rights among the creator of the Constitution (Kusuma,2004). There was a fear of individualism or liberalism when a number of rights are listed withinConstitution. Soekarno as the opponent of rights reveals that the inclusion of the rights of citizensor now called as human rights (droits de I’homme et du citoyen) to the Constitution is contraryto the spirit of mutual cooperation (gotongroyong) of the nation. Mohammad Hatta as the pro-ponent of the rights agreed to Soekarno’s opinion for apart and stated that he also opposed theidea of individualism, but embraced the importance of the recognition of rights to be listed in the

Constitution in order to avoid tyranny and despotism. That is why finally, some civil, political,social, and economic rights, such as freedom of religion (article 29 paragraph 2), equality beforethe law (article 27 paragraph 1), freedom of thought (article 28), freedom of assembly (article28), right to education (article 31 paragraph 1), right to a decent work and an adequate livelihood(article 27 paragraph 2) were enumerated as a result of agreement between the two camps(Manan, 2012). Those rights were not regulated in a particular chapter of rights, but spread into

the articles.The right to life was first became known in Indonesia since the enactment of the Human

Rights Act of 1999. In the article 4, the Act asserts the non-derogable character of the right to lifetogether with freedom from torture; the right to personal freedom, thought, and conscience;freedom of religion; freedom from slavery; equality before the law; and the right not to beprosecuted based on a retroactive law. In the article 9, the Act explains the scope of the right to

life, including a right to preserve and improve the quality of life, a right to have a peaceful life,and a right to an appropriate and healthy environment. As a duty barer, the state has positiveobligations to respect, protect, fulfill and enforce the right to life. Not only because the right tolife is guaranteed by the Human Rights Act of 1999 and the Constitution, but also because theright to life is promised by other international treaties that has been ratified or acceded by Indone-sia, for instance the ICCPR. This requirement of positive obligations is emphasised by article 71 of


the Act. Moreover, in the article 72, the state is required to take effective steps in ensuring theimplementation of the rights, including legislative, political, economic, social, cultural and otherstype of measures.

Although having a great pledge of human rights protection, the Human Rights Act of 1999actually leaves a loophole of enforcement mechanism. The provision of remedies or access to

justice only applies to the violation of gross violation of human rights, such as genocide and crimeagainst humanity (see article 104 paragraph 1 of the Human Rights Act of 1999 and article 7-9 ofAct No 26 Year 2000 on Human Rights Court). There is no judicial mechanism or provision ofaccess to justice for the violation of other rights listed in the Human Rights Act of 1999, involvingthe right to life.

Actually, Indonesia has an obligation to provide remedies for the violation of civil and political

rights enumerated in the ICCPR (article 2 paragraph 3 of the ICCPR). Nevertheless, the obligationhas not been done thoroughly. It is true that ICCPR does not set uniformity to the personificationof remedies or access to justice under article 2 paragraph 3 (Listiningrum and Bachtiar, 2017). Astate has a wide margin of appreciation to determine the domestic authorities in charge whetherconducted by a court of law, legislative or executive. Nevertheless, if the given remedy is personi-fied by an investigation of the alleged violations, that investigation should satisfy the requirement

of effectiveness and conducted by independent and impartial bodies (General Comment No 31 ofthe ICCPR: The nature of the general legal obligation imposed on States Parties to the Covenant,paragraph 15).

Article 89 paragraph 3b of the Human Rights Act of 1999 gives a mandate to Komnas HAMfor conducting investigation for any suspected human rights violation. Nevertheless, KomnasHAM has no mandate to file the case to the court. The result of investigation by Komnas HAMwill only be given to the government or parliament, but there is no guarantee of follow up.

Therefore, Komnas HAM investigation could not be considered asan effective remedy to thevictims of human rights violations. Moreover, as most of civil and political rights listed in theICCPR are also enumerated by the Constitution, the citizen of Indonesia can file a judicial reviewto the Constitutional Court if any provision of an act that has been enacted by the parliamentpotentially violates the rights. Nevertheless, there is no clear answer for remedies of human rightsviolation if it is conducted by the actions of state agents or non-state actors. In the absence of

national mechanism, the victims of human rights violation could also not file an individual com-plaint to United Nations Human Rights Committee because Indonesia has not ratified or accededthe Optional Protocol to the ICCPR. The only action that can be done is through universal periodicreview, but the effectiveness of the process remains uncertain (see Abebe, 2009; Smith, 2011;McMahon and Ascherio, 2012; and Dominguez-Redondo, 2012).

B. The Right to Life in the Effort of Terrorism Prevention in IndonesiaThere is a fundamental problem that impedes the protection of to the right to life in Indonesia,

in particular in the process of counter-terrorism. As explained in the introduction that in its terror-

ism prevention action, the state agents called Densus 88 has killed a high number of terroristsuspects in the process of arrest of which some are not in the acts of resistance. Therefore, thelegitimacy of the taken of life by Densus 88 as the agents of state should be questioned.

There should be a proof of killing validity whether it was done in a necessary condition or not.If the agents of state arbitrarily killed a terrorist suspect, the acts can be considered as a violationof the right to life under article 4 of the Human Rights Act of 1999. Even, article 9 actually


stresses the non-derogative character of the right to life that no taken of life is permitted in anycondition. Ironically, there is no a clear mechanism of finding remedies or access to justice if theright is violated.

The suspicious killing of terrorist suspects has never been investigated properly, for instance inthe case of Siyono. He was a suspected terrorist that was killed in the process of arrest by Densus

88. Later, it was recognized that the arrest of Siyono was not accompanied by a proper warrant.Ironically, this case was never neing investigated properly and the Police claimed that the assassi-nation of Siyono was necessary in order to tackle his resistance. Knowing irregularities, Siyono’sfamily accompanied by civil society called as Muhammadiyah started an independent investiga-tion by conducting autopsy to the dead body of Siyono. The doctor observation resulted in anastonishing fact that Siyono was not killed because of his resistance actions. Nevertheless, the

Police object the doctor observation because it was not conducted within a formal police investi-gation and avoid providing a further investigation as well as explanation. Therefore, the legitimacyof the taken of life by Densus 88 was never confirmed.

The Terrorism Act of 2003 (Act No 15 Year 2003 on the Determination of Government Regu-lation in Lieu of Law No 1 Year 2002 on Combating Crime of Terrorism, Becoming an Act) doesnot specify a certain requirement of prosecution. The provision of arrest is explained by a police

chief regulation (Police Chief Regulation No 23 Year 2011 on the Procedure of Prosecution ofTerrorist Suspects). The regulation specifies that the process of arrest shall be done in the principleof legality, proportionality, integrality, necessity, and accountability. Although mentioning therequirement of accountability, the regulation remains silent on the issue of mechanism, such ashow to prove the accountability and the legality of the actions.

To the present, there is little efforts can be taken by the deceased family of the terroristsuspect. Sometimes they can rely to an internal mechanism of Police, but this process is lack of

transparency and public scrutiny. They can also file a civil claim of tort to the court, but they haveto prove the requirements of fault and person in charge (see article 1365 and 1370 of Civil LawProcedures). Due to the secrecy of the Police operation, proving the elements of fault and personin charge is not easy.

C. Procedural Obligation of the Right to Life under the System of ECHRThe European Court of Human Rights (hereinafter “ECtHR”) puts a high standard of protection

to the right to life. This due to the fact that article 2 of the ECHR requires state to not deprivesomeone’s life unless in a condition of “absolutely necessary”. The taken of life by the agents of

state shall be investigated effectively by an independent investigator in order to ensure the legiti-mate aims of the authorities (see McCann and Others v. the United Kingdom; Kaya v. Turkey; Ergiv. Turkey; Çakici v. Turkey; Tanrikulu v. Turkey; McKerr v. the United Kingdom; Hugh Jordan v. theUnited Kingdom; Kelly and Others v. the United Kingdom; Shanaghan v. the United Kingdom;Anguelova v. Bulgaria; UlkuEkinci v. Turkey; Hackett v. the United Kingdom; Nachova and Othersv. Bulgaria; Ramsahai v. the Netherlands; Al-Skeni v. the United Kingdom). Maintaining transpar-

ency and accountability to the public is important, not only for ensuring the adequate protectionof the right to life, but also for assuring that the state does not abuse its power.

State as a duty bearer has a positive obligation to ensure the protection of the rights listed inthe ECHR (article 1 of the ECHR). This positive obligation if read in conjunction with state obliga-tion to protect the right to life under article 2 results in a procedural obligation of state to effec-tively investigate the cases of deaths conducted by its agents. A failure to perform this procedural


obligation will amount to a violation of the right to life (Kaya v. Turkey).There four element of an effective investigation that shall be satisfied in order to satisfy the

procedural limb of the right to life. The ECtHR applies these elements as a test of effectiveinvestigations to unravel the legitimacy of the taken of life in cases of homicide arising from theacts of state agents by the use of lethal force. First, is the requirement of independency, which

can be proved by the absence of hierarchical or institutional connection between the investigatorsand perpetrators. Second, is the requirement of proper capacities to unpack the case and punishthe offenders. Third, is the element of a prompt and reasonable expedition to initiate the investi-gation that there should not be any delay causing the ineffectiveness of the investigation. Fourth,is the requirement of deceased family involvement in the inquest proceedings (Listiningrum,2017).

D. Introducing a Better Protection to the Right to Life in IndonesiaSolving the problem of the right to life is the same with unraveling the dilemmas of human

rights protection as well as enforcement in Indonesia. As explained in previous discussions thatthe Human Rights Act of 1999 is lack of enforcement mechanism. A special human rights courtis only addressed for gross violation of human rights. In this regards, it seems the government putonly a concern on that type of violation, but forgetting the enforcement of other rights. TheHuman Rights Act of 1999 only specifies gross violation of human rights, such as genocide andcrimes against humanity as enforceable rights and puts no status on other listed rights. Therefore,

a revision of the Human Rights Act of 1999 is needed in order to clarify the loophole problem ofenforcement mechanism.

Regarding to Indonesia’s commitment as the member state of the ICCPR, it is important tocategorised civil and political rights as a group of enforceable rights recalling article 2 paragrapgh3 of the ICCPR. This categorisation can be used a fine line between civil and political rights thatrequires immediate implementation; and economic, social, and cultural rights that the realisationcould be done progressively (General Comment No 3 of the International Covenant on Economic,

Social and Cultural Rights: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Cov-enant); Courtis, 2008; Eide, 2011).

Another substantial problem is there is no clear provision of authorities in charge to prosecutehuman rights violation. It is true that Komnas HAM is mandated to investigate any cases ofhuman rights violations, yet they do not have an authority to bring the case before the court. Theprosecutorial powers is important to be given to Komnas HAM in order to seriously resolve and

settle the case of human rights violation in Indonesia. Compare to the system of ECHR, theinvestigation conducted by Komnas HAM only satisfies two elements of an effective investiga-tion, which are the requirements of impartiality and deceased family or victims involvement. Asmandated by the Human Rights Act of 1999 that Komnas HAM is an independent auxiliary bodya part from executive or Police troops. It consists of 35 academics, politicians, lawyers and/orhuman rights activists selected by the Parliament (DewanPerwakilan Rakyat Republik Indonesia)

(article 83 and 84 of the Human Rights Act of 1999). In the investigation process, Komnas HAMalso involves and receives complaints as well as information from public in order to find factsregarding to alleged human rights violations. Hence, the involvement of public in the works ofKomnas HAM is not doubtful. However, Komnas HAM has no power to prosecute and punish theoffenders. That is why most of investigated cases are never settled to the court and victims do notget any remedies for the violation they have suffered.


III. Conclusion and SuggestionThe right to life is one of fundamental rights guaranteed by the Constitution of Indonesia and

the Human Rights Act of 1999. The right is also protected by one of international human rightstreaties acceded by Indonesia, the ICCPR. Nevertheless, the right to life is actually has not beenprotected thoroughly in this country, especially when dealing with counter-terrorism. A high

number of terrorist suspects are frequently killed by the agents of state suspiciously in the processof arrest. Ironically, these excessive actions have never been investigated properly. This is due tothe lack of human rights enforcement mechanism.

As a comparison, the system of ECHR put a high concern on the violation of the right to life.Any cases of the taken of life conducted by the agents of state, even in the effort of terrorismprevention, shall be investigated properly by independent bodies. The investigation also has to be

able to reveal the facts on the ground leading to a capacity of prosecution if the offenders arefound to be guilty. During this investigation, there shall not be any delay that can cause ineffec-tiveness to the investigation. Moreover, the investigation also has to be done transparently.

Learning from the human rights system of ECHR, some improvements have to be done inorder to introduce a better protection to the right to life in Indonesia. As a suggestion, the revisionof the Human Rights Act of 1999 is urgently needed in order to unravel several human rights

enforcement problems. In this regards, two main points that shall be detailed in order to improvethe adequate protection to the right to life are (1) the emphasis of the enforceability nature of civiland political rights; and (2) the introduction of litigating or prosecutorial function to KomnasHAM.

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