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Opinion

30 Jun 2015

Author:
Febi Yonesta, director, LBH Jakarta (Indonesia)

Through strategic litigation, there is a chance to impact the law or create a change in policy

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Business & Human Rights Resource Centre

Febi Yonesta is the Director of LBH Jakarta (Jakarta Legal Aid Institute) in Indonesia – an NGO founded in 1970 that provides legal aid to vulnerable groups on cases including fair trials and labour rights.

What are the main legal remedies or tools available to you in seeking to hold companies accountable for human rights abuses?  What are the biggest gaps?

As a legal aid organization, we seek remedy through litigation and non-judicial remedies. Litigation is always our last resort, after all non-judicial remedies have been exhausted.  

However, litigation is not a last resort when we think strategic litigation is necessary and there is a chance to impact the law or create a change in policy.

We have chosen to follow this strategy not only because non-judicial remedies tend to be more efficient and effective, but also because litigation is more time consuming, expensive, and corrupt.  The first and foremost tool we use is mediation, where we mediate a violation or dispute between company and victims to seek effective remedies.  When this does not work, we file a complaint on behalf of the victims with an independent state body, such as the National Human Rights Institution or another related agency which can further mediation or push the companies to provide compensation.

What challenges (legal or practical) do you face in seeking to hold companies legally accountable in Indonesia?  Do you think there has been any progress in this area in your country?

The main challenges come from the law enforcement agency and the judiciary. Weak law enforcement prevents the agency and the judiciary from holding companies accountable.  This happens when there is overlapping legislation and a corrupt bureaucracy or judiciary takes advantage of the existing loopholes.

My organization deals with many cases related to labour and deals directly with companies.  We have sufficient protection and guarantee of labour rights.  If companies violate any labour rights legislation, the law enforcement agency has the authority to impose any sanction according to the law.  Unfortunately, regardless of this legal guarantee for labour rights, the persistent problem is that the law enforcement agency claims they lack adequate budget and capacity, only as an excuse.  Apart from that, there is also alleged collusion between companies and law enforcement officials.

The law enforcement agency prefers to look into the less stringent regulations rather than the ones offering greater protection under the law.  This occurs not only in the labour field, but also in the area of land law and in regulations for extractive industries.  Disharmonised legislation is becoming a loophole used and abused by companies and law enforcement agencies to avoid their obligation to respect human rights.

Could you elaborate on what you think could help improve the situation?

The main point of the Indonesian effort, to fulfil human rights related to business practices, is to fight to eradicate collusion and corruption that may influence the objectivity of law enforcement agencies to uphold the law and protect the rights of people.

In the Indonesian legal system, the only trusted state institution authorised to eradicate corruption is now facing huge difficulties with the police department.  Police are the main resource used by companies to protect their business operations from any disturbance, either internal (from their workforce) or external.  This practice can lead to collusion and corruption.  The Commission mandated to end corruption is now looking at these issues within the police force.  This led to backlash from the police force on any attempt to prevent corrupt practices.

Another example of a case exposed by this Commission is that of a judge caught in a bribery scandal. The judge was caught while being bribed by the managers of a company over a conflict involving its workforce.

What consequences or repercussions have you encountered as a result of your advocacy for human rights?

I have been threatened with the criminalisation of my work, physically assaulted, and condemned by society and social media bullies.

Defamation is a common weapon used by anyone who wants to silence us.

There was a case concerning the freedom of trade unions and their struggle for their rights in a state-owned sea port company.  We held a press conference to expose the corrupt practices conducted by the director of the enterprise.  At the press conference, one of the LBH lawyers and a trade union representative, were sent to the police station because of a defamatory statement.  Then, we were summoned and explained that this is not an issue that is in the police domain.  After this, there were no further summons or investigations.

Most of the cases of defamation are not a civil lawsuit but a criminal lawsuit because it is a crime in our criminal code.  Most of the cases are targeted not only towards the lawyers, but also towards our clients, community leaders, union leaders, and anyone who wants to expose the truth about a company.

All these threats divert our main goals and our main advocacy.  For instance, the case of the sea port company had chilling effect on our clients.  In spite of these threats, as long as our clients want to keep on fighting, we will be there.

Do you ever collaborate with lawyers from other countries?  If so, how?

Yes, we do. In our lawsuit against water privatisation, we are collaborating with lawyers, academics and international experts.  In other human rights cases, such as those dealing with the death penalty, migrant workers, and refugees, we also collaborate with lawyers from other countries, as experts, mentors, researchers, or even legal representation when the scope of the cases either crosses borders or has international impact.

We have regional collaboration with South East Asian lawyers.  We previously collaborated with Malaysian lawyers (with the Women Crisis Centre regarding migration law where Indonesian lawyers were having difficulties with the Malaysian legal system), and Singaporean lawyers about migration (with an NGO called Home regarding the protection of migrant workers and victims of human trafficking).  A lawyer from the Philippines also contacted us to help stop the execution of a woman.  We staged a protest in front of the presidential palace and it worked—the execution was stopped.

We also have collaborations for lawsuits, specifically for constitutional review in Indonesian court or any major or class action lawsuits.  It has become common practice to involve international experts to speak about certain issues, and share practices from other countries before our courts.  For instance, we filed a Constitutional review against blasphemy law in Indonesian courts and we invited a US law Professor to speak in front of the presiding judge by teleconference.  In our citizen lawsuit against water privatisation, we invited two experts to speak before the district court about water privatisation policy in other countries and the negative impact of water privatisation.  This information was valuable and was significant for the judge to make a decision about our lawsuit.  We won the case, but an appeal was filed.

What can the international community do to help?

There are some things the international community can do to help:

(1) Funding support: Considering the financial challenges in human rights advocacy, significant resources and funding would be the most important help we could get from the international community to ensure continuous advocacy.

(2) Expertise: The experience and knowledge of lawyers in other countries may help us in advocating better resolutions for human rights issues.

(3) Campaign: Amplifying the voice of victims and advocacy efforts to the international community would also be significant in our advocacy.  In our lawsuit against water privatisation, Public Service International in the Netherlands offered help to campaign so the international community would know what was happening with our advocacy efforts in Indonesia.  We do not have the capacity to make an English version of our advocacy unlike our colleagues from Singapore, Malaysia, and the Philippines who issue reports in English.  That is why we have difficulties reaching the international community easily.  Our daily work in Indonesia takes up a lot of resources and we cannot cover international advocacy unless an organization helps us to make a report in English to submit to the Human Rights Council or any UN human rights body.  It is not often that we have the opportunity to speak in front of the international community.

What would be your main message to the business community regarding accountability for human rights abuses?

Compliance to universal human rights standards and providing effective grievance mechanism for any adverse impact of business operations would benefit not only victims, but the business entity as well. 

The company will lose a lot of money during a dispute between victims and its business entity.  In Indonesia, business entities prefer to pay more money to the police force, to the judiciary, and other parties rather than making this money available to remedy the alleged human rights abuses affecting the victims.  I believe that if a business would have a genuine consultation with the victims to identify the root cause of the problem, it would benefit both parties.  In most cases of human rights abuses caused by companies, the loss the victims face is huge and cannot be recovered without serious efforts from the government or the business entity.  In every case, we always try mediation between victims and companies as a first option.  In most cases, companies, with less understanding of the benefit of mediation, will see our client as someone they need to keep on fighting until the last breath.  So they will face our client in the court. 

Often, the victim will not have the strength to face a long court process and the prolonged process will cause the business to pay more.