I. Introduction
The belief that children have the same rights as adults -civil and political, social, cultural and economic- was expressed as the Convention on the Rights of the Child (hereinafter the CRC). The CRC offers an ideal context where the relationship between diverse cultural values and ‘oft-stated aspiration’ of the international society is examined to accomplish universal human rights standards.[2] Though it is originated from Western political philosophy, ‘human rights represent a cross-cultural consensus on fundamental human values’. [3]
Being ratified by most states across regions after its adoption by the United Nations General Assembly and entering into international law on 02 September 1990, the CRC is the first binding international human rights instrument incorporating in the same text social, cultural, economic civil and political rights. Due to the specific characteristic compared with human rights (of adults) in general, children’s rights become very significant. Nowadays, Ninety-six percent of the world’s children live in States including Indonesia that have ratified the CRC and are thus legally obligated to protect children’s rights. In fact, those states have different political, economic and social contexts. Ratification of the CRC reflects a global commitment toward the principle of the rights of the child. On 5 September1990, Indonesia ratified the CRC through Presidential Decree No. 36/1990 (Keppres 36/1990). Consequently, it has a domestic legal authority equivalent to a Presidential Decree. The provisions in the CRC for Indonesia are expected to be an incentive for the government to protect and fulfill the rights of children.
Political reform in Indonesia towards a more democratic state in 1998, along with awareness on the significance of respecting human rights, has resulted in a more conducive situation to recognize, respect and fulfill human rights.[4] Legal recognition of human rights including rights of the child is realized through Law No.39/1999 concerning Human Rights. Meanwhile, the constitution reform from 1999 to 2002, amending the 1945 Constitution, to some extent is directed to uphold human rights values as a prerequisite of the democratic state. As a result, the amendment of the constitution apparently recognizes the human rights provisions in a specific chapter.[5] Moreover, the right of every child to live, to grow and develop, as well as the right to be protected from violence and discrimination is constitutionally guaranteed in Article 28B of the Constitution. Since then, all related-child laws are directed to be in line with the constitution as well as the CRC, due to no constitutional barrier to implement the CRC.
Notwithstanding the discrepancy between the legislation reform and the actual effect toward children’s problems, the national legislations concerning children in Indonesia has adopted the principles and the provisions in the CRC. Indonesia whishes for a comprehensive protection for children’s rights as maintained in the CRC. However, this has been attempted through a gradual process and by having an ‘Indonesian’ interpretation of particular provisions of the CRC. Different legal and cultural values have led to a typical and contextual approach to the CRC. This paper will critically evaluate the recognition of children’s rights as stipulated in the emphatic provisions: the ratification of the CRC, the 1945 Constitution, Law No.39/1999 on Human Rights, and Law No.23/2002 on Child Protection..
Of the 225,500,000 total population of Indonesia in mid 2006, approximately 29 percent are children under 15 years old.[6] In fact, problems regarding children in Indonesia are extremely complicated and intermingled. Despite the fact that the nature of the state geographically is diverse, comprising of over 17,000 islands with various cultures and traditions in 33 provinces, it also encompasses miscellaneous social economic problems within each region. The internal armed conflicts, terrorism, natural disasters and political tensions are other realities faced by Indonesia which undoubtedly affect the children in all aspects of their daily lives. I believe that ten thousand words will never be an adequate amount to describe the real situation of Indonesian children by words. In general, children’s problems particularly the rights of children remain a serious problem, though there are improvements in particular areas.
The following discussion presents only several fragments of the whole story of Indonesian children feature. This will not represent the entire problems of violation toward children’s rights. However, it is part of the reality. In 2003, As identified by the National Commission for Child Protection (KOMNAS PA) the most pressing problems related to the country's youth are child labor, child trafficking, child prostitution, street children, children in conflict areas, and undernourished children.[7]In addition, the juvenile justice system is another sensitive issue nowadays.
II. Recognition of the Rights of the Child in Indonesian Legislations.
A. The Ratification on the Convention of the Rights of the Child
Despite the fact of having numerous severe problems regarding children, principally, Indonesia through the 1945 Constitution has guaranteed the fundamental rights of the child irrespective of their sex, ethnicity or race. The Constitution prescribes those rights to be implemented by national laws and regulations.[8] Although did not make any formal reservation to the provisions of the CRC upon ratification, Indonesia issued a declaration that is in essence a reservation, and generally viewed as such.[9] The declaration includes a general comment against any obligations outside the limits of Indonesia’s Constitution or any rights beyond those guaranteed under the Constitution. Additionally, the declaration specifically states that Articles 1, 14, 16, 19, 21, 22 and 29 of the CRC are applicable only to the extent that they conform to the Constitution[10].
On the status of reservation to the CRC provisions, in fact, the declaration has generated criticism both nationally and internationally. Because in essence, it was seen as a reservation, but the third (and also the second) paragraphs of the declaration is frequently criticized as ‘a blanket reservation’.[11]The NGO Coalition is of the same opinion that the second paragraph in particular is eventually a ‘sweeping reservation’ that must also be revoked without further delay.[12]Therefore, both the NGO Coalition and the CRC Committee[13] very welcome to the intention of Indonesian government to withdraw the reservation, which has been expressed in the state’s report to the Committee.
Another legal problem regarding the ratification is that instrument of ratification was not an Act by the DPR (legislative), but a Presidential Decree.[14] This method of ratification also has been a source of criticism within national legal system. According to the national hierarchy of laws under Law No.10/2004 concerning the Legislation Making, a Presidential Decree is a lesser instrument, ranked below an Act.[15]Consequently, in addition to have very low status, the CRC is not viable to be used as a formal reference to change or amend the existing laws nor can it be used in drafting any bill.[16]Furthermore, in case of a disagreement between provisions set forth in the CRC and national laws, in application in the court, national laws will prevail.[17]
Additionally, the fact that other major human rights treaties such as CEDAW[18] (ratified in 1984), CAT[19] (ratified in 1998), ICERD[20] (ratified in 1999), ILO Conventions 138 and 182 (ratified in 1999 and 2000 respectively) are ratified by an act, was considered as a discrimination to the CRC. Moreover, the ratification of the CRC Optional Protocols[21] using an act, leads to ‘a contradiction’ within the national jurisdiction.
At that time the government argued that the use of the presidential decree to ratify the CRC was simply to speedy the execution of the treaty, due to the use of an act will require longer time as it needs the parliament’s approval. With regard to this explanation, the NGO coalition believes that it was evidently invalid argument for several reasons. Firstly, by the time of the ratification (1990), the President was extraordinarily dominant in political system. It would be possible for the Parliament to refuse the proposed act. Secondly, In terms of an extensive reservation, it is a serious enquiry on the government’s good intention to adhere to the CRC provisions since there is no practical sign of the commitment to implement such provision in significant steps until the fall of this regime in 1998.[22]
As demanded by the international community, the NGOs and the society, the government then intend to reconsider the reservation. An understanding that the reserved articles are probably applicable, as long as supported by enforceable regulations leads to the possibility to accept them. In the report to the CRC committee, Indonesia also shows willingness to up-grade the instrument of ratification into an Act. However, the fact that the government has taken no step to realize the intention is another concern.
Moreover the amended Constitution, in particular Article 28B (2) concerning the recognition of the rights of the child[23] and Article 28I (5) clearly stated that to uphold and protect such rights, the implementation of those rights shall be further guaranteed, regulated and set forth in laws and regulations. This also supports that the reservation is no longer appropriate. Meanwhile, in practice the CRC has been used as a framework for introducing child-related laws, such as the Child Protection Act of 2002.
The previous discussion demonstrates that in theory, the government of Indonesia has good awareness and understanding about the significance of the child as the future of the nation. Ever since the ratification of the CRC, there is on going legislation reform by reviewing child-related laws to be in line with the CRC. A comprehensive review of national legislation will considerably take an extensive endeavour as well as amount of time. The government has taken major measures in accordance with the state’s obligation under the CRC, namely adherence to international instruments, adoption new child-related laws, and the ongoing drafting process of the bills.[24]
Indonesia also has signed several international instruments related to the rights of the child such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Supplementing to the UN Transnational Organized Crime (2000), the two CRC optional protocols (2001) and the Yokohama Commitment (2001). Furthermore, in addition to the amended Constitution, the Law on Human Rights (Law No.39/1999) and the Law on Child Protection (Law No.23/2002) are the most advance children’s rights-related laws.[25]
Following up of the signing of the international instruments, the government moreover adopted three National Plans of Action for children on combating sexual exploitation, trafficking and child labour. These National plans cover all areas and provisions of the Conventions. The Ministry of Women Empowerment was authorized to coordinate the implementation of the Convention as well as the National Plans. These plans are expected to be integrated into programmes at the provincial and district levels.[26]The government is also in progress drafting the bills on anti trafficking and civil registration. [27]
B. The Constitution
In terms of legislation reform, this is initiated by recognizing the rights of the child in the Constitution. provisions in the Constitution’s Bill of Rights (Chapter XA, Articles 28A to 28J) comprises rights set forth in the CRC and are applicable to all persons, including children, but Article 28B (2) is the only provision specific to children. The provision covers some, but not all, of the fundamental rights set forth in the CRC, such as the right to life and development (Art.6 of the CRC); the right against discrimination (Art.3 of the CRC); and the right to be protected from violence (Art.19 of the CRC).
C. The Human Rights Act
The 1999 Human Rights Act develops the concept of child’s rights in Indonesian legislation. Comprising specific 15 articles of child rights in Chapter X, the Act recognizes the rights of the child are fundamental human rights under the law, protecting such rights since the child in the conception.[28]The child has a right to be protected by the parents, the community and the State.[29] Further, it expresses every child’s right to live, grow, develop, and to have a name and citizenship[30].
Other articles express basic rights, such as the rights to education and health services, to receive information, to express one’s self, to play and recreate, and to exercise one’s religion.[31]In terms of parental responsibility, several articles state the rights of the child to know the parents and not to be separated from them, unless for the child’s best interest.[32]Moreover, in cases of child abuse, mistreatment and violence (physically, mentally or sexually), parents’ or guardian’s custody shall be removed and they should be punished by ‘double’.[33]
Separate articles also address the rights of protection from violence and exploitation such as not to be involved in the armed conflict; from economic exploitation endangering child’s health, from sexual exploitation including trafficking, harassment and drug addiction; from torture and inhuman treatment.[34]While the last article of the chapter articulates the juvenile justice system which is sensitive to the child. Child’s rights should be respected though he/she is in conflict with the law, particularly criminal law. In addition, capital punishment should not be imposed, even on the child convicted severe crimes.[35]
The Act authorizes Human Rights Commission to conduct initial investigations of reported violations under the Act[36] and provide findings of such violations to the public prosecutor for further criminal investigation. However, the Act does not specify sanctions for those violations; therefore for criminal sanction, it should refer to the relevant criminal laws. For severe human rights infringement, the Act commands forming of the human rights court, within no less than 4 years from the Act come into operation.[37]
The recognition of children’s rights in this law is generally in concord with the spirit of the CRC. The specific articles for child and several articles on basic rights for everyone (including child) cover several rights set forth in the CRC such as Articles 8, 13, 14, 15, 17 and 37. However, the CRC Committee addresses several notes. First, the CRC Committee indicates, there is limitation and restriction of freedom of expression, identified in Articles 70, 73 and 74 of the Human Rights Act.[38]This limitation is basically intended to avoid the real harm in society regarding preservation of specific values, for example, considering the diversity of culture, religion and ethnicity. The importance of harmonious is more favor than such freedom. However, limitation should be under justifiable consideration.
Second, with regard to children, the Committee recommended that freedom to associate (Art.15 of the CRC) could be enjoyed by children as well. In terms of freedom of thought, conscience and religion (Art.14 of the CRC), the Law does not explicitly recognize the rights of children from indigenous groups and the impossibility of legal recognition for non-believers. In addition, the lack of specific recognition to protection of privacy for children is another concern.[39] The Committee suggested undertaking special study and analysis concerning this issue. Regarding limitation of the right to access to appropriate information (Art.17 of the CRC), that it should be in accordance with moral and ethical values; the Committee believed that a comparative study of the situation in other countries is thought to be necessary for a comprehensive review. [40]
Relating to the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, (Art.37, para (a) of the CRC), the stipulation of this right[41] remains less than effective in practice. For example for cases of child offender, the Juvenile Court Act prevails. Hence, a review of the compatibility of both acts is necessary. While for child abuse case, penal provisions for violation of this right are still inadequate.[42]
D. The Child Protection Act
Law No.23/2002 on Child Protection is considered a step forward for child’s rights in Indonesia. This is partly, because in judicial practice in Indonesia, provisions in international conventions are normally not directly applied, therefore the CRC provisions might be applied first by “integrating or translating” the provisions into relevant national legislation. The low level of a presidential decree as an instrument of the ratification among other national legislations encouraged the government to have a more comprehensive legal instrument for children’s rights recognition. This law basically is intended to be an adequate foundation for that.
The Law acknowledges the rights of the child as human rights stipulated in the Constitution as well as in the CRC. Philosophically, the Law emphasizes responsibility of all parties: parents, family, community, the government and the state to fulfil the protection of the rights of the child.[43]In addition the provisions in the CRC are predominantly adopted in this Law.
The Act comprises five main sections: a. Bill of Rights for children;[44] b. the obligations of the State, the community and parents in protecting children, and the implementation of the protection;[45] c. chapters concerning the status of children, guardianship, custody, and adoption;[46] d. establishment of a commission for the protection of Indonesian children;[47] and e. criminal provisions section for offences against children.[48]
The Bill of Rights introduces many of the CRC’s principles into domestic law and considerably expands the number of recognised rights and principles for children. Most importantly, the Act defines a child as any person below the age of 18 years, in line with the CRC.[49]This applies equally to boys and girls, regardless of their marital status or former marital status. As a basis for protecting children, along with the Pancasila, the national ideology, the Act recognises the principles of non-discrimination, the best interests of the child, the rights to life, continuity of life, and development, and the respect for the opinions of children[50].
Other provisions in the Bill of Rights recognize a child’s right to express his/her views, the right to a name and identity, the right to know one’s parents, the right to education, and the right to be protected from violence and abuse[51]. Separate chapters provide more detailed provisions on identity and birth registration, parental rights, guardianship, adoption, religion, health, education, social development and special protection.
The special protection is provided for children that are: in emergency[52] in conflict with law,[53] belong to minority and isolated groups,[54] victims of economic and/or sexual exploitation[55] and trafficking[56], narcotics and other illicit drugs users, [57] physically and psychologically abused,[58] with disability,[59] and mistreated or abandoned.[60] This Act, therefore, mandates certain measures, such as dissemination of relevant laws, monitoring, sanctions, prevention, care and rehabilitation[61].
Concerning the right to name, identity and nationality (Art.7-8 the CRC), the Act stipulates several important principles on birth registration.[62]The Act states that every child should be given identity from birth and it shall be stated in a birth certificate. Accordingly, birth registration and issuance of a birth certificate is the government’s responsibility not the parents, by creating procedures at the local level.[63] Therefore, the issuance of a birth certificate shall be free of charge.[64]
However, since enactment of the law in late 2002, only Makassar Regency in South Sulawesi Province has issued a local regulation (Perda) providing for free birth registration. The Regency of Solo in Central Java is in the process of enacting a local regulation that will provide for free registration of births within the prescribed two-month period, but late applicants will be subject to an administrative fee.[65]In practice, of the 444 regencies in Indonesia, only 46 regencies have applied ‘free of charge’ birth certification. [66]
More advance than the Juvenile Court Act and the Criminal Code, the Child Protection Act contains several principles consistent with international standards for the special protection of children in conflict with the law. [67] Most importantly, children should receive humane treatment in accordance with their dignity and rights and any sanction imposed must be in their best interests. Any kinds of criminal prosecution such as detention of a child shall only be used as a last recourse.
Further, to prevent stigmatisation, the identity of a child shall not be released to the media. This is also applied for a child of sexual abuse victim. Moreover children involved in criminal judicial proceedings, entitle to legal and other assistance, including counselling. Authorities must provide special infrastructure and facilities for children. Child detainees, deprived of their liberty, must be separated from adults. In addition, authorities must continuously monitor and record the development of all children who are in conflict with the law while children shall have access to information regarding the development of their criminal case.
To enhance the efficacy of the implementation of the child protection, the government established the Indonesian Commission for Child Protection.[68] The task of this independent institution, is ranging from disseminating all provisions in child protection-related legislations, collecting data and information, accommodating people complaints, conducting research and study, monitoring and evaluating the realization of child protection, to submitting a report, input and consideration to the president regarding programs for protecting child.[69]
The substance of the Act however still has weaknesses, particularly on criminal provisions. Firstly, The Act applies several criminal provisions to (forced) child prostitution cases and introduces new offences into the Indonesian criminal law.[70] There are several related articles namely Articles 88,[71] 78,[72] 81[73] and 82[74] regarding criminalizing the sex exploiter of a child with very high penalties for violations. Regrettably, the Act does not stipulate any provisions related to distributing and possessing child pornography.[75]
Under Article 88, the offence of child prostitution might be applied if the three elements are fulfilled: ‘sexually exploits,’ a child’ and ‘his own gain’. The problems are there is no elucidation for interpreting this provision, whether purchasing sexual services from a child considered exploitative. In reality, children under 18 years old who are married or divorced are not identified as a child in Indonesian Law. Additionally it is easy to falsify age on the identity card. Furthermore, the term ‘his own gain’ may be interpreted to include not only economic gain or financial benefit but also personal or sexual satisfaction.[76] Although to some extent also criminalizes child sexual exploitation, Article 78 is limited to intentional acts only and does not cover negligence.[77]
Secondly regarding the provisions on adoption, in fact, the practice of adoption in Indonesia is mostly conducted in an informal manner according to tradition without any legal paperwork. In addition, there is no strict prohibition of commercial adoptions where the natural parents give up their child in exchange for financial compensation.[78]
However, legally there is provision concerning this practice[79] including in this Child Protection Act. Art.39 of the Act sets several criteria for adoptions, for example, adoptions may only be carried out in the best interest of the child; the adoption does not sever the blood relationship between the adopted child and his/her natural parents, adoptive parents must be of the same religion as the child, and inter-country adoptions of Indonesian children may only be permitted as a last resort. The Act contains a criminal offence for adoptions against certain provisions expressed in the law,[80] but only for the actual adoptive parents not intermediaries in the adoption or the natural parent.[81]
Thirdly, although underage marriages are not formally recognized by the State, there are no further provisions to discourage early marriages or criminal sanctions for marriage to an underage child or allowing one’s underage child to marry. Art.26 of the Act states that the family and parents shall be responsible and accountable for preventing underage marriages, but there are no criminal sanctions attached.[82]
Moreover, regarding the appointment of the guardian, the Law only mandates the appointment of a guardian to ‘represent the child to carry out legal acts, both inside and outside court.’[83] The only legal acts specified are economic matters,[84] so it is unlikely that guardians are appointed in protection proceedings. In any case, the law does not specify that the guardian must convey the wishes of the child.[85]
Generally speaking, the efficacy of the implementation of the provisions of the Child rights is dependent on awareness of all parties, particularly the law enforcement apparatus. Therefore, dissemination of the provisions is an important factor. In contrast, there are positive signs that the Child Protection Act is influencing law enforcement. The Act has been and being used to prosecute sex offenders in individual cases around the country, [86] for instance, a sodomy case of a former Australian diplomat.[87]
Despite the fact that there is discrepancy between the fact of child rights and the recognition of such rights in national legislations, from the previous discussion, we can see that Indonesian legislation recognizing such rights is considerably sufficient in quantity. Furthermore, Iskandar Hosein conveys several practical impediments of the implementation of the provisions: a. the low performance of the Indonesian Commission for Child Protection; b. the problematical law enforcement; c. the inharmonious legislations regarding child’s rights; and d. the lack of dissemination of the rights of the child in society.[88]
Another sign of the willingness of the Indonesian government to fully comply with the CRC is the adoption of the principles and provisions of the CRC in several new child rights-related laws.[89] This is an effort to translate the Convention into domestic law, with an adequate position. In other words, though the CRC is legally ratified only by a presidential decree, the spirit, principles and several provisions of the CRC are covered in laws. In fact those legislations construct a framework for enacting or amending other laws and regulations. They are also directly applicable as any other laws. Hence, without any legal or official withdrawal, those reserved articles of the CRC have been applied in Indonesian legislation.
Since the Convention on the Rights of the Child in 2004, Indonesian government has been ‘in an about-face’ to accept seven articles of the CRC. The reservation of those particular provisions has been restudied. At the time of the reservation, the government believed that those seven articles in general did not conform to Indonesian (moral) values.[90] However, the current situation regarding children in Indonesia is strongly correlated to structure, perception, value and norm that generally accepted within the society.[91]As having been discussed, for some factors, this is possible to change. I believe that the impediment is also resulted from the fact that Indonesia realizes its incapability to implement such principles due to social, economic, politic and cultural constraints in addition to legal constraint. These constraints are in fact amalgamated and influencing one another. As a developing country, social-economic resources scarcity is still a dominant factor hampering Indonesia's efforts to develop the well being of children. Consequently, economic, social and political rights for children cannot meet the standard in a short time.
The impediments of the implementation of the CRC in truth are not only found in the legislation level, but profoundly in the application and practical level. Consequently, the recognition of the rights of the child in Indonesia is a continuing struggle. It is an enormous work for parents, family, society, the government, the state, NGOs, and even for international communities.
III. Conclusion
From the discussion above, the contextual and cultural interpretation considerably seems to be a proper approach to implement the spirit of the CRC into national laws. The legal reform on the other hand supports the cultural affirmation to negotiate on several contentious values. As a matter of fact, it is worth to stress that the right to be different is becoming a recognized universal human right as well.[92]
Notwithstanding that there is no legal or official withdrawal of the reservation of the CRC, the Indonesian legislation has gradually reformed towards a comprehensive recognition of the rights of the child in accordance with the spirits and principles of the CRC. The adoption of some principles and provisions of the CRC in the child-related laws, for example the 2002 Child Protection Act is a considerable effort to have an adequate legal framework for protecting children’s rights.
The impediments of the implementation of the CRC in fact are not only found in the legislation level, but profoundly in the application and practical level. Consequently, the recognition of the rights of the child in Indonesia is a continuing struggle. It is an enormous work for parents, family, society, the government, the state, NGOs, and even for international communities.
In the context of Indonesia, the constraints impeding the implementation of the CRC principles in national legislation are primarily caused by legal and cultural restraints. Therefore, the way to interpret the CRC into domestic laws is an appropriate way to avoid superficial recognition of the rights of the child. The legal and cultural factors are considered more important due to its function in reforming other sectors. Moreover, the economic, social and political constraints might be resolved in long-term endeavors. In fact, those constraints are intermingled and influence one another.
The Bibliography
Books
Legislations:
[1] Writer is a Legislative Drafter of The Indonesian Parliament Secretariat General, Melbourne Law School Alumni - University of Melbourne Australia 2007
[2] James R. Himes, ‘Foreword’ in Philip Alston (ed.) The Best Interests of the Child: Reconciling Culture and Human Rights (1994), v.
[3] David Johnson,’ Cultural and Regional Pluralism in the Drafting of the UN Convention on the Rights of the Child, in Michael Freeman and Philip Veerman,(eds.) The Ideologies of Children’s Rights (1992), 96-114,112
[4] Committee on the Rights of the Child, ‘Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Indonesia’ Second Periodic Report, (7 July 2003), CRC/C/65/Add.23, 4.
[5] Chapter XA, Articles 28A – 28J of the 1945 Constitution of the Republic Indonesia consists of 26 provisions regarding the recognition of human rights/ Bill of Rights.
[6] According to Population Reference Bureau, See http://www.prb.org/Countries/Indonesia.aspx
[7] ‘Country Reports on Human Rights Practices: Indonesia -2004’, (Released by the Bureau of Democracy, Human Rights, and Labor, February 28, 2005)
[8] As declared in the declaration on ratifying the Convention of the Rights of the Child
[9] The complete version of the declaration is as follows:
The 1945 Constitution of the Republic of Indonesia guarantees the fundamental rights of the child irrespective of its sex, ethnic origin or race. The Constitution prescribes those rights to be implemented by national laws and regulations.
The ratification of the Convention on the Rights of the Child by the Republic of Indonesia does not imply the acceptance of obligations going beyond the constitutional limits nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution.
With reference to the provisions of articles 1, 14, 16, 19, 21, 22 and 29 of the Convention, the Government of the Republic of Indonesia declares that it will apply these articles in conformity with its Constitution.
[10] The definition of the child (Art. 1); freedom of thought, conscience and religion (Art. 14); privacy (Art. 16); protection from all forms of violence (Art. 19); adoption (Art. 21); protection for refugee children (Art. 22); and education (Art. 29).
[11] Committee on the Rights of the Child, above n 4, 6
[12] Mohammad Farid, (et.al), ‘Comments on the First Periodic Report of the Government of Indonesia to the Committee on the Rights of the Child (Covering the period from 1993 to June 2000)’, (Prepared for the “Indonesian NGO Coalition for CRC Monitoring”), < http://www.crin.org/docs/resources/treaties/crc.35/Indonesia_ngo_report.doc> at 8 April 2007
[13]The Committee on the Rights of the Child (hereinafter the CRC committee) is an international expert body authorize to monitor progress achieved in the realization of children’s rights and provide awareness and understanding of the principles and provisions of the CRC
[14] A Presidential Decree may be issued by the President to execute the function and duty of the state and government administration.
[15] Article 7 of Law No. 10/2004 concerning the Legislation Making stated that types and hierarchy of laws are outlined as follows: 1. The 1945 Constitution of Republic Indonesia; 2. Law/Act and Government regulation in lieu of an Act; 3. Government Regulation; 4. Presidential Decree; 5. Regional Regulation.
[16] Mohammad Farid, (et.al), above n 62
[17] Committee on the Rights of the Child, above n 4, 9
[18]Convention on the Elimination of All Forms of Discrimination against Women
[19]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[20]International Convention on the Elimination of All Forms of Racial Discrimination
[21] Indonesia signed the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography and the Optional Protocol on the Involvement of Children in Armed Conflict on 24 September 2001.
[22]Mohammad Farid, (et.al), above n 12.
[23] Article 28B (2) of the 1945 Constitution states ‘Every child shall have the right to live, to grow and to develop, and shall have the right to protection from violence and discrimination’.
[24] Mohammad Farid, (et.al), above n 12.
[25] There are other several child related laws within Indonesian legislation such as Law No1/1974 on Marriage, Law No.4/1979 on Child Welfare, Law No. 3/1997 concerning Juvenile Court, Law No. 20/2003 on the National Education System, and Law No.23/2004 on the Elimination of Domestic Violence.
[26] Committee of the Rights of the Child, ‘Concluding Observations of the Committee on the Rights of the Child, Indonesia’, U.N. Doc. CRC/C/15/Add.223 (2004)
[27] Mohammad Farid, (et.al.), above n 12.
[28] Article 52 (2) of Law No.39/1999 on Human Rights
[29] Article 52 (1) of Law No.39/1999 on Human Rights
[30] Article 53 of Law No.39/1999 on Human Rights
[31] Articles 54-55, 60-62 and Article 52 (1) of Law No.39/1999 on Human Rights
[32] Articles 56-57, and 59 of Law No.39/1999 on Human Rights
[33] Article 58 of Law No.39/1999 on Human Rights
[34] Articles 63-65 of Law No.39/1999 on Human Rights
[35] Article 66 (1)-(7) of Law No.39/1999 on Human Rights
[36] Articles 89-96 of Law No.39/1999 on Human Rights
[37] Article 104 of Law No.39/1999 on Human Rights
[38] Committee of the Rights of the Child, above n 4, 23
[39] Ibid, 25
[40] Ibid, 26
[41] Article 66 of Law No.39/1999 on Human Rights
[42] Committee of the Rights of the Child, above n 4, 27
[43] The general explanatory of Law No.23/2002 on Child Protection
[44] Chapter III Articles 4-19 of Law No.23/2002 on Child Protection
[45] Chapter IV Articles 20-26, Chapter IX Articles 42-71, and Chapter X Article 72 of Law No.23/2002 on Child Protection
[46] Chapter V, VI, VII, and VIII, Articles 27-41 of Law No.23/2002 on Child Protection
[47] Chapter XI Articles 74-76 of Law No.23/2002 on Child Protection
[48] including discrimination and neglect; violence and torture; economic and sexual exploitation; indecent behaviour; trade in children; sale of organs, and the involvement of children in armed conflicts and drug trafficking, Chapter XII Articles 77-90 of Law No.23/2002 on Child Protection
[49] Article 1 (1) of Law No.23/2002 on Child Protection
[50] Article 2 of Law No.23/2002 on Child Protection. This article clearly states that those principles are based on the Constitution and basic principles in the CRC. Moreover its explanatory clarify each principles mean; all attempts and measures concerning child, conducted by the government, the community, the legislative as well as the judicative should apply the best interest of the child as the main consideration, with no discrimination, and consider the right to life as basic right for child. With regard to respecting child’s opinion, it means the right to participate and convey ideas in decision making process, particularly in influential decisions for child’s life.
[51] Chapter III, Articles 4 -19 of Law No.23/2002 on Child Protection
[52] Such as child refugee, child in armed-social conflict and suffering of natural disasters, Articles 60-63 of Law No.23/2002 on Child Protection
[53] Article 64 of Law No.23/2002 on Child Protection
[54] Article 65 of Law No.23/2002 on Child Protection
[55] Article 66 of Law No.23/2002 on Child Protection
[56] Article 68 of Law No.23/2002 on Child Protection
[57] Article 67 of Law No.23/2002 on Child Protection
[58] Article 69 of Law No.23/2002 on Child Protection
[59] Article 70 of Law No.23/2002 on Child Protection
[60] Article 71 of Law No.23/2002 on Child Protection
[61] Chapter IX Articles 59-71 of Law No.23/2002 on Child Protection
[62] Article 27 of Law No.23/2002 on Child Protection
[63] Article 28 (1) of Law No.23/2002 on Child Protection
[64] Article 28 (3) of Law No.23/2002 on Child Protection
[65] Antarini Arna and Mattias Bryneson, ‘Report on Laws and Legal Procedures concerning the Commercial Sexual Exploitation of Children in Indonesia’, (December 2004) ECPAT International,6, 37
[66] ‘Charging for Birth Cetification: the Regional Government of Tangerang Regency has Infringed the Child Protection Act’, (self translation), Kompas (Jakarta), 31 May 2007 [trans of: Kutip Biaya Akte Kelahiran: Pemkab Tangerang Dinilai Langgar UU Perlindungan Anak]
[67] Articles 17-18 and 64 of Law No.32/2002 on Child Protection
[68] (KPAI/Komisi Perlindungan Anak Indonesia) through Presidential Decree No.77/2003, as mandated by Article 74 of Law No. 23 /2002 on Child Protection
[69] Article 76 of Law No.23/2002 on Child Protection
[70] Antarini Arna and Mattias Bryneson, above n 65, 21
[71] This article is the central provision concerning child sexual exploitation, Article 88 states: “Every person who economically or sexually exploits a child for his own gain or the gain of some third party shall be subject to a term of imprisonment of not more than ten (10) years and/or a maximum fine of two hundred million rupiah (Rp 200,000,000)”.
[72] Article 78 states “Every person who knowingly and deliberately exposes children to an emergency situation as referred to in Article 60 hereof, or knowingly and deliberately allows children to find themselves in dealings with the law, children from minority and isolated groups to be mistreated, children to be exploited economically or sexually, children to be traded, children to become the victims of the misuse of narcotics, alcohol, psychotropic substances and other addictive substances, children to become the victims of kidnapping, sale and trading, children to become the victims of violence as referred to in Article 59 hereof, knowing that such children need help and must be assisted, shall be subject to a term of imprisonment of not more than five (5) years and/or a maximum fine of one hundred million rupiah (Rp 100,000,000)”
[73] Article 81 states: (1) Every person who through the deliberate use or threat of violence forces a child to engage in sexual intercourse with him/her or with other people shall be subject to a maximum term of imprisonment of fifteen (15) years and a minimum term of three (3) years, and a maximum fine of three hundred million rupiah (Rp 300,000,000) and a minimum fine of sixty million rupiah (Rp 60,000,000). (2) The punishments set out in section (1) above shall also be applicable to any person who employs tricks, lies or ruses to persuade, or who encourages, a child to engage in sexual intercourse with him or with some other person.
[74] Article 82 states “Every person who uses violence or the threat of violence to force, or who employs tricks, lies or ruses to persuade, or who encourages, a child to engage in indecent behaviour, or who allows such indecent behaviour to occur, shall be subject to a maximum term of imprisonment of fifteen (15) years and a minimum term of three (3) years, and a maximum fine of three hundred million rupiah (Rp 300,000,000) and a minimum fine of sixty million rupiah (Rp 60,000,000)”
[75] Antarini Arna and Mattias Bryneson, above n 65,33
[76] Ibid, 22
[77] Ibid.
[78] Ibid, 36
[79] Article 12 of Law No.1/1974 on Marriage
[80] Article 79 states “Anyone who adopts a child against existing laws or regulations is liable to five years imprisonment and/or a maximum fine of 100 million rupiah”. Moreover the procedures for adoption is regulated in The Ministerial Decree No. 44 of 1986. It establishes a three-stage process for adoptions. First, prospective parents must file an application for the adoption with Social Welfare Office at the provincial level. The Provincial Social Welfare Office must conduct an examination of the adoptive parents and approve or deny the adoption application within three months. After approval, a court judgment is needed for legal recognition of the adoption.
[81] Antarini Arna and Mattias Bryneson, above n 65, 36
[82] Ibid
[83] Article 34 of Law No.23/2002 on Child Protection
[84] Article 35 of Law No.23/2002 on Child Protection
[85] Representing Children Worldwide, ‘Jurisdiction Research: Indonesia’, (A survey conducted at the Yale Law School researching the legal provisions of 194 countries and 56 states concerning how children's voices are heard in child protective proceedings in 2005) <http://www.law.yale.edu/rcw/rcw/jurisdictions/asse/indonesia/frontpage.htm> at 8 June 2007
[86] Interviews with Julie Lebegue, UNICEF, April 2004; Anis Hamin, ICMC, March 2004. as cited from Antarini Arna and Mattias Bryneson, above n 65, 64
[87] In May 2004 in Bali the Child Protection Act was used in a highly publicized case to prosecute a former Australian diplomat who was sentenced to 13 years imprisonment and a fine of USD 17,000 for sexually abusing and sodomising two boys aged 12 and 14 years of age. In announcing the verdict the presiding judge stated that the diplomat was “legally and convincingly proven guilty of committing a continuous obscenity against children”. See Matthew Moore, ‘Pedophile ex-diplomat jailed’ The Sydney Morning Herald, (Sydney), May 12, 2004, <http://www.smh.com.au/articles/2004/05/11/1084041410506.html> at 27 June 2007
[88] Iskandar Hosein, ‘Protection for the Vulnerable Groups (women, children, minority groups, and indigenous people) in the Human Rights Perspective’, (Paper presented at Seminar of The Development of National Law VIII, held in Denpasar Bali, 14-18 July 2003)
[89] Such as Law on Child Protection and Human Rights as discussed above
[90] Dewi Santoso, ‘Government May Reverse Rejections of UN Child Protection Articles’ The Jakarta Post, (Jakarta), January 07 2004 < http://www.kabar-irian.com/pipermail/kabar-indonesia/2004-January/000634.html> at 8 June 2007
[91] Harkristuti Harkrisnowo, ’the Challenge and Agenda for Child’, (self translation) 15 December 2003 [trans of: Tantangan dan Agenda Anak] <http://www.komisihukum.go.id/konten.php?nama=Artikel&op=detail_artikel&id=35> at 25 June 2007
[92] Adam Lopatka, ‘The Rights of The Child are Universal: The Perspective of the UN Convention on the Rights of the Child’ in Michael Freeman and Philip Veerman,(eds.) The Ideologies of Children’s Rights (1992), 47-52, 48
The belief that children have the same rights as adults -civil and political, social, cultural and economic- was expressed as the Convention on the Rights of the Child (hereinafter the CRC). The CRC offers an ideal context where the relationship between diverse cultural values and ‘oft-stated aspiration’ of the international society is examined to accomplish universal human rights standards.[2] Though it is originated from Western political philosophy, ‘human rights represent a cross-cultural consensus on fundamental human values’. [3]
Being ratified by most states across regions after its adoption by the United Nations General Assembly and entering into international law on 02 September 1990, the CRC is the first binding international human rights instrument incorporating in the same text social, cultural, economic civil and political rights. Due to the specific characteristic compared with human rights (of adults) in general, children’s rights become very significant. Nowadays, Ninety-six percent of the world’s children live in States including Indonesia that have ratified the CRC and are thus legally obligated to protect children’s rights. In fact, those states have different political, economic and social contexts. Ratification of the CRC reflects a global commitment toward the principle of the rights of the child. On 5 September1990, Indonesia ratified the CRC through Presidential Decree No. 36/1990 (Keppres 36/1990). Consequently, it has a domestic legal authority equivalent to a Presidential Decree. The provisions in the CRC for Indonesia are expected to be an incentive for the government to protect and fulfill the rights of children.
Political reform in Indonesia towards a more democratic state in 1998, along with awareness on the significance of respecting human rights, has resulted in a more conducive situation to recognize, respect and fulfill human rights.[4] Legal recognition of human rights including rights of the child is realized through Law No.39/1999 concerning Human Rights. Meanwhile, the constitution reform from 1999 to 2002, amending the 1945 Constitution, to some extent is directed to uphold human rights values as a prerequisite of the democratic state. As a result, the amendment of the constitution apparently recognizes the human rights provisions in a specific chapter.[5] Moreover, the right of every child to live, to grow and develop, as well as the right to be protected from violence and discrimination is constitutionally guaranteed in Article 28B of the Constitution. Since then, all related-child laws are directed to be in line with the constitution as well as the CRC, due to no constitutional barrier to implement the CRC.
Notwithstanding the discrepancy between the legislation reform and the actual effect toward children’s problems, the national legislations concerning children in Indonesia has adopted the principles and the provisions in the CRC. Indonesia whishes for a comprehensive protection for children’s rights as maintained in the CRC. However, this has been attempted through a gradual process and by having an ‘Indonesian’ interpretation of particular provisions of the CRC. Different legal and cultural values have led to a typical and contextual approach to the CRC. This paper will critically evaluate the recognition of children’s rights as stipulated in the emphatic provisions: the ratification of the CRC, the 1945 Constitution, Law No.39/1999 on Human Rights, and Law No.23/2002 on Child Protection..
Of the 225,500,000 total population of Indonesia in mid 2006, approximately 29 percent are children under 15 years old.[6] In fact, problems regarding children in Indonesia are extremely complicated and intermingled. Despite the fact that the nature of the state geographically is diverse, comprising of over 17,000 islands with various cultures and traditions in 33 provinces, it also encompasses miscellaneous social economic problems within each region. The internal armed conflicts, terrorism, natural disasters and political tensions are other realities faced by Indonesia which undoubtedly affect the children in all aspects of their daily lives. I believe that ten thousand words will never be an adequate amount to describe the real situation of Indonesian children by words. In general, children’s problems particularly the rights of children remain a serious problem, though there are improvements in particular areas.
The following discussion presents only several fragments of the whole story of Indonesian children feature. This will not represent the entire problems of violation toward children’s rights. However, it is part of the reality. In 2003, As identified by the National Commission for Child Protection (KOMNAS PA) the most pressing problems related to the country's youth are child labor, child trafficking, child prostitution, street children, children in conflict areas, and undernourished children.[7]In addition, the juvenile justice system is another sensitive issue nowadays.
II. Recognition of the Rights of the Child in Indonesian Legislations.
A. The Ratification on the Convention of the Rights of the Child
Despite the fact of having numerous severe problems regarding children, principally, Indonesia through the 1945 Constitution has guaranteed the fundamental rights of the child irrespective of their sex, ethnicity or race. The Constitution prescribes those rights to be implemented by national laws and regulations.[8] Although did not make any formal reservation to the provisions of the CRC upon ratification, Indonesia issued a declaration that is in essence a reservation, and generally viewed as such.[9] The declaration includes a general comment against any obligations outside the limits of Indonesia’s Constitution or any rights beyond those guaranteed under the Constitution. Additionally, the declaration specifically states that Articles 1, 14, 16, 19, 21, 22 and 29 of the CRC are applicable only to the extent that they conform to the Constitution[10].
On the status of reservation to the CRC provisions, in fact, the declaration has generated criticism both nationally and internationally. Because in essence, it was seen as a reservation, but the third (and also the second) paragraphs of the declaration is frequently criticized as ‘a blanket reservation’.[11]The NGO Coalition is of the same opinion that the second paragraph in particular is eventually a ‘sweeping reservation’ that must also be revoked without further delay.[12]Therefore, both the NGO Coalition and the CRC Committee[13] very welcome to the intention of Indonesian government to withdraw the reservation, which has been expressed in the state’s report to the Committee.
Another legal problem regarding the ratification is that instrument of ratification was not an Act by the DPR (legislative), but a Presidential Decree.[14] This method of ratification also has been a source of criticism within national legal system. According to the national hierarchy of laws under Law No.10/2004 concerning the Legislation Making, a Presidential Decree is a lesser instrument, ranked below an Act.[15]Consequently, in addition to have very low status, the CRC is not viable to be used as a formal reference to change or amend the existing laws nor can it be used in drafting any bill.[16]Furthermore, in case of a disagreement between provisions set forth in the CRC and national laws, in application in the court, national laws will prevail.[17]
Additionally, the fact that other major human rights treaties such as CEDAW[18] (ratified in 1984), CAT[19] (ratified in 1998), ICERD[20] (ratified in 1999), ILO Conventions 138 and 182 (ratified in 1999 and 2000 respectively) are ratified by an act, was considered as a discrimination to the CRC. Moreover, the ratification of the CRC Optional Protocols[21] using an act, leads to ‘a contradiction’ within the national jurisdiction.
At that time the government argued that the use of the presidential decree to ratify the CRC was simply to speedy the execution of the treaty, due to the use of an act will require longer time as it needs the parliament’s approval. With regard to this explanation, the NGO coalition believes that it was evidently invalid argument for several reasons. Firstly, by the time of the ratification (1990), the President was extraordinarily dominant in political system. It would be possible for the Parliament to refuse the proposed act. Secondly, In terms of an extensive reservation, it is a serious enquiry on the government’s good intention to adhere to the CRC provisions since there is no practical sign of the commitment to implement such provision in significant steps until the fall of this regime in 1998.[22]
As demanded by the international community, the NGOs and the society, the government then intend to reconsider the reservation. An understanding that the reserved articles are probably applicable, as long as supported by enforceable regulations leads to the possibility to accept them. In the report to the CRC committee, Indonesia also shows willingness to up-grade the instrument of ratification into an Act. However, the fact that the government has taken no step to realize the intention is another concern.
Moreover the amended Constitution, in particular Article 28B (2) concerning the recognition of the rights of the child[23] and Article 28I (5) clearly stated that to uphold and protect such rights, the implementation of those rights shall be further guaranteed, regulated and set forth in laws and regulations. This also supports that the reservation is no longer appropriate. Meanwhile, in practice the CRC has been used as a framework for introducing child-related laws, such as the Child Protection Act of 2002.
The previous discussion demonstrates that in theory, the government of Indonesia has good awareness and understanding about the significance of the child as the future of the nation. Ever since the ratification of the CRC, there is on going legislation reform by reviewing child-related laws to be in line with the CRC. A comprehensive review of national legislation will considerably take an extensive endeavour as well as amount of time. The government has taken major measures in accordance with the state’s obligation under the CRC, namely adherence to international instruments, adoption new child-related laws, and the ongoing drafting process of the bills.[24]
Indonesia also has signed several international instruments related to the rights of the child such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Supplementing to the UN Transnational Organized Crime (2000), the two CRC optional protocols (2001) and the Yokohama Commitment (2001). Furthermore, in addition to the amended Constitution, the Law on Human Rights (Law No.39/1999) and the Law on Child Protection (Law No.23/2002) are the most advance children’s rights-related laws.[25]
Following up of the signing of the international instruments, the government moreover adopted three National Plans of Action for children on combating sexual exploitation, trafficking and child labour. These National plans cover all areas and provisions of the Conventions. The Ministry of Women Empowerment was authorized to coordinate the implementation of the Convention as well as the National Plans. These plans are expected to be integrated into programmes at the provincial and district levels.[26]The government is also in progress drafting the bills on anti trafficking and civil registration. [27]
B. The Constitution
In terms of legislation reform, this is initiated by recognizing the rights of the child in the Constitution. provisions in the Constitution’s Bill of Rights (Chapter XA, Articles 28A to 28J) comprises rights set forth in the CRC and are applicable to all persons, including children, but Article 28B (2) is the only provision specific to children. The provision covers some, but not all, of the fundamental rights set forth in the CRC, such as the right to life and development (Art.6 of the CRC); the right against discrimination (Art.3 of the CRC); and the right to be protected from violence (Art.19 of the CRC).
C. The Human Rights Act
The 1999 Human Rights Act develops the concept of child’s rights in Indonesian legislation. Comprising specific 15 articles of child rights in Chapter X, the Act recognizes the rights of the child are fundamental human rights under the law, protecting such rights since the child in the conception.[28]The child has a right to be protected by the parents, the community and the State.[29] Further, it expresses every child’s right to live, grow, develop, and to have a name and citizenship[30].
Other articles express basic rights, such as the rights to education and health services, to receive information, to express one’s self, to play and recreate, and to exercise one’s religion.[31]In terms of parental responsibility, several articles state the rights of the child to know the parents and not to be separated from them, unless for the child’s best interest.[32]Moreover, in cases of child abuse, mistreatment and violence (physically, mentally or sexually), parents’ or guardian’s custody shall be removed and they should be punished by ‘double’.[33]
Separate articles also address the rights of protection from violence and exploitation such as not to be involved in the armed conflict; from economic exploitation endangering child’s health, from sexual exploitation including trafficking, harassment and drug addiction; from torture and inhuman treatment.[34]While the last article of the chapter articulates the juvenile justice system which is sensitive to the child. Child’s rights should be respected though he/she is in conflict with the law, particularly criminal law. In addition, capital punishment should not be imposed, even on the child convicted severe crimes.[35]
The Act authorizes Human Rights Commission to conduct initial investigations of reported violations under the Act[36] and provide findings of such violations to the public prosecutor for further criminal investigation. However, the Act does not specify sanctions for those violations; therefore for criminal sanction, it should refer to the relevant criminal laws. For severe human rights infringement, the Act commands forming of the human rights court, within no less than 4 years from the Act come into operation.[37]
The recognition of children’s rights in this law is generally in concord with the spirit of the CRC. The specific articles for child and several articles on basic rights for everyone (including child) cover several rights set forth in the CRC such as Articles 8, 13, 14, 15, 17 and 37. However, the CRC Committee addresses several notes. First, the CRC Committee indicates, there is limitation and restriction of freedom of expression, identified in Articles 70, 73 and 74 of the Human Rights Act.[38]This limitation is basically intended to avoid the real harm in society regarding preservation of specific values, for example, considering the diversity of culture, religion and ethnicity. The importance of harmonious is more favor than such freedom. However, limitation should be under justifiable consideration.
Second, with regard to children, the Committee recommended that freedom to associate (Art.15 of the CRC) could be enjoyed by children as well. In terms of freedom of thought, conscience and religion (Art.14 of the CRC), the Law does not explicitly recognize the rights of children from indigenous groups and the impossibility of legal recognition for non-believers. In addition, the lack of specific recognition to protection of privacy for children is another concern.[39] The Committee suggested undertaking special study and analysis concerning this issue. Regarding limitation of the right to access to appropriate information (Art.17 of the CRC), that it should be in accordance with moral and ethical values; the Committee believed that a comparative study of the situation in other countries is thought to be necessary for a comprehensive review. [40]
Relating to the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, (Art.37, para (a) of the CRC), the stipulation of this right[41] remains less than effective in practice. For example for cases of child offender, the Juvenile Court Act prevails. Hence, a review of the compatibility of both acts is necessary. While for child abuse case, penal provisions for violation of this right are still inadequate.[42]
D. The Child Protection Act
Law No.23/2002 on Child Protection is considered a step forward for child’s rights in Indonesia. This is partly, because in judicial practice in Indonesia, provisions in international conventions are normally not directly applied, therefore the CRC provisions might be applied first by “integrating or translating” the provisions into relevant national legislation. The low level of a presidential decree as an instrument of the ratification among other national legislations encouraged the government to have a more comprehensive legal instrument for children’s rights recognition. This law basically is intended to be an adequate foundation for that.
The Law acknowledges the rights of the child as human rights stipulated in the Constitution as well as in the CRC. Philosophically, the Law emphasizes responsibility of all parties: parents, family, community, the government and the state to fulfil the protection of the rights of the child.[43]In addition the provisions in the CRC are predominantly adopted in this Law.
The Act comprises five main sections: a. Bill of Rights for children;[44] b. the obligations of the State, the community and parents in protecting children, and the implementation of the protection;[45] c. chapters concerning the status of children, guardianship, custody, and adoption;[46] d. establishment of a commission for the protection of Indonesian children;[47] and e. criminal provisions section for offences against children.[48]
The Bill of Rights introduces many of the CRC’s principles into domestic law and considerably expands the number of recognised rights and principles for children. Most importantly, the Act defines a child as any person below the age of 18 years, in line with the CRC.[49]This applies equally to boys and girls, regardless of their marital status or former marital status. As a basis for protecting children, along with the Pancasila, the national ideology, the Act recognises the principles of non-discrimination, the best interests of the child, the rights to life, continuity of life, and development, and the respect for the opinions of children[50].
Other provisions in the Bill of Rights recognize a child’s right to express his/her views, the right to a name and identity, the right to know one’s parents, the right to education, and the right to be protected from violence and abuse[51]. Separate chapters provide more detailed provisions on identity and birth registration, parental rights, guardianship, adoption, religion, health, education, social development and special protection.
The special protection is provided for children that are: in emergency[52] in conflict with law,[53] belong to minority and isolated groups,[54] victims of economic and/or sexual exploitation[55] and trafficking[56], narcotics and other illicit drugs users, [57] physically and psychologically abused,[58] with disability,[59] and mistreated or abandoned.[60] This Act, therefore, mandates certain measures, such as dissemination of relevant laws, monitoring, sanctions, prevention, care and rehabilitation[61].
Concerning the right to name, identity and nationality (Art.7-8 the CRC), the Act stipulates several important principles on birth registration.[62]The Act states that every child should be given identity from birth and it shall be stated in a birth certificate. Accordingly, birth registration and issuance of a birth certificate is the government’s responsibility not the parents, by creating procedures at the local level.[63] Therefore, the issuance of a birth certificate shall be free of charge.[64]
However, since enactment of the law in late 2002, only Makassar Regency in South Sulawesi Province has issued a local regulation (Perda) providing for free birth registration. The Regency of Solo in Central Java is in the process of enacting a local regulation that will provide for free registration of births within the prescribed two-month period, but late applicants will be subject to an administrative fee.[65]In practice, of the 444 regencies in Indonesia, only 46 regencies have applied ‘free of charge’ birth certification. [66]
More advance than the Juvenile Court Act and the Criminal Code, the Child Protection Act contains several principles consistent with international standards for the special protection of children in conflict with the law. [67] Most importantly, children should receive humane treatment in accordance with their dignity and rights and any sanction imposed must be in their best interests. Any kinds of criminal prosecution such as detention of a child shall only be used as a last recourse.
Further, to prevent stigmatisation, the identity of a child shall not be released to the media. This is also applied for a child of sexual abuse victim. Moreover children involved in criminal judicial proceedings, entitle to legal and other assistance, including counselling. Authorities must provide special infrastructure and facilities for children. Child detainees, deprived of their liberty, must be separated from adults. In addition, authorities must continuously monitor and record the development of all children who are in conflict with the law while children shall have access to information regarding the development of their criminal case.
To enhance the efficacy of the implementation of the child protection, the government established the Indonesian Commission for Child Protection.[68] The task of this independent institution, is ranging from disseminating all provisions in child protection-related legislations, collecting data and information, accommodating people complaints, conducting research and study, monitoring and evaluating the realization of child protection, to submitting a report, input and consideration to the president regarding programs for protecting child.[69]
The substance of the Act however still has weaknesses, particularly on criminal provisions. Firstly, The Act applies several criminal provisions to (forced) child prostitution cases and introduces new offences into the Indonesian criminal law.[70] There are several related articles namely Articles 88,[71] 78,[72] 81[73] and 82[74] regarding criminalizing the sex exploiter of a child with very high penalties for violations. Regrettably, the Act does not stipulate any provisions related to distributing and possessing child pornography.[75]
Under Article 88, the offence of child prostitution might be applied if the three elements are fulfilled: ‘sexually exploits,’ a child’ and ‘his own gain’. The problems are there is no elucidation for interpreting this provision, whether purchasing sexual services from a child considered exploitative. In reality, children under 18 years old who are married or divorced are not identified as a child in Indonesian Law. Additionally it is easy to falsify age on the identity card. Furthermore, the term ‘his own gain’ may be interpreted to include not only economic gain or financial benefit but also personal or sexual satisfaction.[76] Although to some extent also criminalizes child sexual exploitation, Article 78 is limited to intentional acts only and does not cover negligence.[77]
Secondly regarding the provisions on adoption, in fact, the practice of adoption in Indonesia is mostly conducted in an informal manner according to tradition without any legal paperwork. In addition, there is no strict prohibition of commercial adoptions where the natural parents give up their child in exchange for financial compensation.[78]
However, legally there is provision concerning this practice[79] including in this Child Protection Act. Art.39 of the Act sets several criteria for adoptions, for example, adoptions may only be carried out in the best interest of the child; the adoption does not sever the blood relationship between the adopted child and his/her natural parents, adoptive parents must be of the same religion as the child, and inter-country adoptions of Indonesian children may only be permitted as a last resort. The Act contains a criminal offence for adoptions against certain provisions expressed in the law,[80] but only for the actual adoptive parents not intermediaries in the adoption or the natural parent.[81]
Thirdly, although underage marriages are not formally recognized by the State, there are no further provisions to discourage early marriages or criminal sanctions for marriage to an underage child or allowing one’s underage child to marry. Art.26 of the Act states that the family and parents shall be responsible and accountable for preventing underage marriages, but there are no criminal sanctions attached.[82]
Moreover, regarding the appointment of the guardian, the Law only mandates the appointment of a guardian to ‘represent the child to carry out legal acts, both inside and outside court.’[83] The only legal acts specified are economic matters,[84] so it is unlikely that guardians are appointed in protection proceedings. In any case, the law does not specify that the guardian must convey the wishes of the child.[85]
Generally speaking, the efficacy of the implementation of the provisions of the Child rights is dependent on awareness of all parties, particularly the law enforcement apparatus. Therefore, dissemination of the provisions is an important factor. In contrast, there are positive signs that the Child Protection Act is influencing law enforcement. The Act has been and being used to prosecute sex offenders in individual cases around the country, [86] for instance, a sodomy case of a former Australian diplomat.[87]
Despite the fact that there is discrepancy between the fact of child rights and the recognition of such rights in national legislations, from the previous discussion, we can see that Indonesian legislation recognizing such rights is considerably sufficient in quantity. Furthermore, Iskandar Hosein conveys several practical impediments of the implementation of the provisions: a. the low performance of the Indonesian Commission for Child Protection; b. the problematical law enforcement; c. the inharmonious legislations regarding child’s rights; and d. the lack of dissemination of the rights of the child in society.[88]
Another sign of the willingness of the Indonesian government to fully comply with the CRC is the adoption of the principles and provisions of the CRC in several new child rights-related laws.[89] This is an effort to translate the Convention into domestic law, with an adequate position. In other words, though the CRC is legally ratified only by a presidential decree, the spirit, principles and several provisions of the CRC are covered in laws. In fact those legislations construct a framework for enacting or amending other laws and regulations. They are also directly applicable as any other laws. Hence, without any legal or official withdrawal, those reserved articles of the CRC have been applied in Indonesian legislation.
Since the Convention on the Rights of the Child in 2004, Indonesian government has been ‘in an about-face’ to accept seven articles of the CRC. The reservation of those particular provisions has been restudied. At the time of the reservation, the government believed that those seven articles in general did not conform to Indonesian (moral) values.[90] However, the current situation regarding children in Indonesia is strongly correlated to structure, perception, value and norm that generally accepted within the society.[91]As having been discussed, for some factors, this is possible to change. I believe that the impediment is also resulted from the fact that Indonesia realizes its incapability to implement such principles due to social, economic, politic and cultural constraints in addition to legal constraint. These constraints are in fact amalgamated and influencing one another. As a developing country, social-economic resources scarcity is still a dominant factor hampering Indonesia's efforts to develop the well being of children. Consequently, economic, social and political rights for children cannot meet the standard in a short time.
The impediments of the implementation of the CRC in truth are not only found in the legislation level, but profoundly in the application and practical level. Consequently, the recognition of the rights of the child in Indonesia is a continuing struggle. It is an enormous work for parents, family, society, the government, the state, NGOs, and even for international communities.
III. Conclusion
From the discussion above, the contextual and cultural interpretation considerably seems to be a proper approach to implement the spirit of the CRC into national laws. The legal reform on the other hand supports the cultural affirmation to negotiate on several contentious values. As a matter of fact, it is worth to stress that the right to be different is becoming a recognized universal human right as well.[92]
Notwithstanding that there is no legal or official withdrawal of the reservation of the CRC, the Indonesian legislation has gradually reformed towards a comprehensive recognition of the rights of the child in accordance with the spirits and principles of the CRC. The adoption of some principles and provisions of the CRC in the child-related laws, for example the 2002 Child Protection Act is a considerable effort to have an adequate legal framework for protecting children’s rights.
The impediments of the implementation of the CRC in fact are not only found in the legislation level, but profoundly in the application and practical level. Consequently, the recognition of the rights of the child in Indonesia is a continuing struggle. It is an enormous work for parents, family, society, the government, the state, NGOs, and even for international communities.
In the context of Indonesia, the constraints impeding the implementation of the CRC principles in national legislation are primarily caused by legal and cultural restraints. Therefore, the way to interpret the CRC into domestic laws is an appropriate way to avoid superficial recognition of the rights of the child. The legal and cultural factors are considered more important due to its function in reforming other sectors. Moreover, the economic, social and political constraints might be resolved in long-term endeavors. In fact, those constraints are intermingled and influence one another.
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- Committee on the Rights of the Child, ‘Summary Record of the 79th Meeting’, Fourth Session, Geneva, CRC/C/SR.79 (6 May 1994)
- Country Reports on Human Rights Practices: Indonesia -2004’, (Released by the Bureau of Democracy, Human Rights, and Labor, February 28, 2005)
- Farid, Mohammad, (et.al), ‘Comments on the First Periodic Report of the Government of Indonesia to the Committee on the Rights of the Child (Covering the period from 1993 to June 2000)’, Prepared for the “Indonesian NGO Coalition for CRC Monitoring” < http://www.crin.org/docs/resources/treaties/crc.35/Indonesia_ngo_report.doc> at 8 April 2007.
- Harkrisnowo, Harkristuti, ’the Challenge and Agenda for Child’, (self translation) 15 December 2003 [trans of: Tantangan dan Agenda Anak] <http://www.komisihukum.go.id/konten.php?nama=Artikel&op=detail_artikel&id=35> at 25 June 2007
- Hosein, Iskandar, ‘Protection for the Vulnerable Groups (women, children, minority groups, and indigenous people) in the Human Rights Perspective’, (Paper presented at Seminar of The Development of National Law VIII, held in Denpasar Bali, 14-18 July 2003)
- International Confederation of Free Trade Unions (ICFTU), ‘Internationally-Recognised Core Labour Standards in Indonesia’, Report for the WTO General Council Review of Trade Policies of Indonesia, (Geneva, 27 and 30 June 2003)
- Moore, Matthew, ‘Pedophile ex-diplomat jailed’ The Sydney Morning Herald, (Sydney), May 12, 2004, <http://www.smh.com.au/articles/2004/05/11/1084041410506.html> at 27 June 2007
- Santoso, Dewi, ‘Government May Reverse Rejections of UN Child Protection Articles’ The Jakarta Post, (Jakarta), January 07 2004 < http://www.kabar-irian.com/pipermail/kabar-indonesia/2004-January/000634.html> at 8 June 2007
Legislations:
- The United Nations Convention on the Rights of the Child, 1989
- The 1945 Constitution of the Republic Of Indonesia (amended version)
- Law No. 20 of 2003 on the National Education System;
- Law No. 23 of 2002 on Child Protection;
- Law No.39 of 1999 on Human Rights
- Law No. 3 of 1997 concerning the Juvenile Court
- Law No.4 of 1979 concerning the Child Welfare
- Law No.1 of 1974 on Marriage
[1] Writer is a Legislative Drafter of The Indonesian Parliament Secretariat General, Melbourne Law School Alumni - University of Melbourne Australia 2007
[2] James R. Himes, ‘Foreword’ in Philip Alston (ed.) The Best Interests of the Child: Reconciling Culture and Human Rights (1994), v.
[3] David Johnson,’ Cultural and Regional Pluralism in the Drafting of the UN Convention on the Rights of the Child, in Michael Freeman and Philip Veerman,(eds.) The Ideologies of Children’s Rights (1992), 96-114,112
[4] Committee on the Rights of the Child, ‘Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Indonesia’ Second Periodic Report, (7 July 2003), CRC/C/65/Add.23, 4.
[5] Chapter XA, Articles 28A – 28J of the 1945 Constitution of the Republic Indonesia consists of 26 provisions regarding the recognition of human rights/ Bill of Rights.
[6] According to Population Reference Bureau, See http://www.prb.org/Countries/Indonesia.aspx
[7] ‘Country Reports on Human Rights Practices: Indonesia -2004’, (Released by the Bureau of Democracy, Human Rights, and Labor, February 28, 2005)
[8] As declared in the declaration on ratifying the Convention of the Rights of the Child
[9] The complete version of the declaration is as follows:
The 1945 Constitution of the Republic of Indonesia guarantees the fundamental rights of the child irrespective of its sex, ethnic origin or race. The Constitution prescribes those rights to be implemented by national laws and regulations.
The ratification of the Convention on the Rights of the Child by the Republic of Indonesia does not imply the acceptance of obligations going beyond the constitutional limits nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution.
With reference to the provisions of articles 1, 14, 16, 19, 21, 22 and 29 of the Convention, the Government of the Republic of Indonesia declares that it will apply these articles in conformity with its Constitution.
[10] The definition of the child (Art. 1); freedom of thought, conscience and religion (Art. 14); privacy (Art. 16); protection from all forms of violence (Art. 19); adoption (Art. 21); protection for refugee children (Art. 22); and education (Art. 29).
[11] Committee on the Rights of the Child, above n 4, 6
[12] Mohammad Farid, (et.al), ‘Comments on the First Periodic Report of the Government of Indonesia to the Committee on the Rights of the Child (Covering the period from 1993 to June 2000)’, (Prepared for the “Indonesian NGO Coalition for CRC Monitoring”), < http://www.crin.org/docs/resources/treaties/crc.35/Indonesia_ngo_report.doc> at 8 April 2007
[13]The Committee on the Rights of the Child (hereinafter the CRC committee) is an international expert body authorize to monitor progress achieved in the realization of children’s rights and provide awareness and understanding of the principles and provisions of the CRC
[14] A Presidential Decree may be issued by the President to execute the function and duty of the state and government administration.
[15] Article 7 of Law No. 10/2004 concerning the Legislation Making stated that types and hierarchy of laws are outlined as follows: 1. The 1945 Constitution of Republic Indonesia; 2. Law/Act and Government regulation in lieu of an Act; 3. Government Regulation; 4. Presidential Decree; 5. Regional Regulation.
[16] Mohammad Farid, (et.al), above n 62
[17] Committee on the Rights of the Child, above n 4, 9
[18]Convention on the Elimination of All Forms of Discrimination against Women
[19]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[20]International Convention on the Elimination of All Forms of Racial Discrimination
[21] Indonesia signed the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography and the Optional Protocol on the Involvement of Children in Armed Conflict on 24 September 2001.
[22]Mohammad Farid, (et.al), above n 12.
[23] Article 28B (2) of the 1945 Constitution states ‘Every child shall have the right to live, to grow and to develop, and shall have the right to protection from violence and discrimination’.
[24] Mohammad Farid, (et.al), above n 12.
[25] There are other several child related laws within Indonesian legislation such as Law No1/1974 on Marriage, Law No.4/1979 on Child Welfare, Law No. 3/1997 concerning Juvenile Court, Law No. 20/2003 on the National Education System, and Law No.23/2004 on the Elimination of Domestic Violence.
[26] Committee of the Rights of the Child, ‘Concluding Observations of the Committee on the Rights of the Child, Indonesia’, U.N. Doc. CRC/C/15/Add.223 (2004)
[27] Mohammad Farid, (et.al.), above n 12.
[28] Article 52 (2) of Law No.39/1999 on Human Rights
[29] Article 52 (1) of Law No.39/1999 on Human Rights
[30] Article 53 of Law No.39/1999 on Human Rights
[31] Articles 54-55, 60-62 and Article 52 (1) of Law No.39/1999 on Human Rights
[32] Articles 56-57, and 59 of Law No.39/1999 on Human Rights
[33] Article 58 of Law No.39/1999 on Human Rights
[34] Articles 63-65 of Law No.39/1999 on Human Rights
[35] Article 66 (1)-(7) of Law No.39/1999 on Human Rights
[36] Articles 89-96 of Law No.39/1999 on Human Rights
[37] Article 104 of Law No.39/1999 on Human Rights
[38] Committee of the Rights of the Child, above n 4, 23
[39] Ibid, 25
[40] Ibid, 26
[41] Article 66 of Law No.39/1999 on Human Rights
[42] Committee of the Rights of the Child, above n 4, 27
[43] The general explanatory of Law No.23/2002 on Child Protection
[44] Chapter III Articles 4-19 of Law No.23/2002 on Child Protection
[45] Chapter IV Articles 20-26, Chapter IX Articles 42-71, and Chapter X Article 72 of Law No.23/2002 on Child Protection
[46] Chapter V, VI, VII, and VIII, Articles 27-41 of Law No.23/2002 on Child Protection
[47] Chapter XI Articles 74-76 of Law No.23/2002 on Child Protection
[48] including discrimination and neglect; violence and torture; economic and sexual exploitation; indecent behaviour; trade in children; sale of organs, and the involvement of children in armed conflicts and drug trafficking, Chapter XII Articles 77-90 of Law No.23/2002 on Child Protection
[49] Article 1 (1) of Law No.23/2002 on Child Protection
[50] Article 2 of Law No.23/2002 on Child Protection. This article clearly states that those principles are based on the Constitution and basic principles in the CRC. Moreover its explanatory clarify each principles mean; all attempts and measures concerning child, conducted by the government, the community, the legislative as well as the judicative should apply the best interest of the child as the main consideration, with no discrimination, and consider the right to life as basic right for child. With regard to respecting child’s opinion, it means the right to participate and convey ideas in decision making process, particularly in influential decisions for child’s life.
[51] Chapter III, Articles 4 -19 of Law No.23/2002 on Child Protection
[52] Such as child refugee, child in armed-social conflict and suffering of natural disasters, Articles 60-63 of Law No.23/2002 on Child Protection
[53] Article 64 of Law No.23/2002 on Child Protection
[54] Article 65 of Law No.23/2002 on Child Protection
[55] Article 66 of Law No.23/2002 on Child Protection
[56] Article 68 of Law No.23/2002 on Child Protection
[57] Article 67 of Law No.23/2002 on Child Protection
[58] Article 69 of Law No.23/2002 on Child Protection
[59] Article 70 of Law No.23/2002 on Child Protection
[60] Article 71 of Law No.23/2002 on Child Protection
[61] Chapter IX Articles 59-71 of Law No.23/2002 on Child Protection
[62] Article 27 of Law No.23/2002 on Child Protection
[63] Article 28 (1) of Law No.23/2002 on Child Protection
[64] Article 28 (3) of Law No.23/2002 on Child Protection
[65] Antarini Arna and Mattias Bryneson, ‘Report on Laws and Legal Procedures concerning the Commercial Sexual Exploitation of Children in Indonesia’, (December 2004) ECPAT International,6, 37
[66] ‘Charging for Birth Cetification: the Regional Government of Tangerang Regency has Infringed the Child Protection Act’, (self translation), Kompas (Jakarta), 31 May 2007 [trans of: Kutip Biaya Akte Kelahiran: Pemkab Tangerang Dinilai Langgar UU Perlindungan Anak]
[67] Articles 17-18 and 64 of Law No.32/2002 on Child Protection
[68] (KPAI/Komisi Perlindungan Anak Indonesia) through Presidential Decree No.77/2003, as mandated by Article 74 of Law No. 23 /2002 on Child Protection
[69] Article 76 of Law No.23/2002 on Child Protection
[70] Antarini Arna and Mattias Bryneson, above n 65, 21
[71] This article is the central provision concerning child sexual exploitation, Article 88 states: “Every person who economically or sexually exploits a child for his own gain or the gain of some third party shall be subject to a term of imprisonment of not more than ten (10) years and/or a maximum fine of two hundred million rupiah (Rp 200,000,000)”.
[72] Article 78 states “Every person who knowingly and deliberately exposes children to an emergency situation as referred to in Article 60 hereof, or knowingly and deliberately allows children to find themselves in dealings with the law, children from minority and isolated groups to be mistreated, children to be exploited economically or sexually, children to be traded, children to become the victims of the misuse of narcotics, alcohol, psychotropic substances and other addictive substances, children to become the victims of kidnapping, sale and trading, children to become the victims of violence as referred to in Article 59 hereof, knowing that such children need help and must be assisted, shall be subject to a term of imprisonment of not more than five (5) years and/or a maximum fine of one hundred million rupiah (Rp 100,000,000)”
[73] Article 81 states: (1) Every person who through the deliberate use or threat of violence forces a child to engage in sexual intercourse with him/her or with other people shall be subject to a maximum term of imprisonment of fifteen (15) years and a minimum term of three (3) years, and a maximum fine of three hundred million rupiah (Rp 300,000,000) and a minimum fine of sixty million rupiah (Rp 60,000,000). (2) The punishments set out in section (1) above shall also be applicable to any person who employs tricks, lies or ruses to persuade, or who encourages, a child to engage in sexual intercourse with him or with some other person.
[74] Article 82 states “Every person who uses violence or the threat of violence to force, or who employs tricks, lies or ruses to persuade, or who encourages, a child to engage in indecent behaviour, or who allows such indecent behaviour to occur, shall be subject to a maximum term of imprisonment of fifteen (15) years and a minimum term of three (3) years, and a maximum fine of three hundred million rupiah (Rp 300,000,000) and a minimum fine of sixty million rupiah (Rp 60,000,000)”
[75] Antarini Arna and Mattias Bryneson, above n 65,33
[76] Ibid, 22
[77] Ibid.
[78] Ibid, 36
[79] Article 12 of Law No.1/1974 on Marriage
[80] Article 79 states “Anyone who adopts a child against existing laws or regulations is liable to five years imprisonment and/or a maximum fine of 100 million rupiah”. Moreover the procedures for adoption is regulated in The Ministerial Decree No. 44 of 1986. It establishes a three-stage process for adoptions. First, prospective parents must file an application for the adoption with Social Welfare Office at the provincial level. The Provincial Social Welfare Office must conduct an examination of the adoptive parents and approve or deny the adoption application within three months. After approval, a court judgment is needed for legal recognition of the adoption.
[81] Antarini Arna and Mattias Bryneson, above n 65, 36
[82] Ibid
[83] Article 34 of Law No.23/2002 on Child Protection
[84] Article 35 of Law No.23/2002 on Child Protection
[85] Representing Children Worldwide, ‘Jurisdiction Research: Indonesia’, (A survey conducted at the Yale Law School researching the legal provisions of 194 countries and 56 states concerning how children's voices are heard in child protective proceedings in 2005) <http://www.law.yale.edu/rcw/rcw/jurisdictions/asse/indonesia/frontpage.htm> at 8 June 2007
[86] Interviews with Julie Lebegue, UNICEF, April 2004; Anis Hamin, ICMC, March 2004. as cited from Antarini Arna and Mattias Bryneson, above n 65, 64
[87] In May 2004 in Bali the Child Protection Act was used in a highly publicized case to prosecute a former Australian diplomat who was sentenced to 13 years imprisonment and a fine of USD 17,000 for sexually abusing and sodomising two boys aged 12 and 14 years of age. In announcing the verdict the presiding judge stated that the diplomat was “legally and convincingly proven guilty of committing a continuous obscenity against children”. See Matthew Moore, ‘Pedophile ex-diplomat jailed’ The Sydney Morning Herald, (Sydney), May 12, 2004, <http://www.smh.com.au/articles/2004/05/11/1084041410506.html> at 27 June 2007
[88] Iskandar Hosein, ‘Protection for the Vulnerable Groups (women, children, minority groups, and indigenous people) in the Human Rights Perspective’, (Paper presented at Seminar of The Development of National Law VIII, held in Denpasar Bali, 14-18 July 2003)
[89] Such as Law on Child Protection and Human Rights as discussed above
[90] Dewi Santoso, ‘Government May Reverse Rejections of UN Child Protection Articles’ The Jakarta Post, (Jakarta), January 07 2004 < http://www.kabar-irian.com/pipermail/kabar-indonesia/2004-January/000634.html> at 8 June 2007
[91] Harkristuti Harkrisnowo, ’the Challenge and Agenda for Child’, (self translation) 15 December 2003 [trans of: Tantangan dan Agenda Anak] <http://www.komisihukum.go.id/konten.php?nama=Artikel&op=detail_artikel&id=35> at 25 June 2007
[92] Adam Lopatka, ‘The Rights of The Child are Universal: The Perspective of the UN Convention on the Rights of the Child’ in Michael Freeman and Philip Veerman,(eds.) The Ideologies of Children’s Rights (1992), 47-52, 48
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