Human Rights Watch Submits to Indonesian Economic Committee

We write in advance of the 75th session of the Committee on Economic, Social and Cultural Rights ("the Committee") and its review of Indonesia. This submission focuses on mandatory hijab regulations, Indonesia's new criminal code, the right to education, shackling of persons with psychosocial disabilities, and freedom from violence and harassment at work.

Mandatory Hijab Regulations (articles 7, 12, 13, and 15)

1. Since first being introduced in West Sumatra in 2001, Indonesia has imposed 120 local mandatory hijab regulations, compelling millions of girls and women to wear the jilbab, or hijab, the female headdress covering the hair, neck, and chest. It is usually required in combination with a long skirt and a long-sleeved shirt. The National Commission on Violence Against Women reported that 73 such regulations were still in force as of August 2023. [1] Sanctions include verbal warnings, expulsion from school or work, and jail terms of up to three months.
2. In 2021, Human Rights Watch documented widespread bullying of girls and women to pressure them to wear the jilbab, as well as the deep psychological distress such bullying causes.[2] In at least 24 provinces, girls who did not comply were forced to leave school or withdrew under pressure, while some female civil servants, including teachers, doctors, school principals, and university lecturers lost their jobs or felt compelled to resign.[3] Bullying and intimidation to wear the jilbab also takes place on social media. Human Rights Watch documented intimidating and threatening messages, including death threats and threats of violence, conveyed to women and girls via Facebook and WhatsApp.
3. By July 2022, nearly 150,000 schools in Indonesia's 24 Muslim-majority provinces enforced mandatory jilbab rules, based on both local and national regulations. In some conservative Muslim areas such as Aceh and West Sumatra, even non-Muslim girls have also been forced to wear the jilbab.[4]
4. In June 2014, then-Education Minister Mohammad Nuh issued an ambiguously worded regulation that implied all female Muslim students from grades 1 to 12 (roughly ages 6 to 18) must wear a jilbab as part of their state school uniform.[5] In February 2021, Education and Culture Minister Nadiem Makarim, Home Affairs Minister Tito Karnavian, and Religious Affairs Minister Yaqut Cholil Qoumas formally issued a decree that allows any student or teacher to choose what to wear in school with or without "religious attributes." The decree ordered local governments and school principals and administrations to abandon regulations requiring a jilbab in state schools.[6]
5. In May 2021, Indonesia's Supreme Court canceled the new regulation. The panel of three judges ruled that the regulation violated four national laws, and children under 18 have no right to choose their clothes.[7] In response, more than 800 public figures signed a petition condemning the Supreme Court's decision and asked the Judiciary Commission to review it, saying the regulation was unconstitutional and discriminatory. In June 2021, the Judiciary Commission rejected the petition on a technicality.[8]
6. In a bid to overcome the Supreme Court ban, in September 2022, Education and Culture Minister Nadiem Makarim issued a new regulation on state school uniforms, decreeing that schools should not mandate girls "to wear a certain uniform." It also requires that local governments adhere to this national regulation. However, the new regulation did not require local governments to revoke their respective mandatory hijab rules, which the previous (now cancelled) decree required.[9]
7. Human Rights Watch recommends that the Committee ask the government of Indonesia:

• Will the government commit to an action plan that ensures all discriminatory national and local laws and regulations affecting women and girls are repealed, and all discriminatory policies are prohibited?

8. Human Rights Watch recommends that the Committee call on the government of Indonesia to:

• Issue a public policy statement that all national and local ordinances and regulations requiring the jilbab and other female clothing are discriminatory, should not be enforced, and should be repealed.
• Send to parliament draft legislation repealing existing provincial and local regulations that discriminate on the basis of gender, including regulations that require women and girls to wear a jilbab or other prescribed clothing, and banning any new discriminatory regulations in the future.
• Work with Islamic organizations, including the Nahdlatul Ulama and the Muhammadiyah, to create a public messaging campaign against requiring or pressuring women and girls to wear the jilbab or other Islamic dress, and promoting tolerance and inclusivity.
• Order government officials to revoke discriminatory ordinances and to stop pressuring women and girls to wear the jilbab or other religious dress and take disciplinary action against those who violate this order.

Indonesia's New Criminal Code (articles 2, 12, and 13)

9. Indonesia's parliament passed a new criminal code in December 2022 that contains provisions that constitute serious infringements of human rights, including the rights to life, health, freedom from torture and degrading treatment, and to privacy, in particular the capacity to determine the number and spacing of children.[10]
10. Articles in the law maintain the criminalization of abortion with some exceptions, and now also criminalize distributing information about contraception to children and providing information about obtaining an abortion to anyone. These provisions especially harm women and girls, in particular their rights to comprehensive and inclusive sexual and reproductive health education and information. They also negatively impact women's and girls' ability to protect their health and to make informed choices about their bodies and having children. These provisions can lead to unwanted pregnancies, which can affect a range of rights, including ending a girl's education, contributing to child marriage, as well as putting women and girls' health and lives at risk.[11]
11. The new law also provides that the government will recognize "any living law" in the country, which is likely to be interpreted to extend formal legality to hundreds of Sharia (Islamic law) regulations imposed by local officials in areas across the country. Many of these regulations discriminate against women and girls and include provisions such as curfews specifically targeting females, female genital mutilation, and mandatory hijab dress codes.[12]
12. Human Rights Watch recommends that the Committee call on the government of Indonesia to:

• Repeal all discriminatory clauses in the new Criminal Code, including those that violate the rights to health and education of women and girls.

Right to Education (article 13)

13. Indonesia provides nine years of free and compulsory basic education,[13] comprising primary and junior secondary levels.[14] Indonesia does not provide universal free pre-primary education. In 2015, the government committed to implementing a 12-year compulsory education policy,[15] yet completion rates at the lower and upper secondary levels were 88 percent and 67 percent in 2020, respectively.[16] At the pre-primary level, the net enrollment rate was just 43 percent in 2022.[17]

Access to education during the Covid-19 pandemic

14. From March 2020 to March 2022, in response to the Covid-19 pandemic, Indonesian schools were fully closed for 20 weeks and only partially open for 72 weeks.[18] While the government transitioned to various forms of distance learning, Human Rights Watch found several barriers to accessing education.[19]
15. For example, a student in a small village in North Sulawesi explained that around 30 percent of his classmates lived in remote areas with internet that was so unreliable that "these classmates [could not] participate in online class because there [was] no signal when it rain[ed]."[20] Some children went to extraordinary lengths to try to access the internet for learning. One student who lived on the island of Borneo travelled 24 kilometers by motorbike, four times a week, to find a strong enough phone signal to receive WhatsApp messages from her teachers and email back her assignments.[21]
16. Some children had no access to any kind of device that would enable learning or allow them to stay in touch with their teachers. A student in Papua said she returned assignments by phone. But "in my class, all students who [did] not have an [Android] phone are Indigenous Papuan students, plus three new settler children [predominately from Java]. How could you learn without an [Android] phone?" She also said that although her school distributed some schoolbooks, they did not give out physics, biology, and chemistry books "because those books were expensive."[22]

Protection of education from attack

17. As of September 2023, Indonesia was contributing 2,447 troops to United Nations peace operations, including in the Democratic Republic of the Congo and the Central African Republic, which are both countries where attacks on education have been documented as a problem.[23] These troops are required to comply with the UN Department of Peace Operations' UN Infantry Battalion Manual (2012), which includes the provision that "schools shall not be used by the military in their operations."[24]
18. The Safe Schools Declaration[25] is an inter-governmental political commitment that provides countries with the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict; the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict. [26] As of November 2023, 118 states have endorsed the declaration,[27] including 31 fellow members of the Organisation of Islamic Cooperation. However, Indonesia has not endorsed the declaration.
19. Human Rights Watch recommends that the Committee ask the government of Indonesia:

• What barriers does the government see to providing at least one year of free and compulsory pre-primary education, and fully implementing 12 years of free primary and secondary education?
• How has the extent of children's learning loss due to Covid-19 school closures been assessed, and what measures have been taken to remedy lost learning?
• Are protections for schools from military use included in any policies, rules, or trainings for Indonesia's armed forces, including in pre-deployment training for peace operations?

20. Human Rights Watch recommends that the Committee call on the government of Indonesia to:

• Make at least one year of pre-primary education free and compulsory.
• Strategically allocate educational resources to marginalized and low-income groups and those shown to have been particularly affected in their education during the pandemic.
• Adopt measures to provide affordable, reliable, quality, and accessible internet, including targeted measures to provide free, equitable access to the internet for educational content, and develop or expand device affordability and availability initiatives for schools and families. To the extent that online learning is used beyond Covid-19 school closures, Human Rights Watch recommends that it should be done in a manner that protects children's privacy online.
• Ensure Indonesian laws, policies, or trainings, including pre-deployment trainings for UN peace operations, provide explicit protection for schools from military use during armed conflict.

• Endorse and implement the Safe Schools Declaration.

Shackling of Persons with Psychosocial Disabilities (articles 11 and 12)

21. In Indonesia, people with psychosocial disabilities (mental health conditions) can be shackled by families in their own homes or in overcrowded and unsanitary institutions, against their will, due to widespread stigma and a lack of community-based support, including mental health services. The practice is locally known as pasung. In 2016, based on research across the Indonesian islands of Java and Sumatra, Human Rights Watch documented 175 cases of persons with psychosocial disabilities in pasung (shackles) or who had been recently rescued from pasung. [28] We also obtained information about another 200 cases of pasung that had been recently documented.
22. Pasung literally means "tie" or "bind" in Indonesian and is a form of restraint traditionally used in Indonesia, in the absence of access to mental health care and other support services, to confine persons with perceived or actual psychosocial disabilities within the home or just outside. It consists of chaining people or locking them in a room, shed, cage, or animal shelter (including chicken coops, pig pens, or goat sheds) for periods of time ranging from a couple of hours or days to years. The nature of shackling means that people live in very restrictive conditions that reduce their ability to stand or move at all.
23. Pasung can also be a temporary measure that is used to restrain a person with a psychosocial disability for shorter periods while the family goes out to work or when the person is having a crisis. Pasung is typically practiced by families who believe that the relative with the psychosocial disability is possessed by evil spirits, or who are worried that the person might hurt themselves or others or might run away. It is also used in traditional or religious healing centers in Indonesia as a form of restraint, punishment, or "treatment." In the case of private institutions and healing centers, management may have an incentive to detain people as they are paid by the family. In many countries, including Indonesia, it is a profitable business.
24. State-run residential institutions and private faith-healing centers where people with disabilities are arbitrarily detained are exceptionally overcrowded and unsanitary and lack measures to support personal hygiene. In state-run mental hospitals, people with disabilities are also routinely forced to take medication, locked in isolation rooms, and subjected to involuntary treatment ranging from physical and chemical restraints to electroconvulsive therapy (ECT).[29]
25. Shackling affects a person's mental as well as physical health. A person who is shackled can be affected by post-traumatic stress, malnutrition, infections, nerve damage, muscular atrophy, and cardio-vascular problems.[30] Human Rights Watch found that those in chains had no movement beyond the length of the chains-usually about two meters: they had to bathe, defecate, urinate, and sleep on the spot where they were chained.[31]
26. In 2018, Human Rights Watch published a follow-up report documenting the important steps taken by the Indonesian government to end the practice of shackling people with mental health conditions.[32] At the time, the number of people with psychosocial disabilities who were shackled or locked up in confined spaces had dropped from nearly 18,800 to about 12,800 in July 2018, according to government data.[33] The change resulted in part from community outreach to over 16.2 million households. Despite this progress, we found that people with psychosocial disabilities continue to be detained arbitrarily in faith-healing centers, social care institutions, and mental hospitals.
27. The Indonesian government officially banned pasung under law in 1977. However, the practice remains to this day. It is estimated that 57,000 people with psychosocial disabilities in Indonesia, including children, have been shackled at least once in their lives, with approximately 15,000 still living in chains as of November 2019.[34] In many countries, including in Indonesia, Covid-19 has disrupted basic services, leading to people being shackled for the very first time or returning to life in chains after having been released.
28. According to Indonesia's 2018 Basic Health Survey, 14 percent of people with "serious" mental health conditions have been shackled at least once in their lives and about 30 percent of them have been shackled within three months of the survey.[35] According to a 2023 media report, seven people with psychosocial disabilities who were shackled died on Flores Island over the previous three months.[36]
29. The Indonesian Mental Health Association petitioned the Constitutional Court of Indonesia to review article 433 of the Civil Code to ban guardianship of people with psychosocial or intellectual disabilities. In July 2023, in an important step forward, the Constitutional Court partially granted the petitioners' request by altering the nature of guardianship of people with disabilities from mandatory to optional.
30. In her 2019 report, the UN Special Rapporteur on the rights of persons with disabilities stated that, "States must protect persons with disabilities against home-based deprivation of liberty, including home confinement, shackling and pasung."[37] In 2022, the UN Committee on the Rights of Persons with Disabilities called on the Indonesian government to "prohibit the use of shackling, seclusion and all forms of restraints in all settings, including within family settings and in social care institutions, and develop and promote non-coercive, community-based mental health supports and services."[38]
31. Human Rights Watch recommends that the Committee call on the government of Indonesia to:

• Strengthen and monitor the implementation of laws banning pasung.
• Develop a time-bound plan to shift progressively to community-based mental health, support, and independent living services.
• Create and implement a de-institutionalization policy and a time-bound action plan for de-institutionalization, based on the values of equality, independence, and inclusion for persons with disabilities.
• Conduct regular, unannounced monitoring visits to government and private social care institutions as well as faith-healing centers, with unhindered and confidential interaction with both staff and patients, and report publicly on the findings from these visits.
• Train and sensitize government health workers, mental health professionals, and staff in institutions to the concerns and needs of persons with psychosocial disabilities, and create a confidential and effective complaint mechanism for individuals with psychosocial disabilities to report abuse.

Freedom from Violence and Harassment at Work (articles 3 and 7)

32. Violence and harassment at work causes long-term psychological, economic, and physical harm to individuals, undermining their full and equal participation in the economy and society.[39] In April 2022, Indonesia's parliament passed the Law on Sexual Violence Crimes focusing on the prevention and response to sexual violence. In May 2023, the minister of manpower issued Decree No. 88 on Guidelines for the Prevention of and Response to Sexual Harassment in the Workplace, providing technical guidance to employers, unions, and other stakeholders on how best to prevent and respond to sexual harassment at work.
33. In Indonesia, according to a 2022 survey by the International Labour Organization (ILO) on violence and harassment, 71 percent of 1,175 respondents have been a victim of violence and harassment in the world of work.[40] About 69 percent have experienced more than one form of violence and harassment, with 77 percent having experienced psychological violence and 50 percent having experienced sexual violence and harassment. Despite the high prevalence, almost half the victims do not report the abuses they suffered, fearing retaliation or inaction by managers.[41]
34. The ILO's Convention on Violence and Harassment at Work (ILO Convention No. 190 or C190)[42] lays out international legal standards for preventing and responding to violence and harassment in the world of work. It requires governments to ensure comprehensive national laws against harassment and violence at work- including prevention measures, complaints mechanisms, monitoring, enforcement, and support for survivors-and laws obligating employers to maintain workplace policies against violence and harassment. The treaty covers workers, trainees, former employees, job seekers, and job applicants, and applies to both informal and formal sectors. As of November 2023, 37 countries had ratified C190, including four members of the Organisation of Islamic Cooperation.[43] Indonesia voted in favor of C190 but has not yet ratified it.[44]
35. ILO C190 extends protections to workers in the informal sector, including domestic workers. Domestic workers, most of whom are women in Indonesia, are still not recognized as workers under Indonesian labor laws.[45] They lack basic legal protections and face harassment, exploitation, and violence without access to adequate legal remedies. In addition, the ILO's Domestic Workers Convention No. 189 (C189) has not been ratified by Indonesia. The Domestic Workers' Protection Bill (PPRT), which contains significant protections for domestic workers' rights, has been stalled for 19 years in parliament.[46] Legal protections in the bill include standardized working hours, vacation days, and protection from violence and exploitation.[47]
36. Human Rights Watch recommends that the Committee ask the government of Indonesia:

• What steps has the government taken to ratify and implement ILO C190? What is the government's timeline for adoption of this convention?
• What specific measures has the national government taken to ensure effective implementation of the Law on Sexual Violence Crimes as well as Decree No. 88 of 2023?
• What is the timeline to pass the Domestic Workers' Protection Bill? How will the government ensure domestic workers' rights are upheld and protected according to international standards?
• What is the government's plan to ratify the International Labour Organization's C189 Domestic Workers Convention?

37. Human Rights Watch recommends that the Committee call on the government of Indonesia to:

• Ratify ILO C190 and ensure its effective implementation so that no worker is subject to violence and harassment at work.
• Adopt and implement the Domestic Workers Protection Bill to formally recognize domestic workers as laborers and protect them from violence and harassment at work.
• Ratify and incorporate ILO C189 on domestic workers into national laws and policies.