UNAIR NEWS – The Dean of Faculty of Law (FH) UNAIR, Iman Prihandono, Ph.D., conducted research for the submission of the Indonesian Law Review, a journal by Universitas Indonesia. Collaborated with Nadirsyah Hosen from Monash University and Keely Boom from the University of Wollongong, the research topic was on the authority of Komnas HAM (the National Commission on Human Rights) in seeking justice for forest fire victims. To explore the substance of this research, the editorial team conducted an interview with Iman on Monday, October 11, 2021.
Iman said that forest fires in Indonesia triggered by corporate activities to clear land on a massive scale had caused the haze crisis in Southeast Asia. This crisis is a form of human rights violations for the victims, such as the right to life, the right to a good and healthy environment, and the right to health. He added that this scenario still fails to be covered by the judicial mechanism, and victim services are still not accessible.
“Komnas HAM can act as a non-judicial complaint agency for victims of the haze crisis and against corporate violators. However, there are significant obstacles for Komnas HAM to carry out investigations, mediation, and recovery for the victims effectively. This is a weakness in the legal framework and a decline in public confidence regarding the integrity of the institution,” said the Business and Human Rights expert.
There are three weaknesses of the legal framework noted in Iman’s research. First, Komnas HAM is unable to issue binding decisions even though the agency’s investigations have noted that human rights violations have occurred. The second is the limited ability to collect evidence in the investigations. Komnas HAM cannot call witnesses with binding capacity and without seeking assistance from the court. Lastly, Komnas HAM cannot maintain its jurisdiction because its authority may collide with other institutions. Even though there is theoretical equality of institutions, Komnas HAM does not have legal immunity like other law enforcers.
“Theoretically, Komnas HAM has jurisdiction over corporations according to its mandate. They can also assist the victim’s recovery in court through the delivery of amicus curae. However, this often proves to be ineffective due to its non-binding nature, and it is also exacerbated by the lack of transparency in the performance of Komnas HAM in recent years,” said the alumnus of Macquarie University.
Since the case is multiplied by the haze crisis, Iman noted that Komnas HAM had shown an interest in resolving this issue. One of the efforts is the National Action Plan of Komnas HAM and ELSAM on Business and Human Rights issued in 2017. However, he said that it is crucial to follow up on these plans, especially from a legislative perspective, to effectively promote human rights in the haze crisis and human rights violations involving other corporations.
In the context of international human rights law, one of the most important non-judicial remedies is the national human rights institution (NHRI) because it can bridge the government and the community regarding the promotion of human rights. Iman added that the existence of NHRI has also been formalized in the Paris Principles, and the equivalent of this NHRI in Indonesia is Komnas HAM.
“Substantial changes at the level of the law are urgently needed to give Komnas HAM jurisdiction and coercive power for the realization of an effective non-judicial remedy mechanism. Continuous communication is needed among Komnas HAM, the government, civil society organizations, and academia in order to formulate the strengthening of the Komnas HAM mandate, especially concerning human rights violations by corporations,” he concluded.
Author: Pradnya Wicaksana
Editor: Nuri Hermawan
