Indonesia: Submission to the UN Committee on the Rights of the Child

We write in advance of the 98th pre-session of the Committee on the Rights of the Child (“the Committee”) and its review of Indonesia. This submission focuses on mandatory hijab regulations, Indonesia’s new criminal code, the right to education, and the rights of children with disabilities.

Mandatory Hijab Regulations (articles 2, 14, 16, 24, and 28)

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.

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.[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 girls via Facebook and WhatsApp.

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]

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]

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 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]

In a bid to overcome the Supreme Court ban, in September 2022, the education minister 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]

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 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 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 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, 6, 16, 17, 24, and 28)

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 privacy.[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 girls, in particular their rights to comprehensive and inclusive sexual and reproductive health education and information. They also negatively impact girls’ ability to protect their health and to make informed choices about their bodies. 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 girls’ health and lives at risk.[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 girls and include provisions such as curfews specifically targeting females, female genital mutilation, and mandatory hijab dress codes.[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 children.

Right to Education (article 28)

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 respectively in 2020.[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

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]

For example, a student in a small village in North Sulawesi said 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]

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

As of November 2023, Indonesia was contributing 2,452 troops to United Nations peace operations,[23] including in the Democratic Republic of the Congo and the Central African Republic, both countries where attacks on education have been documented as a problem.[24] 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.”[25]

The Safe Schools Declaration[26] 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. [27] As of January 2024, 119 states have endorsed the declaration,[28] including 31 fellow members of the Organisation of Islamic Cooperation. However, Indonesia has not endorsed the declaration.

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?

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.

Rights of Children with Disabilities (articles 19, 23, 37, and 39)
In Indonesia, many people with psychosocial disabilities (mental health conditions), including children, are shackled by their families or placed in overcrowded and unsanitary institutions against their will, due to widespread stigma and lack of community-based support, including mental health services. Human Rights Watch conducted research in Indonesia documenting these and other abuses between 2014-2021.[29]

The practice of shackling, known locally as pasung (meaning to “tie” or “bind”), refers to the physical restraint of children and adults with real or perceived psychosocial disabilities, within or just outside the home. Pasung is typically practiced by families who believe that the child with the psychosocial disability is possessed by evil spirits, or are worried that the child might hurt themselves or others, or might run away.

Pasung in Indonesia consists of chaining people or locking them in a room, shed, cage, or animal enclosure (including chicken coops, pig pens, and goat sheds) for periods ranging from hours to days, to years. It can also be a temporary measure that is used to restrain a child with a psychosocial disability for shorter periods, while the family goes out to work or when the child is having a crisis.[30]

Research by Human Rights Watch globally has found that children who are shackled can be affected by post-traumatic stress, malnutrition, infections, nerve damage, muscular atrophy, and cardiovascular problems.[31] In Indonesia, children who were shackled had no movement beyond the length of the chain—normally about two meters, having to bathe, defecate, urinate, and sleep within the radius where they are chained.[32]

In 2015, the UN Special Rapporteur on torture stated that shackling “unequivocally amount[s] to torture even if committed by non-State actors under conditions in which the State knows or ought to know about them.”[33]

Pasung is also practiced in faith healing centers and state-run residential institutions as a form of restraint, punishment, or “treatment.” In the case of private institutions and healing centers, management may have an incentive to detain children as they are paid by the family. In many countries, including Indonesia, it is a profitable business.

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 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.”[35]

In 2020, Human Rights Watch published a global report noting the positive steps taken by the Indonesian government to tackle shackling, including a national outreach and awareness raising program reaching over 48 million people.[36] Nonetheless, Indonesia’s national basic health survey (Riskesdas) showed that in 2018, 12,800 people, including children, were still shackled or locked in confined spaces (down from 18,800 in 2016).

Institutionalization

The institutionalization of children with disabilities is widespread in Indonesia and has already been noted as an issue of particular concern to this Committee.[37]

Under Indonesian law, it is relatively easy to involuntarily admit a person with a psychosocial disability to an institution. The Mental Health Act (2014) allows a family member or guardian to admit a child or adult with a psychosocial disability without their consent to a mental health or social care institution without any judicial review. Children placed in residential care institutions have the right to a periodic review of the treatment they received, but Human Rights Watch found this not to be the case, with many institutions not even having formal admission or discharge processes.[38]

Detention in faith-healing centers is also arbitrary. For example, Haji Hamdan Saiful Bahri, an Islamic faith healer who runs Kampung ChiLanjang, a private healing center in Cianjur, described how he diagnosed a 13-year-old boy before admitting him to his institution for religious treatment. Bahri said: “I touched his chest, head, and legs to do photo sonogram [X-ray] to find out his illness. He started screaming so I knew he was depressed.” The process for discharge was similarly arbitrary. “When the [body] heat becomes cold, they’re ready to leave,” Bahri said. “When I take them outside to the market or to play football and the person feels cold, it means they’re cured.”[39]

State-run residential institutions and private faith-healing centers where children with disabilities are arbitrarily detained are exceptionally overcrowded and unsanitary and lack measures to support personal hygiene. Residents commonly lack access to a toilet and are forced to eat, sleep, urinate, and defecate in a radius of no more than one to two meters. In state-run mental hospitals, people with disabilities, including children, 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).[40]

Human Rights Watch found that children were being subjected to “unmodified” ECT at one institution visited, Grogol Mental Hospital in Java.[41] This was done without any apparent consent from the patient or their families, and the ECT consent form at the hospital did not even have a space for a patient’s or guardian’s signature. The child’s consent and preferences are not taken into account in function of their evolving capacity. Then-UN Special Rapporteur on torture Manfred Nowak noted that unmodified ECT (that is, administered without anesthesia, muscle relaxants, and oxygen) is an unacceptable medical practice that may constitute torture or ill-treatment, which can lead to cognitive defects and loss of memory.[42]

The World Health Organization Resource Book on mental health, human rights, and legislation states that “there are no indications for the use of ECT on minors [defined as anyone below 18], and hence this should be prohibited through legislation.”[43]

Human Rights Watch also found instances of institutions routinely placing children in enforced seclusion, usually as a form of punishment or disciplinary measure. In hospitals, children have separate isolation rooms within the children’s ward, but in social care institutions, children were found to share rooms with adults, with limited or no oversight.[44] This leaves children at unacceptable risk of harm and abuse and represents failure by the institutions to adequately protect them.

At all six hospitals visited by Human Rights Watch, children with psychosocial disabilities were subject to physical restraint during a crisis, a fight, or if they resisted while being injected with medication. The use of physical restraints is permissible under the Mental Health Act (2014), despite the UN Special Rapporteur on torture having previously stated that “there can be no therapeutic justification for the use of… prolonged restraint of persons with disabilities… [which] may constitute torture or ill-treatment.”[45] The current Special Rapporteur on torture has noted that the restraint of an individual with psychosocial disabilities in particular, even for a short time, may constitute torture or inhumane treatment.[46]

Human Rights Watch recommends that the Committee call on the Indonesian government to:

• Strengthen and monitor the implementation of laws banning pasung.
• Recognize institutionalization based on the existence of a disability as a form of discrimination and without consent of the individual as a form of arbitrary detention.
• Ensure that children who have been released from state and private institutions have access to psychosocial support and social services, including specialist child psychologists and support services.
• Ban all forms of involuntary treatment, including ECT, without the person’s free and informed consent and in all circumstances involving children. Explicitly prohibit the use of seclusion and prolonged restraint.
• 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 children 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, including children, and create a confidential and effective complaint mechanism for individuals with psychosocial disabilities to report abuse.
• Conduct extensive public awareness and information campaigns, including through the media, religious groups, and schools, on mental health conditions, the rights of children with disabilities, and alternatives to institutionalization and restraint.