I. Introduction
The collapse of an authoritarian government under Soeharto in 1998 marked the beginning of the legal reforms in Indonesia. The democratic atmosphere that came with the reform opened up political spaces for women’s movement under the framework of the legal reform. One of the most important moments was in 2004 when the Parliament finally passed the Elimination of Domestic Violence Act (EDV Act) after the women’s movement struggling for it for seven years. It was followed by the new political package act[1] passed by the Parliament which gave 30% quota for women in the Parliament and the introduction of a list of priotized bills related to women’s interests under the Prolegnas (national legislation program) 2004-2009 by the new elected Members of Parliament in 2004.
The advocacy for the EDV Act was done by a network of various NGOs, groups and individuals on the basis of crimes against humanity. It is hoped that the Anti-Domestic Violence Act and the bills that are being discussed in the Parliament could solve the Violence Against Women (VAW) cases in Indonesia which has been increasing over the years. According to the 2004 Annual Report of National Commission on Women, the number of VAW increased 62.9% in 2001-2002 and 14.9% in 2002-2003 as shown in table 1. Almost half of the cases were domestic violence. As elaborated in table 2, there were 2703 domestic violence cases against women out of 5934 or 46% cases in 2003.
However, having an EDV Act is necessary but not sufficient. The implementation of the Act highly depends on a broader legal system that supports it. Thus, the struggle still continues. The Indonesian National Commission on Women has been coordinating the advocacy for an integrated criminal justice system that is responsive to handle VAW cases. Basically, the objective is to reform the legal substances, legal structures and legal cultures within the legal system through a collective action that involving the judiciary, the attorney general office, the legal professionals and the police department.[2] The reform was driven by the needs to secure women’s rights in the legal proceedings, especially as the victim and (forced by situation) perpetrator.[3]
The objective of the essay is to elaborate how the Anti Domestic Violence Act as policy was being framed? And how we link it with the human development framework? What are the changes brought by the policy and what are the limitations? On the other part, it would also elaborate how a gender awareness and responsiveness approach in an integrated criminal justice system (ICJS) for VAW Cases as a collective action from the State Machineries (the legal system in particular) in Indonesia was being articulated and implemented?
To answer the question, the essay would explain a brief introduction to discussion on gender-based violence and the influences of the human development framework, as the theoretical framework. It will follow by how the policy was being framed, in relation to the Convention on Elimination of Discrimination against Women (CEDAW) and the UN Declaration on Elimination of VAW (The UN VAW Declaration). Later on, the essay would elaborate the EDV Act –changes and limitations—, the policy environment, the collective action on ICJS for VAW cases and its problems and limitations and also problems of intersections.
II. Gender-Based Violence within the Human Development Framework
Human Development is a process of enlarging people’s choices. The most critical of these wide-ranging choices are to live a long and healthy life, to be educated and to have access to resources needed for a decent standard of living. Additional choices include political freedom, guaranteed human rights and personal self-respect. Development enables people to have these choices
(Human Development Report, 1990)
In 1990s women’s movement around the world had make enormous struggle against VAW at different level, particularly to bring forward to the public the issue of VAW which had been seen as a private matter (Nair 2001). Violence against women has been seen as an obstacle to development, because it would constrain the efficiency of projects, limiting women’s participation and denying their human rights (Carillo 1992; P. Sen 1998) It is also considered as contradiction to Human Development (HD).
The HD framework is used as a model of development by the United Nation Development Program (UNDP). Basically, it is a model of development that places the human actor at the centre stage as a response to the negative impacts from development mainstream thought developed by the neo-liberals.[4] Its objective is towards human needs and promoting human values (Carillo 1992; Truong 2006). Human development is defined as a concern with the enlargement of people’s choices; it is a process which weaves development around people, not people around development (UNDP) or a development with a human face (UNICEF). Violence against women became a central issue, because it contradicts the process of widening choices (Bunch and Carrillo 1992 cited in P. Sen 1998).
A. Gender-Based Violence
In general, violence could be explored as: structural violence, related to totalizing knowledge and planning which has a historical and cultural dimension (Escobar 1992); rights denial, related to reproductive and sexual rights (Gita Sen 2005) and violence related to the issue of masculinities (Greig et al 2000). For the purpose of this essay, the term violence refers to a combination of structural violence and violence as rights denial.
According to Escobar (1992), the rise of social planning and increased intervention of the state and society does not take into consideration the social injustice of women at the domestic level and shapes the social structure accordingly by constructing themselves as subjects. He also addressed the issue on how the knowledge possessed by rural women and indigenous groups are not recognized by the planners particularly on patriarchy, violence and social structure. Thus, the planners construct a different way of thinking and acting for conceiving social change where social change is a result of a change in human experience with proper analysis and planned changes as objects. Therefore, the challenge is how to implement this bottom-up approach in capturing personal experiences on violence into policy planning.
On the other hand, violence as rights denial elaborated by Gita Sen is looking at the social and economic subordination and oppression of women which entails the gender power relations in the household and the society where women’s identities are hidden behind the close doors of the household and violation against them is occurred. The violation of women’s body against its autonomy and freedom at the domestic level does not consider their personal concerns and demands where growing inequalities of wealth, property inheritance and unequal distribution of income makes women prone to domestic violence. Moreover, some cultural practices may lead to acts of VAW such as circumcision and early marriages and also, ideology factor plays an important role.
B. Human Development Framework
The HD Framework was developed by Al-Huq,[5] Martha C Nussbaum and Amartya Sen, where the Sen’s and Nussbaum’s Capabilities approach form its fundamental arguments. Sen sees capabilities as endowments which linked to the causes of poverty. He argues that by focusing on capability would give more information on the options and choices available to the person. While Nussbaum links the capabilities with the human rights and social justice related to the VAW. She introduces 10 basic human capabilities as “being able to” which are fundamental human entitlements or rights that should be adopted in the constitutions of all nations (Nussbaum 2005). It is a way of assessing substantive justice which goes beyond written legal documents. While Nussbaum is entrusted the state to do the task in securing such entitlements through constitution or legal-binding documents (a top down approach), Sen on the other hand is more focusing on the household-community relationship in the form of a collective action where rights should be the goal of a society (a bottom-up approach). However, these combination leads to the implementation of HD framework which focuses on democratizing public spaces, cultural and juridical reforms to emphasize human creativity, participation, accountability or to put it simply, a humanistic planning.
C. VAW within the Human Development Framework
In relation to VAW, Nussbaum argues that VAW undermines the interconnected 10 capabilities (Nussbaum 2005) which summarized as follows:
1. Life
Women lose their lives through VAW including at the hands of spouses or partners:
2. Bodily health and integrity
Violence have a tremendous impact on health even when they are not lethal, i.e rape has a major impacts to woman’s physical and emotional health.
3. Bodily integrity
Bodily integrity includes ‘‘being able to move freely from place to place’’ and requires ‘‘having opportunities for sexual satisfaction and for choice in matters of reproduction’’. Sexual violence annul this capability.
4. Senses, imagination, thought
VAW and the fear of it cripple imagination, thought, and the enjoyment of the senses, as well as hindering access to education, to the freedom of speech, and to artistic creation. The threat of bodily violence is a way in which women have for centuries been silenced, prevented from using their thought and imagination to stake out a place in the world.
5. Emotions
VAW hinders women’s emotional development by fear and anxiety. Instead of anger and rebellion, women feel guilt and fatalism.
6. Practical reason
VAW creates fears of violence and thus, women could not form a conception of the good and engaging in critical reflection about the planning of her life.
7. Affiliation
The threat of violence limits women’s capability to form affiliations. In the family, actual violence deforms marital love and/or the relationship of female children to their parents and their surrounding world. In larger societies, it limits their social and political participation.
8. Other species and Play
By affecting mobility and independence, VAW affects women’s ability to have a meaningful relationship to the world of nature and to woman’s ability to enjoy leisure, laughter and play.
9. Control over one
It influences woman’s ability to participate in politics, employment and to control both land and movable property.
Nussbaum defines three types of capabilities which can be seen as the basic capabilities, the internal capabilities and combined capabilities (internal capabilities and external environment).[6] Public policy should promote internal capabilities, and make available the external institutional and material conditions.
[1] The new political package acts consist of Political Parties Act (Law No. Year ), The Structure and Organization of (National and Local) Parliament Act (Law No. Year ) and General Election Act (Law No. Year)
[2] The Indonesian National Commission on Women Annual Report 2004.
[3] The term “forced by situation” perpetrator refers to those women who commit a crime caused by frustration of having abused by her spouse for a long time.
[4] The neo-liberal reforms which gives priorities to trade has impacts on the poor and vulnerable women, children, minority groups, resilience of society. It measures the progress of development based on the economy fares as reflected in Gross National Products (GNP), while on the other hand, the HD Development measures the quality of life as how well people are doing as reflected in their Human Development Index (HDI).
[5] Four pillars from Huq are equity as equality of opportunities, productivity, sustainability, empowerment. He died in 1990s during his works for UNDP.
[6] Basic capabilities includes innate qualities necessary for more advanced capability (practical reason and imagination). Internal capabilities are built on pre-existing capabilities through training, education (socialization and structured educational environment).
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