Deliverable 4.

30 November 2020

Feedbacks on
Baseline Study on Access to Remedy for Business and Human Rights Cases with
Gender Perspective
By Prabianto Mukti Wibowo

Background

It is widely documented that women and girls experience adverse impacts of

business activities differently and disproportionately. They may also face additional
barriers in seeking access to effective remedies. Moreover, because of intersecting and
multiple forms of discrimination, different women and girls may be affected
differently by business activities in view of their age, colour, caste, class, ethnicity,
religion, language, literacy, access to economic resources, marital status, sexual
orientation, gender identity, disability, residence in a rural location, and migration,
indigenous or minority status. Therefore, measures taken by states and businesses to
implement the UN Guiding Principles on Business and Human Rights (UNGPs) in the
form of laws, regulations, policies, plans, practices and decisions must be responsive
to gender-differentiated impacts of business activities.1

Access to effective remedy is a core component of the UN Guiding Principles on

the Business and Human Rights (UNGPs). Guiding Principle 1 requires States to take
"appropriate steps to prevent, investigate, punish and redress" business-related human
rights abuses within their territory and/or jurisdiction. Guiding Principle 22, in Pillar
II, provides that where "business enterprises identify that they have caused or contributed
to adverse impacts, they should provide for or cooperate in their remediation through legitimate
processes". Guiding Principle 25, in Pillar III on access to remedy, reminds States to
"take appropriate steps to ensure" that those affected by business-related human rights
abuses within their territory and/or jurisdiction "have access to effective remedy".2

The UNGPs envisage the following three types of mechanisms to provide access
to effective remedy in business-related human rights abuses: (1) state-based judicial
mechanisms, (2) state-based non-judicial grievance mechanisms, and (3) non-state-
based grievance mechanisms.3 State-based grievance mechanisms may be

1
https://www.undp.org/content/undp/en/ home/librarypage/democratic-governance/gender-dimensions-
guiding-principles-on-business-n-human-rights.html
2
https://www.ohchr.org/EN/Issues/Business/Pages/AccessToRemedy.aspx#:~:text=
The%20UNGPs%20envisage%20the%20following,%2Dstate%2Dbased%20grievance%20mechanisms.
3
Ibid.
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administered by a branch or agency of the State, or by an independent body on a

statutory or constitutional basis. Examples include the courts (for both criminal and
civil actions), labour tribunals, national human rights institutions, and ombudsman.
As the Guiding Principles set out, state-based judicial remedy includes: “apologies,
restitution, rehabilitation, financial or non-financial compensation, and punitive
sanctions (whether criminal or administrative, such as fines), as well the prevention
of harm through, for example, injunctions or guarantees of non-repetition”. These
forms of remedy are relevant – or have equivalents in the case of punitive actions –
also in the context of non-judicial mechanisms, with the exception of criminal
sanctions.

State-based non-judicial remedy becomes an important component of the

Business and Human Rights framework. A good non-legal recovery system has
effective criteria for handling non-legal complaints. This mechanism can be provided
by the government and the company. Another option is a joint grievance mechanism
between companies and trade unions or multi-stakeholder forums. An example is a
framework agreement for grievance handling mechanisms within the company or at
the forum level in the industrial sector.

Non-state-based grievance mechanisms (NSBGM) have been identified as

mechanisms by which individuals, groups or communities, whose human rights have
been adversely impacted by business activities, or their legitimate representatives, can
seek remedy with respect to those adverse impacts. The distinguishing characteristic
of the NSBGM with respect to other mechanisms is, that the state is neither involved
in establishing or setting the framework for nor is actively intervening into the
operations of the grievance mechanisms, nor is the grievance mechanism in any way
directly linked to the legal and judicial system of a particular country.4

In the UNGPs, the term ‘remediation’ is used to refer to the process or act of
providing remedy. At its core, the concept of remedy aims to restore individuals or
groups that have been harmed by a business’s activities to the situation they would
have been in had the impact not occurred. Where this is not possible, it can involve
compensation or other forms of remedy that try to make amends for the harm caused.

4
https://www.ohchr.org/Documents/Issues/Business/ARP/ManchesterStudy.pdf

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This should not be confused with ‘remediation’ in the context of social audits, where
the concept includes actions to prevent a non-compliance from recurring.5

Access to Effective Remedy

1. Gender considerations for access to effective remedy

The right to remedy is considered not only a human right per se but also a pre-
requisite for the enjoyment of other human rights. A gender analysis is therefore
necessary to ensure that women who are victims of business-related human rights
abuses have access to effective remedies. The third pillar of the UNGPs is dedicated
to access to effective remedies. This includes access to judicial and state-based non-
judicial remedies, as well as access to operational level grievance mechanisms. In
national UNGPs implementation, states should take care to ensure the accessibility of
each of these types of avenues for women, as well as addressing any gender-related
factors in setting up and administering these remedy channels for business-related
complaints and instances.

The gender-specific application of the state obligation to provide mechanisms of

accountability for violations of economic and social rights (including courts and quasi-
judicial bodies) still requires elaboration. As noted by the UN Working Group on the
Elimination of Discrimination Against Women in Law and Practice, for instance, the
effective elimination of discrimination against women in economic and social life
requires gender-responsive and effective accountability systems. Although there have
been some judicial decisions on discrimination against women in economic and social
life at the international and national levels, the numbers are disturbingly low.

2. Barriers to judicial remedy and access to justice

The marginalisation of women in many contexts, stemming from entrenched

gender-based power asymmetries, means that their barriers to accessing justice are
frequently further increased. Normative frameworks for advancing women’s rights
have been developed and have progressed significantly over the past decades.
However, studies show that women around the world continue to have little or no
access to formal justice systems, and much less the ability to hold large business actors
to account.

5
https://bisnisdanham.id/business-respect-for-human-rights-remediation-and-grievance-
mechanisms/?lang=en

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Gender norms, interfering with women’s leadership and agency, along with
their disproportionate unpaid care responsibilities, undermine women’s voice, time
and freedom of movement to participate in remedial processes. Gender inequalities
in access to education also means that women frequently have lower levels of literacy,
and awareness of rights, laws and available mechanisms for redress – whether judicial
or non-judicial, and how to access them. Furthermore, the general absence of gender
sensitivity within judicial, non-judicial and company-based grievance mechanisms
(and among the state or business actors overseeing them) means that women’s specific
concerns – whether immediate or long-term – are often overlooked.

Financial costs of participating in consultations and grievance processes, and the

lack of legal aid, can be a huge obstacle for women accessing justice, given their
socioeconomic marginalisation in many contexts. Moreover, women within
marginalised groups can encounter additional legal and structural barriers in
accessing judicial mechanisms. These include, for instance, migrant women, displaced
or indigenous women – especially if they only communicate in their own native
language. Women working under insecure (or non-existent) work contracts often have
to put their jobs and livelihoods at risk if trying to access remedy.

The threat of gender-based violence, perpetrated by business or state actors, and

the stigma associated with sexual and gender-based violence, can deter women from
seeking redress. Even where it is possible, it can be particularly difficult for women to
access redress, due to the potentially sensitive nature of the issues, such as
reproductive rights. In certain industries or settings where the majority of the workers
are women while most supervisory and management positions are held by men,
access to remedy can be impeded as women may be reluctant to come forward to
report even the most egregious abuse or sexual harassment. The lack of female
representation among management can also mean that women’s needs are not
properly articulated and addressed – such as requests to improve quantity and quality
of on-site childcare, or the desire of female workers to access transportation from their
work place.

The increasing complexity of business operations (operating in different

countries, through different actors) often requires remedies that reach beyond
national boundaries, and an ability to investigate complex corporate structures,
finances and relationships. Thus, civil remedies, such as tort law, may be the only

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option in some of these cases. However, this area of law may not always be best suited
to addressing gender discrimination, inequality and human rights abuses.

There are also concerns about remedy for rights violations not taking into
account the gender dimensions within households. For instance, changes in
household finances can cause increasing domestic violence due to disagreement about
priorities for spending the funds. When payment of compensation or benefits are paid
out by companies, these often go to the man of the household, or on behalf of their
families and communities. This denies women access to, and control over, the
financial benefits of, for instance, large-scale industry projects. Instead, it encourages
women’s economic dependence on men – exacerbating existing inequalities.345
Settlements with companies, or profit-sharing agreements, that do not take into
account the gender dimensions of how the money will be distributed can also
indirectly contribute to increased levels of violence against women.346

3. Gender in non-judicial remedies

All non-judicial grievance mechanisms should meet the effectiveness criteria set
out in the UNGPs, being: legitimate, accessible, predictable, equitable, transparent,
rights compatible, a source of continuous learning, and based on dialogue and
engagement. Non-judicial grievance mechanisms include, for instance,
intergovernmental grievance mechanisms (such as mechanisms linked to UN-treaty
based and charter-based bodies, the ILO’s Committee on Freedom of Association, and
National Contact Points, National Human Rights Institutions, mechanisms associated
with the Development Finance Institutions (such as the Inspection Panel of the World
Bank and the Compliance Advisor/Ombudsman of the IFC), sectoral and multi-
stakeholder grievance mechanisms (such as the Fair Wear Foundation), and
operational-level grievance mechanisms (established by businesses themselves).

In its 2018 report to the UN General Assembly, the UNWG explain how women’s
experiences and expectations should inform the provision of the effective remedies, in
all types of remedial mechanisms, in line with the UNGPs. It states that women’s
experiences should be relevant in three interrelated ways: ‘how corporate activities
may affect women differently, including by reinforcing or exacerbating existing
gender discrimination or exacerbating existing gender discrimination by adopting
gender neutral policies; what additional barriers women my face in gaining access to
effective remedies to redress human rights abuses; and what remedial responses
women may need to achieve substantive justice in an era in which the private sector

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in playing a dominant role.’ The UNWG thus states that it is ‘critical for both States
and business to engage with women by applying gender lens while implementing the
Guiding Principles, including pillar III.’

According to IWRAW-Asia Pacific and Landesa, designing effective, gender-

responsive remedies requires specific attention to women’s social contexts and legal
rights status. For instance, company-based grievance mechanisms can ensure that
women’s land rights and interests are captured, although their rights are generally
more likely than men’s to be unregistered, informal and contested. Establishing such
remedies will require local knowledge and assistance and involve consultations with
both men and women in the affected communities. Moreover, there have been cases
of women reporting allegations of rape by companies’ private security firms, with
remediation packages falling short of international standards – including the UNGPs.

Operational-level grievance mechanisms should thus be independently

reviewed, and the right to access court and obtain judicial review or appeal decisions
should be facilitated. Stakeholders have also argued that state parties should ensure
that violence against women should not be addressed by non-judicial mechanisms, in
particular operational-level grievance mechanisms, but should be sanctioned under
criminal law.

Available Policies and Mechanisms for Access to Remedy in Indonesia

In Indonesia, there are several laws that regulate the access to remedy for victims
of Human Rights violation, some of which are as follows: Law Number 21 of 2007 on
Eradication of Human Trafficking Crime; Law Number 40 of 2008 on Elimination of
Race and Ethnic Discrimination; Law Number 32 of 2009 on Environmental Protection
and Management; Law Number 25 of 2007 on Investment; Law Number 13 of 2006 on
Protection of Witness and Victim jo Law Number 31 of 2014 on Amendment of Law
Number 13 of 2006 on Protection of Witness and Victim.6

Based on the available laws and regulations, several mechanisms dealing with
business-related human rights abuses have been established and implemented. Some
of the established mechanisms are described as follow:7

6
KOMNAS HAM and ELSAM, 2017. National Action Plan on Business and Human Rights. Downloaded from
https://globalnaps.org/wp-content/uploads/2017/11/nap-indonesia.pdf
7
Waagstein R, Patricia, 2017. Business and Human Rights in Indonesia: From Principles to Practice. the Human
Rights Resource Centre, Jakarta.

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(1) State-based judicial mechanisms

a. Courts

In general, the court’s role can be seen as twofold. First, it deals with
questions of interpretation of law. Hence, the courts, especially the
Constitutional Court and the Supreme Court, can directly develop the
application of human rights principles to business. Second, the courts, under
their adjudicatory function, rule on business-related human rights cases brought
before them. The civil, criminal, and administrative courts, as well as the more
specialised courts, may assess the responsibility of a corporation for failure to
meet its legal obligations and provide remedies to those aggrieved.
Unfortunately, there is no comprehensive data on how many cases relating to
business and human rights have been dealt with by each court. Limited statistics
found at the Supreme Court website do not segregate cases in such a manner as
would indicate the number of controversies that took place in a business context
or involved a business entity as a party.

b. Special Courts

With regard to special courts, the Human Rights Court, is mandated to

handle cases involving gross violations of human rights like genocide and crimes
against humanity. This institution, however, has never dealt with abuses
committed by corporation or corporate personnel. Instead, it currently focuses
mostly on violations by state actors.

There is also the Industrial Relations Court (also known as Labour Court),
which directly deals with various industrial issues including disputes
concerning rights, interests, termination, and those concerning unions (including
inter- and intra-union disputes, and disputes between workers unions and
employers). Upon receipt of cases, the Industrial Relations Court will call the
parties as well as the Ministry of Manpower and Transmigration for mediation
and/or reconciliation. Disputes that fail to be resolved can be referred to a panel
of judges consisting of one trade union-nominated ad hoc judge, one employer-
nominated ad hoc judge and one experienced career judge for merit examination.
Following a judgment from the Court, a party may appeal their case to the
Supreme Court. This mechanism has often been utilised by workers and
employers to obtain remedies concerning labour rights.

(2) State-based non-judicial mechanisms

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a. The Indonesian National Human Rights Commission

The Indonesian National Human Rights Commission (KOMNAS HAM) is

the primary monitoring body tasked with initiating and investigating human
rights abuses. The Human Rights Law provides a statutory basis for it to monitor
human rights implementation in Indonesia. Based on its mandate, KOMNAS
HAM is obliged to receive complaints from victims of human rights violations,
investigate them, and provide recommendations to related authorities. In certain
situations, it can also act as a mediator, or facilitate and observe the mediation
among parties to a conflict. KOMNAS HAM addresses the issue of business and
human rights through education, investigation and mediation.

b. Public Communication Service

The Public Communication Service is a mediation mechanism provided by

the National Action Plan on Human Rights committees (RANHAM committees),
which are governmental committees established at the national, provincial, and
city level to implement the National Action Plan on Human Rights.59 The 400
local RANHAM committees consist of representatives of ministries and local
governments. The Public Communication Service receives complaints from the
victims of human rights violations, calls parties for mediation, and issues
recommendations. As this committee is not a judicial institution, its
recommendations are not binding; parties abide by them on a voluntary basis.

The development of this service is cantered on the Indonesian

government’s commitment to provide a simple, integrated, effective, fair, and
low-cost alternative dispute settlement mechanism. Moreover, the huge number
of cases dealt by the courts as well KOMNAS HAM demands alternative ways
to provide access to justice and remedies to the victims of human rights
violations. Despite various criticisms with regard to its effectiveness, the service
has been utilized by many stakeholders in certain regions.

c. The Corruption Eradication Commission

KPK is an independent body established by the 2002 Law No. 30, with the
mandate to investigate and prosecute corruption cases. Although, the
Corruption Eradication Commission (KPK) is not explicitly mandated to hear
human rights cases, corruption does impair the enjoyment of human rights.
Therefore, KPK contributes to the prevention of human rights violations as well

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as provides an avenue for redress to those whose human rights are affected as a
consequence of corrupt practices.

d. Ombudsman

The Ombudsman receives complaints from individuals and/or legal

persons concerning forgery, conspiracy, intervention, undue delay,
incompetence, abuse of power, impartiality, corruption, illegal possession, and
misleading practices of public and private institutions in providing public
services. Based on data released by the office, since its establishment, it has dealt
with various cases involving state-owned corporations, institutions granting
business licences, and the National Land Agency. Some of these cases have
implications on the enjoyment and protection of human rights. For instance, the
National Land Agency, in unlawfully granting title to particular lands, can cause
the violation of the human rights of the community living on that land.

e. Commission for the Supervision of Business Competition

The Commission for the Supervision of Business Competition (KPPU) is an

independent authority established to supervise the implementation of the Law
concerning the Prohibition of Monopolistic Practices and Unfair Business
Competition. Independent from the influence and control of the Government
and other parties, the KPPU’s duties includes drafting implementing
regulations, conducting examinations of any party alleged to have violated Law
Number 5 Year 1999, issuing binding decisions, and imposing legal sanction(s)
on any violator of the law. KPPU’s supervision aims to give shape to an efficient
Indonesia economy through the creation of conducive business climate that
ensures equal opportunities for all business actors. The KPPU also seeks, for the
same purpose, to prevent monopolistic practices and/or unfair business
competition.

f. Adat or Customary Law

Each indigenous/traditional group in Indonesia has a system of adat laws

and traditions, developed over time to meet the individual needs of the
community. These laws and traditions are passed, implemented, and monitored
by leaders of each group. In Indonesia, adat or customary law is officially
recognised as part of the legal system. In addition to providing norms to be
obeyed in societies preserving and applying such law, it also offers a mechanism
to settle disputes.

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g. Mediation and Arbitration

The 1999 Law No. 30 on Arbitration and Alternative dispute settlement

clearly states that parties to a conflict can settle their dispute outside the judicial
system through consultation, negotiation, conciliation or usage of expert
opinion.70 Parties to a conflict can also refer their case to an independent
mediator, which could be a private entity or a state institution such as KOMNAS
HAM.

(3) Non-state mechanisms

a. Company-Level Grievance Mechanisms

Understanding of grievance mechanisms appears to be under developed in

Indonesia. Nonetheless, there are useful examples of complaint systems at the
company level that businesses in Indonesia could consider in developing their
grievance mechanisms. One such system is BP Indonesia’s Community
Grievances Handling Procedure. This initiative aims to address the complaints
of those affected by the Tangguh LNG Project, a multinational project involving
the development of six gas fields in Bintuni Bay, West Papua.

Asia Pacific Resources International Limited (APRIL) Indonesia, a fibre,

pulp and paper manufacturer, also developed a process for resolving land claims
disputes. The Land Dispute Resolution Protocol is based on the principle of
“Free, Prior and Informed Consent.” In 2007, the village of Lubuk Jering in Riau
province was chosen as the development site for establishing this land-dispute
resolution protocol and can be used as basis to reflect on what worked well and
any other lessons learned.

Points for Consideration in Providing Access to Effective Remedy

As the UN Guiding Principles on Business and Human Rights (UNGPs) explain,

even where Governments and business do their best to avoid negative impacts, these
may still result. Therefore, affected people need to be able to seek redress through
effective judicial and non-judicial grievance mechanisms. To provide access to
effective remedy with gender perspective requires a thorough considerations,
including:

(1) Address barriers to judicial remedies that have particular relevance to women –
such as access to legal aid, physical accessibility (taking into account women

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with disabilities but also rural women and women living in remote areas),
language and literacy barriers.

(2) Periodic monitoring of BHR data within the judicial system – i.e. periodically
and systematically collect data to understand how many cases per year deal with
BHR, including details on how these were addressed from a women’s rights
perspective.

(3) Adjust domestic laws to enable the hearing of business-related human rights
complaints, including addressing common barriers such as burden of proof.

(4) Implement capacity building for the judiciary on business-related human rights
complaints, including any relevant gender dimensions – such as challenges
around sexual and gender-based violence cases or discrimination in land rights
that inhibit women’s access to judicial remedies.

(5) Make provisions for hearing extraterritorial human rights claims in home
countries, particularly in instances where access to justice in host countries is
limited or has been exhausted.

(6) Mandate the national human rights institution and/or equality body to address
gender and business-related human rights complaints – including through the
application of multiple mandate areas, such as investigations, complaints
handling and education.

(7) Provide guidance to industry on the compliance of operational-level grievance

mechanisms with the eight effectiveness criteria of the UNGPs, including
specific provisions to ensure that processes and outcomes of such mechanisms
are compatible with international human rights law and do not prevent access
to judicial remedies.

(8) Involve women in the design and implementation of non-judicial grievance

mechanisms for business and industry to ensure that gender-related aspects are
adequately addressed.

(9) Reflect awareness of the particular challenges faced by specific groups of

women, e.g., indigenous women, in business-related human rights complaints –
such as by requiring women’s participation in the hearing and resolution of
complaints regarding land use agreement implementation.

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(10) Address barriers to access to justice experienced by women – such as by

providing legal access to individuals despite their nationality, residence or
migrant status, and allow class action.

(11) Enable access to remedy for women and work specific grievances – e.g., the
burden of proof should lie on the employer in cases of dismissal of pregnant or
nursing workers, employers should be obliged to request legal or administrative
approval for dismissal of a pregnant or nursing worker.

(12) Assist and require companies to develop clear guidance on their grievance
resolution expectations of suppliers, in particular in female dominated
industries.

(13) Encourage companies to work with diverse and independent civil society actors,
human rights defenders and national human rights institutions, and use them as
access points to BHR-related grievances.

(14) Strengthen political commitment of the government to properly execute and

respect any outcome concluded by the authorized bodies/institutions.

(15) States are also expected to prepare legislations that are capable to ensure
individuals, including business enterprises, to prevent as well as to avoid
causing or contributing harm to the enjoyment of human rights.

(16) The allocation of sufficient budgets for the compensation to the victims, as well
as for the continuity of remedy mechanism.

References

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