INDONESIA: Refusal to amend the law on torture lends support to its widespread use by the State officers

Indonesia signed the International Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment on the 23 October 1985 and ratified it on the 28 October I 998 by the Law No. 5/1998.

Since its ratification, there have been numerous calls by the CAT Committee- for instance in its “Concluding Observations: Indonesia” (01/11/2002. A/57/44, paragraphs 36-46)- and other civil society organizations for the amendment of domestic legislation as it has been found to be inadequate and ineffective in curbing torture in Indonesia. The first in its long list of recommendations by the CAT Committee is for the Indonesian Government to “…Amend the penal legislation so that torture and other cruel, inhuman or degrading treatment or punishment are offenses strictly prohibited under criminal law”.

Despite the fact that this recommendation was made in 2002, the state of Indonesia has deliberately avoided taking any responsible action, thereby denying redress to victims of torture, granting impunity to the perpetrators closing all doors to any preventive action. In fact, judging from the sharp increase in the use of torture and the glaring refusal by the State either to recognise it or to take punitive action, it appears that the State is deliberate in its refusal to amend its legislative constitution.

This is confirmed by the two following reasons:

1. The State has adamantly refused to adopt the definition of torture found in the Convention Against Torture. Instead, torture is defined as “… every act conducted intentionally, which causes severe pain or suffering, whether physical or mental, in order to obtain confession or information from somebody or a third person, punishing him for an act he or a third person has committed or is suspected of having committed; or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind; when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

The main problem is relating to the comment made in the next article, namely article 21, where it adds that “torture should be conducted not only by public authorities, but also by individuals”. The state in its eagerness to demonstrate that its definition is far superior to that which is found in the definition of CAT Convention, has downplayed the gravity that is attached to the crime itself. Indonesia has clearly failed to recognize the fundamental difference between a crime committed by an ordinary person and by someone who represents the state. This seeming oblivion or deliberate attempt  to confuse an important aspect of the Convention defeats the very purpose for which the Convention was promulgated; namely to articulate the gravity of the crime committed by actors of the state. By adding the comment “any person”, the specificity of the crime has been subjugated to the level of “assault”. By confusing “assault” and “torture” as one and the same, the state has deprived the gravity attached to the latter with the corollary of the punishment itself being lessened. Having reduced torture to ‘assault’, the state has conveniently discarded its responsibility to put into place the adequate legal, administrative and other measures to provide justice to the victims, punish the perpetrators and adopt preventive measures.

2. The addressing of the issue of adequate legal mechanisms both to prohibit and punish the perpetrators is apparently incorporated into the National Penal Code. What is paradoxical is that this National Penal Code has been in the process of revision for the last ten years, and there is no guarantee that this will be completed  anytime soon.  This basically denies any avenue for the victims to make any complaint of torture and have the guarantee that it will be inquired into or  prosecuted.

This lacuna of a legal mechanism has had serious consequences. The victims of torture suffer isolation, anxiety and fear. The victims suffer from feelings of guilt and are reluctant to lodge any complaints. Since torture is legally not defined as a crime and since there are no avenues for reporting or any guarantees that it will be investigated into and lead to prosecution, the victims continue to shy away or suffer in silence; except in cases where torture has resulted in death, it is very rare that the victims would want to make a complaint. Even the few persons that have turned to civil society organizations would not request any prosecution, but only the prevention of further torture as there is no avenue for prosecution. Besides, the complaints made in the past, when proven guilty, the perpetrators were given simple disciplinary action and no adequate punishment or compensation to the victims.

A case which is symptomatic of the present situation is the arrest and the torture of 10 farmers in October 2005 by police officers in Central Sulawesi, Indonesia. Eight were sentenced to nine years imprisonment, on the charges of maltreatment and killing of 17 police officers, three of whom died. However, no investigation was ever conducted into the farmers’ complaint of police torture during investigation, made in December 2005. The AHRC, together with local human rights groups, expressed concerned that although the Central Sulawesi Provincial Police promised to investigate the farmers’ torture complaint and punish the perpetrators if they were found to have committed torture, no investigation has so far been conducted. These farmers have been denied redress for the brutal torture they suffered, and now their rights have been further violated by being unjustly sentenced. Despite the fact that the complaint was made to the judge during the hearing of the case, it was simply dismissed by him. RE: UA-239-2005: Custodial torture of ten men by Central Sulawesi Provincial Police]. 8 June 2006

Another problem that the victims are confronted with is lack of medical evidence to corroborate claims of torture. One of the key threads of evidence of torture lies in the medical examination. In all the cases that have been reported to us, not a single incident has the victim being given a proper medical examination. The medical reports provided so far have lamentably failed to provide an accurate medical report as was the case of the brutal murder of the 14 year old boy Irfan in Jakarta quite recently. It is alleged that Irfan lost consciousness due to torture by Muncipal Administrative Police Unit (SATPOL PP) and died on his way to Bumi Puskesmas hospital. However, the members of the family have failed to get any evidence from the medical quarters that would challenge the statement by Mr. Harianto Bajuri, the Head of Security and Discipline of the Jakarta administrative region, who claimed that the death was due to ill-health, as opposed to severe internal injuries allegedly caused by the police assault.

It is against this background we would like to make the following recommendations:

1. Amend the existing law No. 5/1998.of  1998 against torture so that it becomes an effective instrument in prohibiting torture and getting redress to the victims,
2. Define torture in such a manner that it corresponds adequately to the gravity attached to torture as found in the Convention and not be treated as ‘assault’. The complaint of torture is only when committed by anyone representing the state.
3. A punishment appropriate to the gravity of torture and compensation adequate for the victim to recover and lead a normal life be made part of the amended law.
4. An independent and efficient mechanism for complaints and investigations be established.
5. The National Human Rights Commission, Komnas Ham be authorised to visit places of detention, investigate complaints of torture and recommend suitable compensation.
6. When complaints of torture are made to judges, that they be investigated under his/her scrutiny,
The doctors who are familiar with the domestic laws be appointed to hospitals who can conduct proper medical examinations into cases of torture.