Fwd: [AHRC Statement] INDONESIA: Refusal to amend the law on torture lends support to its widespread use by the State officers
- AHRC <listadmin@...> wrote:Subject: [AHRC Statement] INDONESIA: Refusal to amend the law on torture lends support to its widespread use by the State officers
Date: Thu, 1 Feb 2007 10:53:03 +0800
From: AHRC <listadmin@...>FOR IMMEDIATE RELEASE
February 01, 2007
A Statement by the Asian Human Rights Commission
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.
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
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
# # #
About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984.
Asian Human Rights Commission
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998 Canton Road, Kowloon, Hongkong S.A.R.
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