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Indonesia: Flawed Law on Torture
Asian Legal Resource Centre -- ALRC
Thursday, 1st April 2004
Statement on 'Indonesia's law on torture is fundamentally
flawed' received by Commission on Human Rights
(Geneva, 1 April 2004) -- The written statement of the
Asian Legal Resource Centre (ALRC) on 'Indonesia's law on torture is
fundamentally flawed' (E/CN.4/2004/NGO/35) was distributed yesteray at
the 60th Session of the United Nations Commission on Human Rights in
Geneva.
The full text of the statement follows.
This year, ALRC submitted 30 written statements to the
Commission, on topics as diverse as caste discrimination in Nepal, food
scarcity in Myanmar, custodial deaths and torture in India,
extrajudicial killings in Thailand, policing in Pakistan, the National
Human Rights Commission of Sri Lanka, and impunity in Asia.
The complete list of statements, with full texts and
links to the original versions, can be viewed on the ALRC website, at
http://www.alrc.net/mainfile.php/60written/.
Asian Legal Resource Centre -- ALRC, Hong Kong
Indonesia's law on
torture is fundamentally flawed
1. The Fourth Amendment to the 1945 Constitution of the
Republic of Indonesia, introduced in 2002, states in article 28(G)(2)
that "Every person shall have the right to be free from torture or
inhumane and degrading treatment, and shall have the right to obtain
political asylum from another country." This provision is reinforced by
article 28(I)(1), which states that,
"The rights to life, freedom from torture, freedom of
thought and conscience, freedom of religion, freedom from enslavement,
recognition as a person before the law, and the right not to be tried
under a law with retrospective effect are all human rights that cannot
be limited under any circumstances."
It is further reinforced by article 28(I)(5), which holds
that "the implementation of human rights shall be guaranteed, regulated
and set forth in laws and regulations".
2. Despite the above provisions, torture continues to be
practiced on a large scale with impunity in Indonesia. In Indonesia, the
Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT) was brought into domestic law under Act
No.5 of 1998. However, as the Asian Legal Resource Centre has already
described to the Commission in its written statement on this topic at
its fifty-ninth session (E/CN.4/2003/NGO/88), this legislation has not
formalised torture as an offence, nor imposed appropriate penalties upon
offenders. All cases of torture, therefore, continue to be treated the
same as mere civilian assaults. Consequently, the military, police,
paramilitary groups and agents of political parties in Indonesia,
particularly in areas of conflict such as West Papua and Aceh, continue
to use torture widely and with impunity.
3. The impunity enjoyed by torturers in the armed forces
was clearly demonstrated in a recent case where soldiers who had
admitted to committing torture were nonetheless released. On 10 October
2003, the Lhokseumawe Military Court freed the 12 soldiers, from
Batalyon Infantry (Yonif) 301, who had admitted to torturing civilians
of West and East Gleumpang Sulu, Dewantara District, North Aceh. The
military prosecutor set them free and the judges, lead by Major (Chk) E
Trias Komara, acquitted the perpetrators because of lack of evidence,
despite the soldiers having confessed in court to torturing villagers in
order to get information about a member of the Free Aceh Movement.
4. In its Conclusions and Recommendations to Indonesia of
22 November 2001, the Committee against Torture has clearly spelt out
that the state must amend its penal legislation so that torture is
treated as an offence under criminal law, in compliance with article 1
of the CAT, with adequate penalties attached. However, the Government of
Indonesia has so far failed to comply with this instruction.
5. The Committee also requested the government to
establish an effective, reliable and independent complaint system to
undertake prompt, impartial and effective investigations into
allegations of ill treatment and torture by police and other officials
and, where the findings so warrant, to prosecute and punish
perpetrators, including senior officials. Likewise, the Government of
Indonesia has failed to take steps to comply with this recommendation.
6. The National Human Rights Commission (Komnas-HAM) also
failed to address the widespread torture in Indonesia. It lacks the
independence and authority necessary to inquire into reported cases and
conduct impartial hearings that could culminate in executable orders.
Without a certain amount of independence and authority, Komnas-HAM is
meaningless. Presumably such authority is not being given because the
government is itself afraid of the consequences.
7. In light of the above, the Asian Legal Resource Centre
recommends to the Commission, and in particular the Committee Against
Torture, that it:
a. Pressure the Government of Indonesia to take immediate
measures so as to ensure that the perpetrators of torture in the country
are brought to justice and punished, in compliance with the
recommendations of the Committee against Torture.
b. Again urge the Government of Indonesia to reform the
criminal laws to incorporate torture as a crime; provide appropriate
punishments and remedies, and bring to an end the impunity that
torturers currently enjoy.
c. Encourage the Government of Indonesia to ensure that
Komnas-HAM is effective, authoritative and independent, and provide
assistance to that end. In particular, the government needs to define
clearly the role of Komnas-HAM regarding its responsibility to conduct
impartial investigations into allegations of torture in all areas of the
country. These areas must include places of conflict, in particular,
Aceh and West Papua. Komnas-HAM must also be given a mandate to pursue
the prosecution of torturers and seek compensation for victims. |
