| Danilo Reyes, Editor, article 2 |
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During the regimes of Soeharto (1967-1998) and Marcos (1970-1986), the practice of torture was part of the policy of the State to suppress dissent and impose social control. Their legal systems operated, not to protect individuals from being tortured, but to justify the use of torture by the security forces. After the revolutions in the Philippines in 1986 and Indonesia in 1998 the countries Constitutions and statutes have been amended to incorporate the protection of the right to absolute freedom from torture.
The 1945 Constitution of Indonesia (as amended in 2000) and the1987 Constitution of the Philippines accepted the obligation to ensure effective remedies and to absolutely prohibit torture in line with Article 2 (1) (2) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The Philippines, in compliance with Article 4 (1) of the CAT, enacted the Anti-Torture Law in November 2009. Indonesia however, did not enact a law on torture as a crime, but nevertheless legislated Law 39/1999 or the Human Rights Act and Law 26/2000 on the Ad Hoc Human Rights Court. Indonesia, in fact, by legislating torture as crime against humanity nine years earlier than Philippines, was rather advanced, at least on paper.
In Indonesia, Article 1 (4), 4, 33 and 66 (1) of Law 39/1999 defines, prohibits and recognizes the freedom from torture. Article 7(2) and 9 defines torture as a crime against humanity and actionable if “perpetrated as a part of a broad or systematic direct attack.” These two legislations have already been invoked in prosecuting the police and the military, notably those involved in systematic and widespread use of torture, killings, massacres in East Timor in 1999; however, at the conclusion of the trial, all accused were acquitted on appeal.
In the Philippines, after the Anti-Torture Law was enacted there was an attempt to hold accountable the police and the military involved in acts of torture. A study conducted by the Asian Human Rights Commission (AHRC) in March 2011, published in Article 2 (Vol. 10 – No. 01 March 2011), which reviewed the ten cases of where victims, families of victims and their legal counsels initiated prosecution, revealed the sheer failure of the criminal justice system in affording remedy to rights of jus cogens or peremptory norm.
During my trip to Indonesia from June to July 2013, discussions with torture victims, their families; lawyers and human rights activists, demonstrates the depth of their compassion to have a law against torture in their country enacted. In absence of the domestic law, torture victims have utilized the provision of the Penal Code and Criminal Procedure Code to seek criminal and civil remedies in court for torture. A study on this is discussed in an article written by Answer Styannes, titled “Criminal prosecution of seven torture cases in Indonesia” in this edition of Article 2.
Though there has been some success in civil remedies for complainants of torture cases; however, the magnitude and enormity of the torture practiced by Indonesia’s police, military and in places of detention dwarfed this success, if, in fact, we could call it success. However, there is importance and relevance attached to it that is emerging in INDONESIA: the need for a specific law on torture. Indonesia, whose legal system inherits civil law from the Dutch; and the Philippines, a combination of civil law, common law and indigenous customary laws, have placed strong emphasis on the positivist concept of law. The law has to be written.
However, while Indonesia and the Philippines embraced the positivist concept of law, the requirements needed to effectively utilise the positivist notion of law, as outlined by Kevin Thomas in 1990, (i) existence of a legal system (ii) existence of valid rules, are abysmally weak, if not absent. The word in the title of this report, “facade”, conceptualized by Answer, who herself is an Indonesian, speaks to the character of what the legal system and rules are in Indonesia following the collapsed of the Soeharto regime in 1998.
In both country the judges and their judicial institutions, which have the enormous and tremendous role of the protection of fundamental and absolute rights by the stroke of their pens in interpreting what right ought to mean, lack judicial independence. In Indonesia after decades of military rule and its subordination of the judiciary to the military, the concept of judicial independence never took root. Thus, it is not surprising when the judges impose lenient punishment on the police or soldiers accused of torture because “they have served and are needed by the country.”
The Indonesian government, in its Report to the CAT Committee in 2003 (CAT/C/72/Add.1, September 2005), admitted that even the prosecutors, lawyers and judges, lacks “understanding and skills” of the Convention making it difficult to implement:
130. The on-going process of the dissemination of the Convention, which has not yet reached the whole community and territory especially in the rural and remote area, is also a handicap. However, the Government is committed to do its utmost so that the whole community and territory will be reached as soon as possible.
131. For prosecutors there is no specific definition on torture, cruel and other inhuman treatment or punishment covering not only the acts against torture but also cruel, inhuman or degrading treatment or punishment, makes it difficult for prosecutorial criminal proceedings.
132. The lack of understanding and skills of the public officials, especially in the law enforcement sector, including lawyers and judges, on torture, cruel, inhuman, or degrading treatment, and punishments covered by the Convention, makes it difficult to fully implement the Convention.
Apart from the problems with the legal profession, the influence of the architect of the 1945 Indonesia Constitution, Professor Raden Soepomo, who conceptualized a State that is ‘authoritarian, command style and integrated’ where the guarantees of individual rights are not needed, still thrives. This concept, as noted by Tim Lindsey in 2008, is based on the flawed assumption that the State and people governed by it could not have been in conflict as they share a common interest. It places the importance of responsibility of the State to protect the collective as against individual rights.
To me, it explains probably why it was not controversial for the government to enact Law 39/1999 and Law 26/2000 since these laws only deal with gross violations of rights. Not only did the government resist, see the importance of a specific law on torture, even the Indonesian people, including those advocating for torture, are themselves divided on whether it is important to have a law on torture; or, if amendments to the Penal Code and the Criminal Procedure Code would be enough. Unfortunately, the latter is more dominant in the ongoing discourse on lobbying for a law on torture in Indonesia.
Nevertheless, regardless of whether there should be a law on torture or not, there is still importance attached to it: recognition of freedom from torture, for it to be prohibited, prevented and to impose criminal sanctions for violations of torture by the law. To me, having a domestic law is important as it deepens the obligations on the State; however, having a law itself is not a solution to prohibition, prevention or eradication of torture. It is not only the law, but how the existing legal institution operates in enforcing this law also needs to be understood.
Both Indonesia and the Philippines, after decades of strengthening their normative and legal framework on the protection of the absolute right not to be tortured, still struggles with dismantling the legacies of their authoritarian past. The legacies that thrive and remain so deeply embedded in their system of justice cannot be changed by amending the Constitutions, ratifying Conventions and enacting laws, alone.
