Torture is an extraordinary crime. The perpetrators of acts of torture have been recognised as hostis humanis generis
, enemies of all humankind. Therefore, all states must ensure that the prevention of acts of torture and the assurance of the right of victims of torture are set forth in their laws.
It has been almost seven years since Indonesia ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on September 28, 1998, by Law No. 5 of 1998, but there are no adequate and applicable measures to prevent and criminalise acts of torture and to make the acts punishable by appropriate penalties. None of the norms of CAT has been adopted into the 1945 constitution or domestic law nor is there any mechanism for people to lodge complaints about human rights violations. Although torture is one of the elements of crimes against humanity under Law No. 26 of 2000 in the Human Rights Court Act, there is no sufficient procedure for the act of torture to be brought before the court as the penal code does not have any specific provision for prosecuting acts of torture. At present, the act of torture is treated in the same way as ordinary maltreatment between civilians even though torture has the specific nature of a crime as set forth in its definition in CAT.
The grounds for the governments resistance to implement CAT comes from the basic principles of an independent Indonesian state, known as Pancasila, which provides that domestic law must take precedence over universally accepted norms. Pancasila has also become a shield of the state for making non-justifiable policies and an excuse for breaching the states obligations.
Various human rights groups have reported that torture and degrading treatments have been practised in the country through repression and the intimidation of the opposition and by keeping detainees in poor prison conditions. The lack of political will to improve the judiciary, the involvement of many parliamentary and judiciary members in corruption, collusion, nepotism as well as the commission of human rights violations, abuse of discretional power, the exclusion of the public from decision making, inconsistent court decisions, etc., have resulted in systemic torture and violation of CAT by the state.
Following the new bill on the Truth and Reconciliation Commission, Law No. 27 of 2004, victims will suffer more as the proposed legislation does not provide them with the right to reparations. In Article 27 of the bill, the victims of gross violations of human rights, including torture, will have the right to reparations only if the perpetrator gets an amnesty. The bill also gives the commission the authority to recommend amnesty for perpetrators of gross violations of human rights, including torture.
In addition, the Indonesian government has failed to comply with the principle of the peremptory norm of international law (or jus cogens
) to prohibit torture as it has refused to cooperate in any judicial process involving torture cases in the Special Panel for East Timor in Dili. The Indonesian government, together with the government of East Timor, has shielded the perpetrators of torture by establishing the Commission of Truth and Friendship.
On June 26, the U.N. International Day in Support of Victims of Torture, it is appropriate to reiterate the question to the Indonesian government about its willingness to fulfil its treaty obligation to implement CAT. We urge the Indonesian government to reform its criminal law with amendments to the penal code and the criminal procedure so that the law is in line with CAT.
CAT should be implemented with full compliance, and the ratification should not be merely for Indonesias international image. Let us join our hands together for the rights of torture victims and urge the Indonesian government to comply fully with its obligation under the Convention against Torture.
