It was in August of this year that Indonesia’s draft revised Penal Code Bill was to be submitted to the President for parliamentary debate. Predictably, this did not take place. No one knows when, or even if, this draft, which has been in revision for the last twenty years, will reach the hands of the President.
It is hard to believe but true: despite the fact that the country has ratified the Convention Against Torture, not a single torture victim has been able to obtain justice in Indonesia. This is because the penal code been under revision for decades, with no end in sight. When the international community and UN bodies raise questions regarding Indonesia’s failure to recognize and punish human rights crimes, the government’s ready explanation is that all necessary descriptions are in the revised penal code which has yet to see the light of the day.
The present Indonesian Penal Code is based on the State Gazette number 732 of 1915, known as Wetboek van Strafrecht voor Indonesia, with subsequent revisions and amendments dating up to 1976. Hence, it is almost 95 years that Indonesia has operated under this colonial-era Penal Code.
Indonesia has ratified both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Ratification of the two Covenants requires the examination of existing laws to ensure conformity with their obligations. Regrettably, the Penal Code Bill still restrains many of the rights which fall under international norms and standards. Yet even despite these inconsistencies, the revised penal code appears to be more comprehensive than its predecessor. But its delay in getting through parliament has created great ambiguity within the legal community and uncertainty among the victims of human rights violations. Most devastatingly, the present Code does not criminalise torture, extra-judicial killing, or disappearance, a fact that prevents victims and their families from obtaining justice.
A penal code as is generally understood is a written set of criminal laws enacted by legislature, stipulating the elements of offences and the punishment for crimes. If the code does not lay out what constitutes crimes and their corresponding punishments, there is no legal basis for prosecution. Thus, in Indonesia there is no basis for investigating or prosecuting the human rights violations that citizens now face. There are no grounds on which the state can deal with these criminal perpetrators. The state threatens itself with lawlessness if citizens try to take the law into their own hands as a consequence of Indonesia’s gross inability to provide justice to its citizens.
One glaring example of the code’s failure is its definition of the crime of torture, which makes no distinction between torture and simple assault. The defining feature of the act of torture, which is not recognised in the penal code is that it is committed by a state representative while an assault is committed by a civilian. The gravity of torture stems from the fact that a state agent is using state power against a powerless civilian, either to extract a confession or merely to exact punishment. Because the penal code does not recognise this, the prescribed punishment does not reflect the gravity of torture as a crime. Similarly, the penal code does not distinguish between murder and extra-judicial killing, nor prescribe punishments that reflect the gravity and state complicity of the latter. Long-standing and growing demand exists for the penal code to be passed through the parliament, paving the way for redress of human rights violations.
Revision of the penal code commenced in the 1960s; it is incomprehensible that it has been ongoing for over forty years with no time frame for completion. Many public discussions have been held and legal practitioners, legal scholars, and NGO groups have made innumerable contributions and suggestions. And yet the draft is very last on the Presidents agenda. Civil society is seriously concerned that if this Bill continues to be delayed by the President, it will be ignored by the parliament as well. Given that Presidential elections take place in 2009, chances are that if it is not taken up for debate this year, it will not be taken up till 2010. Thus, the perpetrators of human rights crimes will have even more time to enjoy their impunity.
It is in the interest of the rule of law, and of the nation itself, that the President and the Parliament of the Republic of Indonesia pay serious attention to the passage of the revised penal code. This is important not only for compliance with international standards but also for the country’s image and welfare, in the present and the future.
The Asian Human Rights Commission is gravely concerned about the delayed passage of the Penal Code Bill. Given the Indonesian Government’s commitment to its own people, as well as to the Human Rights Council, it is imperative that the government come up with a time frame for its passage. Reluctance on the part of the government to do so is tantamount to the denial of justice to its own people. The Penal Code delayed is justice delayed; justice delayed is justice denied.
