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Indonesia: Reconciling a double standard - Invite the Rapporteur while encouraging torture

Asian Legal Resource Centre Statement - November 6, 2007

The Asian Legal Resource Centre (ALRC) and its sister organization the Asian Human Rights Commission welcome the proposed visit by the Special Rapporteur for Torture, Dr. Manfred Novak.

It comes at a time when the country is stuck in limbo, unable to decide whether to abide by the international standards on human rights or to nurture the culture of impunity which has taken root in every aspect of government life. The widespread use of torture is tangible and reflects the indecisiveness of the government. The authorities find it more reassuring to maintain old habits and guarantees of impunity rather than to punish the perpetrators, the police or the army for a crime that the country is even reluctant to define.

One might be compelled to perceive that it is due to a lack of sufficient understanding of the CAT Convention that the government continues to propose inadequate definitions of torture or fails to criminalize it. It is far from that. The attempts by the government to train the police have so far not resulted in a visible change in police practice or the application of proper methods of investigations. The government is still unwilling to pay a decent salary to members of the police and thus indirectly encourages the acceptance of bribes and indifference to the values of a fair trial, which are vital for the establishment of the rule of law. Furthermore, it continues to hesitate with the much needed reform of the police, the prosecutor general and the judiciary. Inaction by the police is contributing to the wide use of torture.

The government keeps asserting that the Penal Code that is being revised will have sufficient legal mechanisms both for the prevention and the prosecution of cases of torture. Beneath this superficial guarantee, there is the hidden reality that the Penal Code has been revised for more than the last thirty years. An end of the revision is still not foreseeable. It seems that the President of Indonesia has time to record his own music album (as seen last week in the Indonesian media), but does not find time to bring the enactment of the code about. It is this double game that Indonesia plays, which the ordinary man would view as cheating the international community and the Indonesian public. Beneath this farce is the denial of a number of basic rights: the right not to be tortured, the right to be considered innocent till proven guilty, the right to a fair trial and the right not to be illegally arrested, all of which are enshrined in the constitution.

In a briefing paper by the Asian Legal Resource Centre, which has been submitted to the Special Rapporteur on Torture, the ALRC has tabulated a number of cases of torture, which represent only a fraction of actual cases. The report can be downloaded in English (ALRC-SPR-001-2007) and Indonesian (ALRC-SPR-001-2007-ID). In none of these cases, the victims had access to redress. This reveals the fact that there is no mechanism for actual redress in the country. It is in this context that the ALRC would like the Rapporteur to take up the issue concerning the absence of a mechanism for redress, based on a proper understanding of the gravity of the crime of torture. The existing mechanism for police complaints "Propam" is thoroughly inadequate and in no way designed to provide remedies to victims of torture.

A proper definition of torture, followed by the establishment of an independent and an adequate mechanism for redress that includes appropriate punishment of the perpetrators, must be the result of a reform process. Rehabilitation for the victims, including their compensation, must be part of the discussion if the citizens of Indonesia are to be beneficiaries of this visit. Besides, the National Human Rights Commission, Komnas HAM, needs to be brought in as a decisive factor in addressing the issue of torture. Visiting places of detention, recording and inquiring into complaints of torture, making recommendations regarding the compensation to be paid, recommending the assistance of the Victims and Witness Protection Law and educating the public and the security forces on the gravity of the crime could be included in their mandate. The role of civil society organisations and their contributions for supporting victims and the elimination of torture has to be recognised and promoted.

ALRC recommendations to the government of Indonesia:

1. Declaration of torture as a punishable crime, different from 'maltreatment', and to pass appropriate laws to punish perpetrators and provide redress to victims
2. Agreement with the Rapporteur on a definite time frame for the completion of the revision of the Penal Code and the other required measures
3. Establishment of a credible, efficient, transparent and impartial mechanism for reporting and the prosecution of torture
4. Provision of medical examinations and treatment to be conducted in places of detention, without the presence of authorities and in cases of serious torture, the provision of medical treatment by the authorities
5. Ensuring the provision of effective mechanisms under victim and witness protection
6. Authorising Komnas HAM to visit places of detention to record cases of torture, mandate and support them to conduct inquiries into complaints of torture and to submit together with the government the list of torture complaints received until now to the Rapporteur, including information on the remedies provided and the punishment meted out
7. Inviting civil society organisations to be involved, together with the government, in taking care of the victims and in educating the public on the gravity of the crime of torture and its difference to maltreatment
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