Public caning a primitive punishment<\/p>\n
Ridarson Galingging, Jakarta<\/p>\n
The public caning of petty gamblers and two unmarried couples
\nfor drinking alcohol in Aceh sends a very bad message to
\nIndonesians and the outside world. Do Indonesians really want the
\nworld to see them as promoting public disgrace and "torture" as
\nforms of punishment? Flogging shows the violent face of our legal
\nsystem.<\/p>\n
One of the most important objectives of modern punishment is
\nto rehabilitate convicts. Humiliating and "torturing" them in
\npublic by beating them is neither an acceptable, effective nor
\nhumane method to rehabilitate convicts.<\/p>\n
The practice of beating and humiliating people in public has a
\nlong and disgraceful history. Public floggings in the early
\nAmerican colonies were used to punish slaves and to prevent slave
\nrevolts. England passed the Whipping Act in 1530. The Mosaic
\nCodes, Roman laws, and the Tang Code in imperial China specified
\nthe types of offenses punishable by whipping and the number of
\nlashes to be inflicted.<\/p>\n
Decisions in other countries consistently find that corporal
\npunishment constitutes inhuman and degrading treatment of
\ncriminals. The Namibian Supreme Court's decision in Ex Parte
\nAttorney-General, In re, (1993) held, for example, that besides
\nbeing inhuman and degrading, the imposition of corporal
\npunishment is inconsistent with civilized values of justice and
\nthe punishment of offenders.<\/p>\n
In 1997, the UN Commission on Human Rights stated that
\n"corporal punishment [such as flogging] can amount to cruel,
\ninhuman and degrading punishment or even torture."<\/p>\n
Indonesia signed and ratified the Convention against Torture
\nin 1998.<\/p>\n
From a narrow and purely legalistic point of view, caning the
\ngamblers and the unmarried couples is justified because it is
\ngrounded in the Aceh Autonomy Law No. 44\/1999, Law No. 18\/2001,
\nas well as Aceh gubernatorial regulation No. 10\/2005.<\/p>\n
Every country has a right to its sovereignty. But especially
\nsince World War II, it is also the case that no country exists
\noutside the community of nations and the norms and standards
\nembodied in international law.<\/p>\n
Indonesia is not an outsider to this international community.
\nAs the world's fourth largest nation, third largest democracy,
\nand single largest population of Muslims, Indonesia is an
\nimportant player on the global stage. If anything, Indonesia has
\naspirations to have an even greater impact on the international
\ncommunity. And yet, the country undermines any such hopes by
\nearning an international reputation as a country that engages in
\nprimitive and inhumane forms of punishment.<\/p>\n
The problem is compounded by the fact that Indonesia has
\nratified the Convention against Torture. A policy of public
\ncaning runs counter to that Convention and disrespects human
\ndignity, a right protected by the Universal Declaration of Human
\nRights and the International Covenant on Civil and Political
\nRights.<\/p>\n
The consensus opinion internationally is that flogging is
\nprohibited by the Universal Declaration of Human Rights, which
\ndeclares in Article 5 that "No one shall be subjected to torture
\nor to cruel, inhuman or degrading treatment or punishment."<\/p>\n
The central government's endorsement of regional laws and
\nregulations that allow the application of inhuman and degrading
\npunishment such as caning can be categorized as a crime under
\ninternational law.<\/p>\n
This country has much better methods than flogging to punish
\nits fellow countrymen who happen to have committed "crimes." This
\nis what makes modern and civilized states very different from
\nprimitive societies.<\/p>\n
Primitive forms of punishment are well-documented in history.
\nOver the centuries, criminals have been fed alive to starving
\nlions as cheering crowds watched in stadiums in Rome. In India
\nthey had their heads stomped upon by elephants. And in parts of
\nEurope and North America, criminals had their heads and arms
\nlocked into "stockades" in the middle of the public square to
\nshame them as their fellow citizens threw rotten eggs and
\nvegetables at them.<\/p>\n
In an infamous story in American literature, The Scarlet
\nLetter, a young woman was forced day and night to wear a large
\nred "A" on her chest to shame her in front of the community as an
\n"Adultress."<\/p>\n
By contrast, modern and civilized states try to rehabilitate
\nconvicts so they are not only punished but also prepared to
\nreturn to society as better citizens who respect the law. In many
\nadvanced countries, the idea of humane treatment extends even to
\nanimals.<\/p>\n
What about religious aspects? Is caning the only method that
\ncan be applied to punish these unacceptable transgressions under
\nSharia law? Hasyim Muzadi, chairman of Nahdlatul Ulama, the
\ncountry's largest Islamic organization, stated recently that
\npublic beatings were not the only method to punish people
\nengaging in unacceptable behavior, such as gambling. We have
\nother options that do not violate international standards and
\nnorms -- which Indonesia is obligated to uphold.<\/p>\n
Even if Islamic teachings say that caning can be imposed in
\nthis case, the issue is open to modern interpretation. The Holy
\nBook should be a living instrument to be interpreted in the light
\nof present-day conditions.<\/p>\n
The Indonesian state has a constitutional obligation to
\npromote and protect human rights. All laws and regulations that
\ncondone the practice of inhuman and degrading punishment such as
\npublic flogging ignore this responsibility.<\/p>\n
The amended 1945 Constitution guarantees that the state will
\nprotect its citizen from rights abuses. The people who are being
\nbeaten in public are citizens of the Republic of Indonesia and
\nare entitled to full constitutional protections against the abuse
\nof their human rights, even if they have engaged in behavior
\ndeemed unacceptable such as gambling or co-habitation.<\/p>\n
For now, caning is a legal punishment under provincial
\nAcehnese law and the local governor's regulations. But the
\nlegality of this punishment contradicts important international
\nhuman rights principles that Indonesia has signed and ratified.<\/p>\n
It is not too late for the central government to stop these
\npractices. The local laws and regulations can and should be
\namended. The key complaint of the Acehnese is that their
\nresources and wealth have been sucked away at gunpoint to Java,
\nnot that the Center infringes on their local rights to beat
\npeople publicly.<\/p>\n
The public image of our legal system is already very "ugly."
\nPublic caning only adds more embarrassment and negativity to the
\nIndonesian legal system.<\/p>\n
Although appeals to the Supreme Court have thus far been a
\ndead end, the victims of degrading forms of punishment can still
\nturn to the Indonesian Constitutional Court as an appropriate
\nforum to address this issue.<\/p>\n
The Constitutional Court has the power to review laws that are
\nnot compatible with the amended 1945 Constitution and human
\nrights.<\/p>\n
Local Acehnese regulations permitting public caning of
\nconvicts are not compatible with the Universal Declaration of
\nHuman Rights, the 1997 United Nations Human Rights Commission
\nresolution, the Anti-Torture Conventions that Indonesia has
\nsigned and ratified, as well as our own Constitution.<\/p>\n
Stopping public beatings and other primitive forms of
\npunishment will not be a setback for justifiable Acehnese demands
\nfor more autonomy and justice. Rather, it will be a step forward
\nfor all of Indonesia and for the community of civilized nations
\nthat seek to advance human rights and basic human dignity. These
\nare not values imposed from the outside. They are what we fought
\nand died for in our struggle for national independence.<\/p>\n
The writer (r-galingging2004@law.northwestern.edu) is a
\nlecturer in law at Yarsi University in Jakarta and a doctoral
\ncandidate at Northwestern University School of Law in Chicago.<\/p>",
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