Torture, comprehensive reform & democratization<\/p>\n
Christine Susanna Tjhin
\nResearcher
\nCentre for Strategic and
\nInternational Studies
\n(CSIS)
\nJakarta<\/p>\n
On Nov. 15, 2003, the National Commission on Human Rights
\n(KOMNAS HAM) announced its preliminary findings about human
\nrights abuses by the TNI and National Police in Papua. On the
\nsame day, cases of torture and judicial killings by the police in
\nMaluku were also reported. Torture cases have been \"public
\nsecrets\" for many years. Torture cases with differing gravity can
\nbe found in almost all police stations or military posts in areas
\nof conflict all over Indonesia.<\/p>\n
Let us clarify what torture means. Article 1 of the
\nInternational Conventions Against Torture and Other Cruel,
\nInhuman or Degrading Treatment or Punishment (CAT) states that
\ntorture is \"any act by which severe pain or suffering, whether
\nphysical or mental, is intentionally inflicted on a person\" by
\nstate apparatus (police, military and others). The purpose can be
\nto obtain information or confession or to punish that person (or
\na third person). The person may have committed or have been
\nsuspected to have committed a crime. Coercion and intimidation to
\na point of grave suffering are also considered torture.<\/p>\n
Such acceptance -- prominent amongst state apparatus as well
\nas the public -- is indicative of how disturbing the mindset of
\nthe country is in disregarding the fundamental inherent dignity
\nand equality as human beings, simply because one is a criminal.
\nThe increasing numbers, varieties and popularity of TV shows,
\nsuch as: BUSER, PATROLI, INVESTIGASI, DELIK, etc, highlight this.
\nCallous comments like, \"Those criminals deserve that!\" are not
\nuncommon.<\/p>\n
What can reduce crime is not the gravity of the punishment,
\nbut the certainty of the punishment. In Indonesia, the corrupt
\nsystem has enabled most perpetrators with financial capacity to
\nbuy their way out of penalty thus corroding such certainty. Those
\nwithout financial capacity would suffer multiplier effect. They
\neither become scapegoats or objects of exploitation and torture
\nor symbols of \"achievements\" of the rule of law. The compromises
\nof the system seem to be self-perpetuating. There is no equality
\nbefore the law, not with torture practices still around.<\/p>\n
The path of Indonesian democratization relies heavily in the
\npolice as well as civil society reform. Neither, unfortunately,
\nhas shown substantial performance despite the increasing numbers
\nof legal instruments and institutions. The Indonesian government
\nratified CAT on Sept. 23, 1998 with some reservation by the
\nenactment of Law No. 39\/1999. Though CAT had been ratified, the
\nlaw is not legally binding as it only asserts the ratification
\nwithout addressing any plans\/directions for implementation. The
\nprotection for citizen from torture cannot be done without
\ncomprehensive structural adjustment within the legislative,
\nadministrative and judicial system.<\/p>\n
Some fundamental steps can be done. Torture must be explicitly
\nand clearly legalized as a crime through proper legislation of
\nall regulations, in which principles of CAT could be
\nincorporated. This explicit affirmation must be followed with the
\nprovision of potent punishment against perpetrators.<\/p>\n
The administrative system, e.g. budget allocation, public
\noffice administration, etc, should also be consolidated as such
\nthat effective enactment of relevant laws could be done. Judicial
\nmechanism -- investigation, prosecution and punishment -- must be
\nin conformity with the principles of CAT.<\/p>\n
This article raises the importance of police reform due to
\nsome considerations. Firstly, the police are the most likely
\nculprit behind most torture cases. In 2002, PBHI (legal aid
\nagency) recorded that 60.16 percent of the 1,398 reported cases
\nof civil and political rights violations by state apparatus was
\ndone by the police, while 20.67 percent was done by the military.<\/p>\n
The second relates to the inherent role of the police. The
\npolice are supposed to be the sole guarantor of domestic security
\nand civilian safety. Police actions in the name of justice are
\nthe mirror of the community sense of justice. If torture is
\njustified within the police corps, the culture of violence will
\nprofusely spread to the community.<\/p>\n
The third relates to its specific role as investigators in
\njudicial process, which must be conducted humanely, meaning not
\nby applying torture as a means to gain
\ninformation\/confession\/testimony, and professionally, meaning the
\nprocess should be accountable that the police as the executor of
\njudicial process would not manipulate the process so that it
\ncould benefit the perpetrators out of sense of loyalty to the
\nforce.<\/p>\n
The fourth relates to the position of the police before the
\nlaw. Law No. 2\/2002 put the police judicial mechanism under the
\npublic criminal court. There is no specific provision for torture
\ncases. The treatment of torture cases as regular criminal cases
\nunder KUHAP (351-357) implies distortion. \"Normal\" criminal cases
\nare about citizen-citizen conflict. Technically, citizens are on
\nequal position.<\/p>\n
But torture is about police-citizen conflict, where the
\nbalance of power is different by nature. The police hold more
\npower -- as they are assigned to take lawful actions in the name
\nof public safety. Abusing this power must be avoided, thus
\nprovision of more severe punishment must be available. This is
\nnon-existent with the current system.<\/p>\n
A respectable example of ongoing anti-torture movement and
\ncomprehensive reform can be learnt from the transition of Sri
\nLanka's democratization. Gruesome torture cases and
\ndisappearances proliferated and have been institutionalized in
\nSri Lanka.<\/p>\n
Various human rights advocates in Sri Lanka took up the
\ninitiative to assist torture and disappearance victims, and
\ngenerated the antitorture movement. One spark of the movement is
\nthe integration of CAT in the Law No. 22\/1994 (20\/12\/94). This
\nexplicit legal enactment made it possible for the movement to
\nproceed stronger. The second spark is the establishment of the
\nConstitutional Council (CC) through the 17th amendment to the
\nConstitution (03\/10\/01). CC is less prone to politicization
\ncompare to any other state institutions in the country. CC paved
\nthe way for comprehensive reform, one of which involving the
\nestablishment of the National Police Commission (NPC).<\/p>\n
Transparency International Sri Lanka has long recorded the
\npolice as the most corrupt institutions in the Sri Lanka due to
\nthe politization from political parties. NPC at the moment can
\nmanage to repel politization and has been handling the
\nadministration of the police. The credibility of NPC is still
\nreputed in the public eyes, compare to the National Commission of
\nHuman Rights. NPC's main challenge is its lack of resources
\n(finance and human). Sri Lanka still faces great trials as
\ntorture cases are still widespread. But to a certain extent, Sri
\nLanka is a couple of steps ahead with their reform.<\/p>\n
Nobody can guarantee that a similar gruesome situation will
\nnot occur in Indonesia. Already we have \"similar qualities\" in
\nour country, though to a somewhat lesser degree, still they are
\nthere -- civil conflict, corrupt system, economic gap, police
\nunprofessionality, politization of reform and human rights
\nissues, etc. Starting from police reform is a good opening.<\/p>\n
The recent separation from the military provides greater space
\nfor the police to reform. The presence of Law No. 2\/2002 gives
\nthe police greater authority to operate, which also means greater
\nresponsibility and professionality. It also opens chances for the
\npublic to monitor the police's performance though not really well
\nbalanced. This is the one essential aspect of police reform,
\nespecially if we link it to the blueprint of our own NPC, which
\nis currently under scrutiny.<\/p>",
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