Ending the cruelty of law

Christine Susanna Tjhin, Jakarta

Almost seven years after reform, the rule of law as one of the key pillars of democracy remains a fragile one. In law enforcement, we seek the certainty of the law, but what we get is the cruelty of the law.

According to the Indonesian Legal Aid and Human Rights Association's (PBHI) report for 2002, the police are responsible for 60 percent of reported cases of state violence. In 2004, another human rights organization, Imparsial, made similar conclusion after researching media reports on violence.

Since the National Police separated from the Indonesian Military (TNI) -- as part of the reform of Indonesia's security sector and the democratization process -- the police have regained their full original mandate to protect and to serve the people, as stated in Law No. 2/2002 on the National Police.

We know that police reform has not been as "popular" as military reform. The police face the extensive tasks of curbing corruption and fighting terrorism. Nonetheless, the police are a key element in the war against torture.

Is police culture one of violence? We do not want to jump to conclusions, though this notion may well stem from the idea of Indonesia having a culture of violence.

This thread can be traced from the legal and institutional structures of the National Police and Criminal Code and/or the courts. The law on the police is not conducive to mainstreaming an antitorture paradigm, as article 18 allows police officers "to take action in accordance to their judgments".

The inadequate human-rights education, meager wages and benefits, poor disciplinary records and laziness of the police utterly hamper "good judgment". If we combine this with the content of the Criminal Code, which accepts a suspect's testimony as legitimate proof in an investigation process, what we get is a "functional" action in the police structure.

The establishment of the National Police Commission through Presidential Regulation No. 17/2005, may open some opportunities. However, the commission possesses nothing more than a consultative mandate. It is not able to exercise control or impose sanctions. It is more assigned to monitor -- not investigate -- the performance of the police, sustain a professional recruitment mechanism, and to handle public complaints. Moreover, the independency of the commission is now under question.

Another front is the controversial Criminal Code bill. Torture is on the list of "new" types of crime. Yet the code is missing the "state apparatus" element in its explanation on torture. The state apparatus has the mandate, power and facilities to carry out law enforcement, which is beyond civilian authority. Infringements of such a duty, power and, most importantly, trust, must be severely punished. Violations cannot be treated as "mere" crimes.

At the very essence of matters, antitorture mainstreaming must penetrate all security and legal reform. There are at least nine bills in the National Legislation Program that are directly relevant to security sector reform, 19 in legal reform and 30 on matters crucial to civil and political rights. These are our tasks in embedding the antitorture paradigm in state structure.

On a societal level, building intolerance toward torture and distortions in the law-enforcement process will be a huge task for civil society organizations and the general community. How many realizes the hypocrisy behind calls for the government to serve the people's interests and basic rights made by the same people who take pleasure in seeing pickpocketers being beaten black and blue or those who maintain "those buggers deserve it!".

The media could be a crucial element in creating such an atmosphere by altering public perception through the crime reality shows that have been produced these past few years. Crime shows could pinpoint for the public where the abuses of mandate and power have occurred and then challenge the public to become critical and compassionate in responding to such abuses. Through this, the public will send a powerful signal to the state apparatus that we want certainty of law, not cruelty of law.

The author is a researcher at the Department of Politics and Social Change, Centre for Strategic and International Studies (CSIS) and a member of the Anti-Torture Network under the Asian Human Rights Commission. xtine@csis.or.id