Public caning a primitive punishment

Public caning a primitive punishment

Ridarson Galingging, Jakarta

The public caning of petty gamblers and two unmarried couples
for drinking alcohol in Aceh sends a very bad message to
Indonesians and the outside world. Do Indonesians really want the
world to see them as promoting public disgrace and "torture" as
forms of punishment? Flogging shows the violent face of our legal
system.

One of the most important objectives of modern punishment is
to rehabilitate convicts. Humiliating and "torturing" them in
public by beating them is neither an acceptable, effective nor
humane method to rehabilitate convicts.

The practice of beating and humiliating people in public has a
long and disgraceful history. Public floggings in the early
American colonies were used to punish slaves and to prevent slave
revolts. England passed the Whipping Act in 1530. The Mosaic
Codes, Roman laws, and the Tang Code in imperial China specified
the types of offenses punishable by whipping and the number of
lashes to be inflicted.

Decisions in other countries consistently find that corporal
punishment constitutes inhuman and degrading treatment of
criminals. The Namibian Supreme Court's decision in Ex Parte
Attorney-General, In re, (1993) held, for example, that besides
being inhuman and degrading, the imposition of corporal
punishment is inconsistent with civilized values of justice and
the punishment of offenders.

In 1997, the UN Commission on Human Rights stated that
"corporal punishment [such as flogging] can amount to cruel,
inhuman and degrading punishment or even torture."

Indonesia signed and ratified the Convention against Torture
in 1998.

From a narrow and purely legalistic point of view, caning the
gamblers and the unmarried couples is justified because it is
grounded in the Aceh Autonomy Law No. 44/1999, Law No. 18/2001,
as well as Aceh gubernatorial regulation No. 10/2005.

Every country has a right to its sovereignty. But especially
since World War II, it is also the case that no country exists
outside the community of nations and the norms and standards
embodied in international law.

Indonesia is not an outsider to this international community.
As the world's fourth largest nation, third largest democracy,
and single largest population of Muslims, Indonesia is an
important player on the global stage. If anything, Indonesia has
aspirations to have an even greater impact on the international
community. And yet, the country undermines any such hopes by
earning an international reputation as a country that engages in
primitive and inhumane forms of punishment.

The problem is compounded by the fact that Indonesia has
ratified the Convention against Torture. A policy of public
caning runs counter to that Convention and disrespects human
dignity, a right protected by the Universal Declaration of Human
Rights and the International Covenant on Civil and Political
Rights.

The consensus opinion internationally is that flogging is
prohibited by the Universal Declaration of Human Rights, which
declares in Article 5 that "No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment."

The central government's endorsement of regional laws and
regulations that allow the application of inhuman and degrading
punishment such as caning can be categorized as a crime under
international law.

This country has much better methods than flogging to punish
its fellow countrymen who happen to have committed "crimes." This
is what makes modern and civilized states very different from
primitive societies.

Primitive forms of punishment are well-documented in history.
Over the centuries, criminals have been fed alive to starving
lions as cheering crowds watched in stadiums in Rome. In India
they had their heads stomped upon by elephants. And in parts of
Europe and North America, criminals had their heads and arms
locked into "stockades" in the middle of the public square to
shame them as their fellow citizens threw rotten eggs and
vegetables at them.

In an infamous story in American literature, The Scarlet
Letter, a young woman was forced day and night to wear a large
red "A" on her chest to shame her in front of the community as an
"Adultress."

By contrast, modern and civilized states try to rehabilitate
convicts so they are not only punished but also prepared to
return to society as better citizens who respect the law. In many
advanced countries, the idea of humane treatment extends even to
animals.

What about religious aspects? Is caning the only method that
can be applied to punish these unacceptable transgressions under
Sharia law? Hasyim Muzadi, chairman of Nahdlatul Ulama, the
country's largest Islamic organization, stated recently that
public beatings were not the only method to punish people
engaging in unacceptable behavior, such as gambling. We have
other options that do not violate international standards and
norms -- which Indonesia is obligated to uphold.

Even if Islamic teachings say that caning can be imposed in
this case, the issue is open to modern interpretation. The Holy
Book should be a living instrument to be interpreted in the light
of present-day conditions.

The Indonesian state has a constitutional obligation to
promote and protect human rights. All laws and regulations that
condone the practice of inhuman and degrading punishment such as
public flogging ignore this responsibility.

The amended 1945 Constitution guarantees that the state will
protect its citizen from rights abuses. The people who are being
beaten in public are citizens of the Republic of Indonesia and
are entitled to full constitutional protections against the abuse
of their human rights, even if they have engaged in behavior
deemed unacceptable such as gambling or co-habitation.

For now, caning is a legal punishment under provincial
Acehnese law and the local governor's regulations. But the
legality of this punishment contradicts important international
human rights principles that Indonesia has signed and ratified.

It is not too late for the central government to stop these
practices. The local laws and regulations can and should be
amended. The key complaint of the Acehnese is that their
resources and wealth have been sucked away at gunpoint to Java,
not that the Center infringes on their local rights to beat
people publicly.

The public image of our legal system is already very "ugly."
Public caning only adds more embarrassment and negativity to the
Indonesian legal system.

Although appeals to the Supreme Court have thus far been a
dead end, the victims of degrading forms of punishment can still
turn to the Indonesian Constitutional Court as an appropriate
forum to address this issue.

The Constitutional Court has the power to review laws that are
not compatible with the amended 1945 Constitution and human
rights.

Local Acehnese regulations permitting public caning of
convicts are not compatible with the Universal Declaration of
Human Rights, the 1997 United Nations Human Rights Commission
resolution, the Anti-Torture Conventions that Indonesia has
signed and ratified, as well as our own Constitution.

Stopping public beatings and other primitive forms of
punishment will not be a setback for justifiable Acehnese demands
for more autonomy and justice. Rather, it will be a step forward
for all of Indonesia and for the community of civilized nations
that seek to advance human rights and basic human dignity. These
are not values imposed from the outside. They are what we fought
and died for in our struggle for national independence.

The writer (r-galingging2004@law.northwestern.edu) is a
lecturer in law at Yarsi University in Jakarta and a doctoral
candidate at Northwestern University School of Law in Chicago.