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.