Torture, police and legal reform, democratization

Torture, police and legal reform, democratization

Christine Susanna Tjhin, Researcher, Centre for Strategic and
International Studies (CSIS), Jakarta

On Nov. 15, 2003, the National Commission on Human Rights
(KOMNAS HAM) announced its preliminary findings about human
rights abuses by the TNI and National Police in Papua. On the
same day, cases of torture and judicial killings by the police in
Maluku were also reported.

Torture cases have been "public secrets" for many years. Torture
cases with differing gravity can be found in almost all police
stations or military posts in areas of conflict all over Indonesia.

Let us clarify what torture means. Article 1 of the
International Conventions Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) states that
torture is "any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person" by
state apparatus (police, military and others). The purpose can be
to obtain information or confession or to punish that person (or
a third person). The person may have committed or have been
suspected to have committed a crime. Coercion and intimidation to
a point of grave suffering are also considered torture.

Such acceptance -- prominent amongst state apparatus as well
as the public -- is indicative of how disturbing the mindset of
the country is in disregarding the fundamental inherent dignity
and equality as human beings, simply because one is a criminal.
The increasing numbers, varieties and popularity of TV shows,
such as: BUSER, PATROLI, INVESTIGASI, DELIK, etc, highlight this.
Callous comments like, "Those criminals deserve that!" are not
uncommon.

What can reduce crime is not the gravity of the punishment,
but the certainty of the punishment. In Indonesia, the corrupt
system has enabled most perpetrators with financial capacity to
buy their way out of penalty thus corroding such certainty. Those
without financial capacity would suffer multiplier effect. They
either become scapegoats or objects of exploitation and torture
or symbols of "achievements" of the rule of law. The compromises
of the system seem to be self-perpetuating. There is no equality
before the law, not with torture practices still around.

The path of Indonesian democratization relies heavily in the
police as well as civil society reform. Neither, unfortunately,
has shown substantial performance despite the increasing numbers
of legal instruments and institutions. The Indonesian government
ratified CAT on Sept. 23, 1998 with some reservation by the
enactment of Law No. 39/1999. Though CAT had been ratified, the
law is not legally binding as it only asserts the ratification
without addressing any plans/directions for implementation. The
protection for citizen from torture cannot be done without
comprehensive structural adjustment within the legislative,
administrative and judicial system.

Some fundamental steps can be done. Torture must be explicitly
and clearly legalized as a crime through proper legislation of
all regulations, in which principles of CAT could be
incorporated. This explicit affirmation must be followed with the
provision of potent punishment against perpetrators.

The administrative system, e.g. budget allocation, public
office administration, etc, should also be consolidated as such
that effective enactment of relevant laws could be done. Judicial
mechanism -- investigation, prosecution and punishment -- must be
in conformity with the principles of CAT.

This article raises the importance of police reform due to
some considerations. Firstly, the police are the most likely
culprit behind most torture cases. In 2002, PBHI (legal aid
agency) recorded that 60.16 percent of the 1,398 reported cases
of civil and political rights violations by state apparatus was
done by the police, while 20.67 percent was done by the military.

The second relates to the inherent role of the police. The
police are supposed to be the sole guarantor of domestic security
and civilian safety. Police actions in the name of justice are
the mirror of the community sense of justice. If torture is
justified within the police corps, the culture of violence will
profusely spread to the community.

The third relates to its specific role as investigators in
judicial process, which must be conducted humanely, meaning not
by applying torture as a means to gain
information/confession/testimony, and professionally, meaning the
process should be accountable that the police as the executor of
judicial process would not manipulate the process so that it
could benefit the perpetrators out of sense of loyalty to the
force.

The fourth relates to the position of the police before the
law. Law No. 2/2002 put the police judicial mechanism under the
public criminal court. There is no specific provision for torture
cases. The treatment of torture cases as regular criminal cases
under KUHAP (351-357) implies distortion. "Normal" criminal cases
are about citizen-citizen conflict. Technically, citizens are on
equal position.

But torture is about police-citizen conflict, where the
balance of power is different by nature. The police hold more
power -- as they are assigned to take lawful actions in the name
of public safety. Abusing this power must be avoided, thus
provision of more severe punishment must be available. This is
non-existent with the current system.

A respectable example of ongoing anti-torture movement and
comprehensive reform can be learnt from the transition of Sri
Lanka's democratization. Gruesome torture cases and
disappearances proliferated and have been institutionalized in
Sri Lanka.

Various human rights advocates in Sri Lanka took up the
initiative to assist torture and disappearance victims, and
generated the antitorture movement. One spark of the movement is
the integration of CAT in the Law No. 22/1994 (20/12/94). This
explicit legal enactment made it possible for the movement to
proceed stronger. The second spark is the establishment of the
Constitutional Council (CC) through the 17th amendment to the
Constitution (03/10/01). CC is less prone to politicization
compare to any other state institutions in the country. CC paved
the way for comprehensive reform, one of which involving the
establishment of the National Police Commission (NPC).

Transparency International Sri Lanka has long recorded the
police as the most corrupt institutions in the Sri Lanka due to
the politization from political parties. NPC at the moment can
manage to repel politization and has been handling the
administration of the police. The credibility of NPC is still
reputed in the public eyes, compare to the National Commission of
Human Rights. NPC's main challenge is its lack of resources
(finance and human). Sri Lanka still faces great trials as
torture cases are still widespread. But to a certain extent, Sri
Lanka is a couple of steps ahead with their reform.

Nobody can guarantee that a similar gruesome situation will
not occur in Indonesia. Already we have "similar qualities" in
our country, though to a somewhat lesser degree, still they are
there -- civil conflict, corrupt system, economic gap, police
unprofessionality, politization of reform and human rights
issues, etc. Starting from police reform is a good opening.

The recent separation from the military provides greater space
for the police to reform. The presence of Law No. 2/2002 gives
the police greater authority to operate, which also means greater
responsibility and professionality. It also opens chances for the
public to monitor the police's performance though not really well
balanced. This is the one essential aspect of police reform,
especially if we link it to the blueprint of our own NPC, which
is currently under scrutiny.