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.