Treaties and RI's token gestures

Treaties and RI's token gestures

Bayu Wicaksono, Civil Society for Democracy (YAPPIKA), Jakarta

One may wonder why the Indonesian government often boasts in
international forums that "Indonesia has ratified treaties and,
therefore, Indonesia has never had any problem with the
international community".

It is not clear, however, whether this is actually a part of
our foreign policy or not.

Ratification is the official validation of state/international
documents by the legislative body, especially that of laws,
interstate agreements and treaties on international laws. Based
on international provisions, any government of a country that has
ratified international treaties is obliged to abide by all the
stipulations contained in the relevant accords.

Without accompanying domestic laws, ratification actually has
no significance. The most outstanding example is Law No. 5/1998
ratifying the Convention Against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment (Convention Against
Torture/CAT).

In its implementation here, however, this law fails to
consider torture a violation in Indonesia and in imposing proper
punishment on those committing torture. The time has come to urge
the Indonesian government to produce a law that can guarantee the
implementation of CAT.

Consequently, with the ratification of Law No. 5/1998, CAT has
become part of the domestic law in Indonesia. Yet there is, as
yet, no formal recognition of torture as a violation. The impact
is the absence of punishment commensurate with a crime like
torture, in any of the laws in Indonesia.

When a case of torture is brought to court in Indonesia, the
court will charge the perpetrator with violating articles 351-357
of the Criminal Code on ill-treatment. The meaning of ill-
treatment differs from the definition of torture according to
CAT, i.e. any act by which severe pain or suffering is
intentionally inflicted on a person to obtain information or a
confession by a public official.

Law No. 5/1998 has failed to adequately deal with various
cases of torture. Article 4 of CAT stipulates that the state
shall make torture a violation under the criminal code and lay
down appropriate settlement provisions with due regard to the
severity of this violation.

It means that based on implementation, the Indonesian
government at present does not abide by article 4 of CAT. So, to
give Law No. 5/1998 more concrete significance rather than mere
moral commitment, it is urgent to make torture a violation that
is liable to severe punishment, because the law contains no such
punishment.

The same is true of Law No. 7/1984 ratifying the Convention on
Elimination of Discrimination Against Women. Among women, this
law serves as a shield of protection from being marginalized.

Yet, it seems that in Indonesia only a few are aware that
basically ratification is an initial step by which the
international legal system enters the legal structure of a
government with the function of global protection. But its
implementation varies a great deal from one country to another.

Sri Lanka is very choosy about its ratification of
international treaties. Yet when its government ratifies an
international agreement, it automatically makes available a law
enabling implementation to proceed without any constraints.

This is reflected in its Law No. 29/1994 on the Convention
Against Torture and Other Cruel, Inhumane or Degrading Treatment
or Punishment, which supplements several articles on sanctions,
fines and compensations.

Without accompanying and/or implementation rules, the
Indonesian government in various international meetings has been
frequently questioned about the realization following
ratification of treaties.

Making such ratification of international documents known to
the public and the consideration of concrete steps toward
lawmaking to guarantee speedy implementation after every
ratification should thus be a priority. Such laws, of course,
should contain provisions on prison terms, fines and
compensation.

The Declaration of Commitment to HIV/AIDS Control, which was
organized by a special session of the UN General Assembly in June
2001, has experienced the same fate. Indonesia, then represented
by health minister Ahmad Sujudi, signed the declaration. A number
of items to be carried out in 2003 and 2005 are included in the
declaration.

Point 48, for example, states: "In 2003, national prevention
targets are set, by understanding and discussing various factors
that can cause the spread of an epidemic and the increase in
vulnerability, so as to reduce the incidence of HIV among the
groups already identified, in the specific local context, which
have of late registered high HIV infection or according to public
health information indicated high risk of new infection".

Meanwhile, point 94 states: "At the national level the
government conducts periodic national studies with civilian
public participation, particularly HIV/AIDS sufferers, vulnerable
groups and health care personnel. The studies deal with the
progress already reached in realizing the commitment as well as
identifying problems and impediments in making achievements and
ascertaining widespread dissemination of findings".

But how can the nationwide prevention targets be achieved in
the absence of implementation rules?

Mere ratification does not mean much to the national legal
system.