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.