The United Nations Committee Against Torture, in response to Indonesia's initial report (CAT/C/47/Add.3) at the Committee's 492^nd and 495^th meetings, held on November 16 and 19, 2001 respectively (CAT/C/SR.492 and 495), made the following conclusions and recommendations, found in Concluding Observations: Indonesia. 01/11/2002. A/57/44, paras. 36-46. (Concluding Observations/Comments).

The following is an assessment by the Asian Legal Resource Centre (ALRC) of the performance of the State of Indonesia in the context of some of these key recommendations, and the consequences of their non-implementation for the rule of law in the country.

At the inception it may be convincingly said that the State of Indonesia has failed to see a link between the use of torture and the breakdown of the rule of law. In fact the inverse seems to be true—that is the State seems to work on the assumption that it is the use of torture that can prevent crime and violence! This lends support to the use of torture as an instrument of social control, as a mode of extracting confessions that can be used as evidence and to punish suspects.

The problem begins with the definition of torture itself. The Committee recommended that the State “...amend the penal legislation so that torture and other cruel, inhuman or degrading treatment or punishment are offences strictly prohibited under the criminal law, in terms fully consistent with the definition contained in article 1 of the Convention. Adequate penalties, reflecting the seriousness of the crime, should be adopted...”

No definition of torture

Section 21 of the 2005 Supplementary Report of the Republic of Indonesia states that “torture should be conducted not only by public authorities, but also by individuals”. The State, in its eagerness, to demonstrate that its definition is far superior to that which is found in the international Convention against Torture, has downplayed the gravity attached to the crime itself.

Indonesia has clearly failed to recognize the fundamental difference between a crime committed by an ordinary person and a representative of the State. This seeming apparently deliberate attempt to confuse an important aspect of the Convention defeats the very purpose for which the Convention was promulgated—viz. to address a grave crime committed by State-actors. In doing so, the specificity of the crime has been subjugated to the level of 'assault,' watering down the gravity of the crime and its punishment. There is a significant difference between a person committing a crime with the backing and powers of the State, and those that arise between ordinary citizens. If the State authorizes its representatives to commit crimes through the abuse of powers, it breeds a violent, repressed and fearful society, in which there can be no room for democracy to flourish. Such authorization leads to impunity, which has become a major issue in Indonesia.

A culture of impunity

The obfuscation of the definition of torture and the resultant diminishing of its gravity as a crime has also impeded upon the adoption of legal, administrative and other measures required for the fulfillment of Indonesia's obligations under the Convention against Torture. The government seems to be aware of this when it wrote that “...for prosecutors, there is no specific definition on torture…(which) makes it difficult for prosecutorial criminal proceedings” (Article 131 of the Supplementary Report of 2005). The obvious question is as to why the State is reluctant to come up with a definition of torture that is consistent with that in the Convention.

Judging from past experience, one of the obvious reasons seems to be the State's inclination to provide impunity to the perpetrators of torture. The use of torture has been found to be the easiest and quickest way of getting 'information' despite common acceptance that 'information' obtained under duress is unlikely to be accurate. Also since the State is unwilling to spend sufficient resources on training in conducting proper investigations or in acquiring appropriate technology, it relies heavily on the cheapest method, torture.

Defective complaint and redress mechanisms

In addition, the State continues to use torture extensively on the basis that there is at least tacit approval for its use from the public. The truth is that the State has systematically denied any avenue for cases of torture to be reported. And despite recommendations by the aforementioned Committee to “establish an effective, reliable and independent complaint system,” no attempt has been made to comply. The absence of an independent mechanism ensures that to file a complaint, the victims have to approach the same authorities that are responsible for committing the torture. Obviously, therefore there is no guarantee that the case will be investigated or perpetrators punished.

The denial of redress for victims is deliberate and systematic. A mechanism that is much spoken of is the Human Rights Court created under Law No. 26/2000, with an apparent intention to provide for the investigation and adjudication of cases of gross human rights violations, including torture. However, its performance has been extremely poor with not a single case been investigated or tried. The Tanjung Priok massacre, considered one of the gravest human rights violation cases in recent times in the country was heard by the Human Rights Court, only to result in the full acquittal of all suspects under dubious circumstances. A similar fate befell cases of human rights violations in East Timor and Abeyapura, where all the suspects were also acquitted.

The failure to prosecute alleged perpetrators stems from the refusal by the Attorney General’s department to conduct proper investigations. The present law—No. 39/1999—stipulates that the National Human Rights Commission (Komnas HAM) must conduct a “pro-justicia inquiry” and submit its findings to the Attorney General for him to conduct further investigations and take prosecutory action.

Komnas HAM claims that since 2002 it has conducted a number of independent investigations into gross human rights violations, such as the abductions of democracy activists in 1998/99, but the Attorney General has refused to take further action on the basis of petty technicalities. Consequently in its November 2006 report, Komnas HAM, thoroughly condemned the Attorney General's office for its failure to proceed with investigations and prosecutions of these cases. However such reports have been ignored by the State, effectively closing any recourse to achieving justice through the Human Rights Court.

Also, one of the main sources of evidence in cases of torture is medical examination. However, in none of the cases reported, were medical reports accurate or conclusive. The conclusion seems to be that the medical authorities may well have colluded with the alleged perpetrators in providing inaccurate reports.

Since acts of torture have been reduced to the status of ‘assault,’ the punishment meted out so far has not exceeded disciplinary action, even in proven cases of torture. Obviously this has discouraged victims from resorting to judicial solutions. In the case of the killing of prominent human rights activist Munir—who was poisoned while on a flight to Amsterdam—the criminals are still at large after two years due to defective investigations.

This kind of impunity even in such a high-profile case, inevitably leads to the further erosion of the credibility of the justice system, and to citizens taking the law into their own hands, which can only lead to a serious breakdown of the rule of law.

Concluding observations

When the government of Indonesia states that torture is not widespread, it is not disclosing its deliberate attempt to deny victims justice. That is, there is no independent complaint mechanism. Even if a complaint is made, investigations are superficial. If a human rights violator is found guilty, little or no punishment will be handed down. Doctors are not expected to provide genuine medical reports. In proven cases of torture, the victim will receive no reparation.

Regarding adequate legal mechanisms—both to prohibit torture and punish perpetrators-- these are purported to be incorporated in the National Penal Code. Paradoxically, the National Penal Code has been in the process of revision for the past ten years and there is no guarantee that this will be completed anytime soon. This essentially denies victims any avenues to lodge complaints concerning torture and no guarantee their case will be investigated and prosecuted.

This lack of a functioning legal mechanism to address the problem has serious consequences. Victims of torture suffer isolation, anxiety and fear. The victims experience feelings of guilt and are reluctant to lodge complaints while suffering in silence. In cases where torture has resulted in death, it is also very rare that the victims' families would want to lodge a complaint. It is against this background that the Asian Legal Resource Centre would like to remind Indonesia of its obligations under the CAT and ICCPR, to which it is a State Party, and as a Member of the Human Rights Council.

In compliance with the requirements of Article 2.3 of the ICCPR:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

In order to achieve these requirements, Indonesia is urged to do the following;

1. The existing law No. 5/1998 against torture must be amended so that it becomes an effective instrument in prohibiting torture and also grants redress to the victims;
   

2. Defining torture in such a manner that it conforms with that found in the Convention Against Torture—not treat it simply as an assault. Torture is only committed by those who represent the State;
   

3. Punishment must reflect the gravity of the crime of torture. Compensation must be adequately provided for the victim to recover and lead a normal life;
   

4. An independent and effective mechanism for complaints and investigations must be established;
   

5. The National Human Rights Commission, Komnas HAM, should be authorized to visit places of detention, investigate complaints of torture and recommend suitable compensation. Such investigations must be acted upon by the Attorney General without fail;

6. When complaints of torture are made to judges, the complaints must be investigated under his/her scrutiny;

7. Doctors who are familiar with domestic laws should be appointed to hospitals that can conduct proper medical examinations into cases of torture.