Taufik Basari, Attorney, Legal Aid Institute of Jakarta, Indonesia
The United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment obliges state parties to “take the effective legislative, administrative, judicial or other measures to prevent acts of torture” and “ensure that all acts of torture are offences under its criminal law and punishable by appropriate penalties”. Indonesia ratified the Convention in 1998 and is bound by those obligations. However, it has not reformed its legislation in line with the Convention. In fact, the act to ratify the Convention, Law No. 5 of 1998, contains only two articles: the first affirming that Indonesia ratifies the Convention and the second affirming the validity of the act itself. It does not offer any additional regulations or commentary to see the Convention implemented.
In its Initial Report to the UN Committee against Torture in 2001 (CAT/C/47/Add.3), the Indonesian government stated that it has fulfilled its obligations under the Convention through existing legislation. It argued that the prohibition of torture is covered in the Constitution of Indonesia, the Human Rights Act (Law No. 39 of 1999), and Human Rights Court Act (Law No. 26 of 2000). It argued that torture is already defined in the Human Rights Act. Additionally, the government argued that articles 422, 351, 353, 354, 355, 53 and 55 of the Penal Code already address criminal punishment.
Do these laws fulfill Indonesia’s obligation under the Convention against Torture? Can they be implemented to punish the act of torture? Specifically, are the provisions of the Penal Code, Human Rights Act and Human Rights Court Act sufficient to be consistent with the state obligation under the Convention? Does the Indonesian government need to reform existing legislation to bring it into line with the Convention? These questions can best be answered by first recalling the provisions of the Convention.
Recalling the Convention against Torture
The definition of “torture” under article 1 of the Convention against Torture provides that
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The Convention does not specifically define “other cruel, inhuman or degrading treatment or punishment”. But as read in article 16(1) those acts are also prohibited, and by referring to article 1 the difference is in the degree of pain or suffering. This can also be found in article 2 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which states that “torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment”.
The definition of torture under article 1 of the Convention contains several key elements: 1
a. Acts which intentionally inflict severe physical or mental pain or suffering;
b. For an illicit purpose;
c. Committed, consented or acquiesced to by a public official; and,
d. Not arising only from, inherent in, or incidental to lawful sanctions.
Severe pain or suffering is identified as both physical and mental. In the first report of the Special Rapporteur on the question of torture in 1986, P Kooijmans explained that
Torture is the violation of par-excellence of the physical and mental integrity-in their indissoluable [sic] interdependence-of the individual human being. Often a distinction is made between physical and mental torture. This distinction, however, seems to have more relevance for the means by which torture is practiced than for its character. Almost invariably the effect of torture, by whatever means it may have been practiced, is physical and psychological. [E/CN.4/1986/15, 19 February 1986, para. 4]
An illicit purpose may include obtaining information or a confession, punishing a victim, intimidating or coercing a victim or another, or any discriminatory reason. To distinguish between torture and other ill-treatment “the Convention in principle only applies in a situation in which a person has been deprived of his freedom” 2 and in cases where a victim is “under the factual power or control of the person inflicting the pain or suffering”. 3
The state through its public authority has a responsibility to give the citizens a sense of security. Therefore, torture in the meaning of the Convention is not an ordinary crime because it is done by “the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Kooijmans explains in his first report that “consequently, State responsibility is apparent¡K However, private acts of brutality¡K should not imply State responsibility, since this would usually be ordinary crime offences under national law” [para. 38].
Article 2 of the Convention against Torture is a common provision on implementation, in keeping with article 2 of the International Covenant on Civil and Political Rights. It holds that, “Each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Article 4 expands on this, stipulating that
1. Each State party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Therefore, torture must be punishable as an extraordinary crime, with appropriate penalties. Burgers and Danelius explain that even though it “does not mean that there must be a specific, separate offence” to cover torture, “the criminal law must cover all cases falling within the definition in article 1 of the convention”. 4 It is important to note that the obligations under article 4 of the Convention cannot be separated from the definition of torture under article 1. The criminal provisions enacted must be in conformity with the definition of torture.
Penal Code of Indonesia does not comply with the Convention against Torture
As noted, in its Initial Report to the Committee against Torture, the government of Indonesia argued that Indonesian criminal law already contains provisions to prohibit torture:
Although it does not use the term “torture”, the Penal Code of Indonesia (KUHP) and the Law of Criminal Procedure (KUHAP) already contained provisions which implied the prohibition of torture. Articles 351 to 358 of the Penal Code of Indonesia, for example, prohibit the act of “maltreatment” which is very close in meaning to torture as defined in the Convention. [Para. 69]
In another part of the Initial Report, the government added that under Indonesian criminal law
There are legal provisions on the classification of torture, such as articles 422, 351, 353, 354, 355, 53 and 55 of the Penal Code. Article 422 of the Penal Code states that an official who in a criminal case uses force to secure a confession or information will be punished with a maximum of four years’ imprisonment. [Para. 75]
In paragraphs 76 to 79 of the Initial Report the government spelled out how articles 351 and 353 to 355 could be said to comply with the Convention:
Article 351 of the Penal Code states that:
(a) The maltreatment will be punished with a maximum of two years and eight months in jail or a fine of 300 rupiahs;
(b) If the action causes serious injury, the guilty person will be punished with a maximum of five years in jail;
(c) If it causes death, it will be punished with a maximum of seven years in jail;
(d) The maltreatment is equal to intentional damage to health.
Article 353 of the Penal Code states that:
“(a) Maltreatment committed with premeditation shall be punished with a maximum imprisonment of four years;
(b) If the act results in a serious physical injury, the offender shall be punished with a maximum imprisonment of seven years;
(c) If the act results in death, he shall be punished by a maximum imprisonment of nine years.”
Article 354 of the Penal Code states that:
“(a) A person who deliberately causes to another serious physical injury, shall, being guilty of serious maltreatment, be punished by a maximum imprisonment of eight years;
(b) If the act results in death, the offender shall be punished by a maximum imprisonment of 10 years.”
Article 355 of the Penal Code states that:
“(a) Serious maltreatment committed with premeditation shall be punished by a maximum imprisonment of 12 years;
(b) If the act results in deaths, the offender shall be punished with a maximum imprisonment of 15 years.”
The report also identifies articles on an “attempt to commit crime” (article 53) and the legal provision for “those who intentionally provoke the execution of the act” (article 55) [paras 80-81].
In fact, the Penal Code does not contain the elements of torture as read in article 1 of the Convention against Torture. “Maltreatment” is not the same as torture as it does not entail purpose, the involvement of a public authority or the degree of suffering.
It has also been made clear by the Committee against Torture that traditional legal terms such as “maltreatment” do not properly address acts of torture. Chris Ingelse spells out the Committee’s views as follows:
The special nature of torture would be masked by classing torture together with traditional terms such as mistreatment or abuse of authority. And while torture is certainly covered, to a large extent, by national terms, there is one important difference. A substantial characteristic of torture is that the actions are performed by the State. Bringing torture under the traditional national terms and provisions would damage an important qualitative and distinguishing aspect of torture. 5
The European Court of Human Rights has also held this position that to make torture a crime under the traditional definitions in the Penal Code is not appropriate. In Selmouni v. France, for instance, the court citing the Tyrer Case stated that “the Convention is a living instrument which must be interpreted in the light of present-day conditions”. 6
Under any circumstances, the provisions of the Indonesian Penal Code, which have been in place since 1946 and are based upon the earlier Dutch Penal Code, do not absorb many of the elements of torture, including the following:
a. The application of “maltreatment” in the Penal Code is limited to physical harm and does not account for “mental pain or suffering”.
b. The use of torture “for an illicit purpose” is not encompassed by articles 351, 353, 354 and 355 of the Penal Code. Article 422 mentions use of force “to secure a confession or information” but does not describe what is meant by this use of force nor the consequences for the victim.
c. Articles 351, 353, 354 and 355 and other provisions of the Penal Code are applicable to any perpetrator and are not specific to the actions of state agents, thereby denying the “important qualitative and distinguishing aspect of torture” noted above. And even though article 422 of the Penal Code is applicable to “an official” it still lacks other elements such as the level of suffering and the illicit purposes of the act. The provisions also do not take into consideration command responsibility in acts of torture.
It should also be noted that Indonesian prosecutors always use articles 351, 353, 354 or 355 to allege ill-treatment of any kind. The use of article 422 is unheard of, since government officers are rarely prosecuted for criminal abuses although torture is widespread in Indonesia. In its written response to the Committee against Torture in 2001 the government mentions only one case of torture, which happened in Aceh during 1999, and even in that case article 422 was not applied.
Other legal reforms have not satisfied Indonesia’s obligations under the Convention against Torture
The second amendment to the Constitution and Human Rights Act establish a principle that cannot be implemented
In its Initial Report to the Committee against Torture the government of Indonesia argued that “article 33(1) of Law No. 39 [of 1999 on Human Rights] resembles the Convention in stating that ‘every person has the right to be free from torture and other cruel, inhuman or degrading treatment or punishment'” (para. 66). It also held that the definition of torture has already been adopted in article 1(4) of that Human Rights Act. In the same report the government mentioned that the second amendment of the Constitution of Indonesia, adopted in 2002, provides under article 28i(1) for the right not to be tortured.
However, neither under the Constitution nor the Human Rights Act is the prohibition on torture self-executing. Although it exists in principle it is not automatically applied in torture cases and therefore torture still is not punishable. To be implemented, it requires penal regulations. Without these, the provision cannot be enforced and the Convention has not been applied. It remains a principle without implementation.
The Human Rights Court Act does not meet state obligations under the Convention
The Human Rights Court Act allows for perpetrators of “gross violations of human rights” to be brought before a special court, the Human Rights Court. Although the government of Indonesia has argued that the Human Rights Court Act also penalises acts of torture, in fact its provisions too are not in line with state party obligations under the Convention.
For an act of torture to fall under the authority of the Human Rights Court, it needs to be part of an act of genocide or a crime against humanity. Article 9 stipulates that such acts must be widespread or systematic. To meet this requirement, an act of torture must consist of so many elements and conditions as set down in common practice through international tribunals such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, or the International Criminal Court. Even when the Human Rights Court Act was applied in establishing the Ad Hoc Human Rights Court for East Timor, the requirement that the crimes be “widespread or systematic” became the main point for contention. Therefore, most incidents of torture in Indonesia–which occur during ordinary criminal process–cannot be punished under this legislation.
A new criminal law is needed to apply the Convention against Torture in Indonesia
Indonesia needs to reform its criminal law to make all acts of torture punishable in accordance with the Convention against Torture. This would best be done by adopting a new separate act on torture. The new act should provide a full definition of torture in line with article 1 of the Convention, appropriate penalties, a special criminal procedure for dealing with torture and other measures meeting all obligations in the Convention. The alternative would be to amend the current Penal Code to bring in the same definition, penalties and procedural changes.
By adopting a new separate act to prohibit torture it would be possible to introduce many supporting regulations above and beyond ordinary criminal procedure, which are not sufficient to make the act of torture punishable. It could also more readily adopt other obligations in articles 2 through 16 of the Convention. Other countries can set an example. Sri Lanka introduced the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994. Section 12 of that act gives the same definition of torture as article 1 of the Convention, and adopts all of its elements. For punishment, section 2(4) provides imprisonment of 7 to 10 years.
In the event that a new law is not drafted, at the very least the Penal Code must incorporate new provisions on torture in order to comply with the Convention. Since traditional provisions on maltreatment are not in line with the definition of torture, it is not sufficient to rely on those provisions in order to punish torture. The Penal Code must incorporate the definition of torture in article 1 of the Convention in full, and should provide appropriate penalties. However, in view of the fact that preparations for a new criminal law to replace the existing Penal Code of 1946 have been underway since 1977 (at least), and there is as yet a lack of discussion about incorporating torture into the draft, a new law specifically criminalising torture should be preferred.
1. See Deborah E Anker, Law of Asylum in the United States, 3rd edn, 1999, p. 485.
2. Chris Ingelse, The UN Committee against Torture: An Assessment, 2001, p. 211.
3. J Herman Burgers & Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1988, p. 120.
4. Burgers & Danelius, The United Nations Convention against Torture, p. 129.
5. Ingelse, The UN Committee against Torture, p. 218.
6. Selmouni v. France, (25803/94) 1999, ECHR 66 (28 July 1999), para. 101.