Asian Human Rights Commission, Hong Kong
In 2008, Indonesia continued on the path to reform, but continued to stumble over issues such as religious freedom and indigenous people’s rights. This year marks the 10th anniversary since the downfall of Suharto, and is accompanied by a degree of optimism and progress concerning human rights. However, cases of torture and extrajudicial killings continue to be reported. The Special Rapporteur on torture and other cruel and inhuman treatment recently visited Indonesia and published his report, which confirmed the ongoing use of torture in institutions of justice such as the police and prisons, despite the country’s ratification of international law prohibiting the use of torture.
The end of Suharto’s authoritarian rule saw the implementation of a series of human rights laws enshrining fundamental freedoms such as the freedom of thought, the freedom of expression, and many other such freedoms that were nonexistent during his thirty-year rule. Successive Indonesian governments have since made certain efforts to address the country’s human rights situation, through the formal initiation of an ongoing reform period (known as reformasi). Amendments to the constitution, the implementation of human rights-related domestic laws and the signing and ratification of a number of major international agreements
Upon human rights are all commendable attempts by the Indonesian authorities to address the country’s human rights challenges.
Upon closer analysis, the government still has a long way to go in terms of achieving concrete improvements in the country’s human rights situation. Ten years after the
This article consists of extracts from the Asian Human Rights Commission’s State of Human Rights in Asia 2008 report. Contents of the report are available in PDF format by country online at the AHRC website, www.ahrchk.net. Interested persons may contact the AHRC to obtain printed copies of the full report.
beginning of reformasi, Indonesia continues to suffer from serious human rights violations. Restrictions on religious freedoms have increased, despite the fact that Indonesia is a secular and democratic country, and most victims of these human rights abuses await justice. Although the Indonesian government continues to demonstrate willingness to move forward by making changes on paper, the actual implementation in reality of these rights remain elusive for the most part. Progress continues at a less-than-satisfactory pace and most human rights defenders are, as a result, only cautiously optimistic, if at all, about the future of human rights in Indonesia.
It is apparent that the problem of torture by the police and brutality in Indonesia persists, despite numerous and repeated recommendations from various international institutions to the government to take immediate action in order to put an end to this. Most recently, the UN Special Rapporteur on torture has made a series of important recommendations (A/HRC/7/3/Add.7, paras. 73, 76).
The fact that no obvious progress has been made in this matter is underlined by continuing reports concerning cases of torture that are being committed by police officers in different parts of Indonesia. The AHRC has documented cases of torture in Indonesia for several years and has continued to receive such cases in 2008. These cases represent only a fraction of those actually taking place.
Despite Indonesia’s ratification of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 10 years ago in 1998, torture remains an integral part of the police force’s practices. It is used as a common method of interrogation. It is used mainly as a method for extracting confessions from suspected criminals. Torture is predominantly used against the poor and those from marginalized sections of society. It is possible for people who have the money to pay their way out of situations in which they may be subjected to torture. The threat of torture is also used to extract money.
The general public in Indonesia perceives torture by the police as being a normal occurrence. Being taken into police custody will likely lead to torture depending on your social class background. A lack of complaints by victims of torture is accentuated when the victim in question has actually committed a crime, due to feelings of guilt and the sense that they “deserved” the violent treatment.
In the July 2008 periodic review of Indonesia’s compliance with the Convention against Torture, the Committee Against Torture noted several procedural shortcomings in its concluding observations (CAT/C/IDN/CO/2). Prolonged detention in police custody for up to 61 days, the absence of systematic registration of detainees, as well as restricted access to lawyers and independent doctors, allow for torture to take place not only occasionally, but as reports show, in a widespread and systematised fashion. The committee re-emphasized the Special Rapporteur’s earlier recommendations that
Officials at the highest level should condemn torture and announce a zero-tolerance policy vis-à-vis any ill-treatment by State officials. The Government should adopt an anti-torture action plan which foresees awareness-raising programmes and training for all stakeholders, including the National Human Rights Commission and civil society representatives, in order to lead them to live up to their human rights obligations and fulfil their specific task in the fight against torture. [A/ HRC/7/3/Add.7, para.76, March 2008]
Since no significant progress has been made with regard to police brutality, the authorities need to prioritise the following recommendations.
Firstly, torture must be criminalized under the Indonesian Penal Code. Currently there is no adequate definition of torture, and cases of torture that appear before a court therefore do not receive adequate treatment or result in appropriate punishment and reparation for the perpetrators and victims respectively. The Special Rapporteur on torture noted that, “all allegations of torture and ill-treatment should be promptly and thoroughly investigated ex-officio by an independent authority with no connection to the authority investigating or prosecuting the case against the alleged victim” (para. 77). However, due to the lack of such investigations, many officers remain immune to criminal procedures.
Secondly, the impunity enjoyed by police officers, especially with regard to the practice of torture, must be combated as a priority. Everyone, including government officials and law enforcers, must be equal before the law—the criminal justice system needs to be non-discriminatory. This is still not the case in Indonesia, where in fact no state official that is alleged to have used torture has been found guilty of related offences as a result.
Thirdly, the Indonesian police a culture of respect for human rights into their everyday work ethics. This transition will naturally take time, and the legal framework, as discussed above, is essential in steering this transition in the right direction. The maximum detention period of 61 days protects the perpetrators of torture from having medical evidence obtained against them by independent doctors. This period also increases the risk that a person in custody will actually be subject to torture and police brutality. As recommended by the Special Rapporteur on torture, the maximum detention period should be radically shortened, preferably to 48 hours, in conformity with international standards.
In 2008, the killing of civilians by the security forces continued. In such incidents, the civilians are usually unarmed, while the police or the military apply excessive force without limiting the use of firearms. Such officers or soldiers do not adhere to international standards of interrogation, arrest and do not apply professional practices when encountering civilians. Extrajudicial killings through the open use of firearms continue, and bringing the perpetrators to justice is difficult, in particular in cases involving the military.
Many of the reported cases of killings by the security forces, such as the police or the army, are related to disputes over land. With the economic development of Indonesia, private enterprises need increasing resources. State security forces while protecting such companies’ interests encounter resistance from local villagers who try to protect their land and livelihood. In May 2008, a man in North Sumatra died with severe burns on his body after the police arrested him on charges of theft. He was accused of having stolen an oil palm nut.
In May 2007, navy forces shot unarmed villagers who tried to interrupt a cultivation process by a company on disputed land in Pasuruan (East Java). In March 2008, an autopsy during the trial in a military court confirmed that the three villagers that had been killed, had died from shots to the back of their heads. The navy forces were allegedly instructed to use “any means necessary” to protect the activities of that Rajawali Nusantara Corporation. While the military court convicted 13 navy personnel for murder, their punishment ranged from only one- and-a-half to three years’ imprisonment. Only three were dismissed from the military and no compensation was paid to the victims.
In another case of military involvement in agricultural activities on disputed land, a military centre hired local staff who were ordered to attack protesting villagers. The order was given by a local village chief. One person died in the attack and several others were injured. The police investigation into the case has not taken the involvement of the military into account.
The use of firearms by the police often threatens the lives of civilians in Indonesia. Procedural safeguards to limit the use of weapons are not put in place or not applied. This leaves many police officers with the possibility of abusing power without fear. Regulations for identification, arrest and investigation are not normally practiced. The AHRC has, for example, received a case where a police officer in civilian clothes did not identify himself as a police officer or show his identity card but proceeded to search the bag of a suspect on a motorbike whom he had stopped. When the motorbike driver tried to escape from the scene that he interpreted as being a robbery by a civilian, the officer shot at him. The victim was brought to a police hospital and then changed to a public hospital, eventually surviving the attack. The arbitrary use of arms by law enforcement officials is of great concern. This case indicates how easily law enforcement officials can use arms even when the situation does not warrant it.
Human rights defenders
After a visit by Hina Jilani, the then-UN Secretary General’s Special Representative for human rights defenders to his offices in Papua, Albert Rumbekwan, a prominent activist as well as a staff member of the National Human Rights Commission, was intimidated by members of the Indonesian military. This event revealed the hostile environment for human rights defenders in Indonesia, in particular in the sensitive region of Papua, where activists have even been subjected to torture, according to local sources.
When Indonesia was reviewed by the Committee against Torture, the latter recommended in July 2008 that, “The State party should take all necessary steps to ensure that all persons, including those monitoring human rights, are protected from any intimidation or violence as a result of their activities and exercise of human rights guarantees, and to ensure the prompt, impartial and effective investigation of such acts” (para. 25).
In the easternmost region of Indonesia, the human rights situation continues to be hostile, and arrests and killings have increased over recent years. As the military presence in Papua has increased, so have the hostile actions against human rights defenders, including lawyers, civil-society activists and NGO workers. One of the most commonly used means against human rights defenders is branding them as being linked to independence movements in Papua. Such a claim opens the door for arrest, fabrication of charges and often results in detention. A climate of fear and avoiding public discussion on many human rights issues has been engendered as a result.
After her visit, Jilani recommended that,
Legislation and procedures be instituted to prevent the prosecution of human rights defenders aimed at their harassment for conducting activities that are legitimately a part of their function for the defence of human rights. For this purpose, it is important also to sensitize judicial and prosecutorial officials as well as the police so that human rights activities are not criminalized. [A/HRC/7/28/Add.2, para. 90, January 2008]
Since then, no institutional improvements to provide safeguards for human rights activists have been put in place.
Also in 2008, the AHRC continued to receive cases of obstruction of the work of human rights defenders in other regions of Indonesia. Not only were no protective mechanisms set in place, the existing, flawed justice mechanisms were even used against human rights defenders. On 14 August 2008, eight staff members of the Legal Aid Institute in Aceh (LBH Aceh) were convicted and sentenced with imprisonment for distributing pamphlets about the activities of PT Bumi Flora, a plantation company operating in East Aceh. For many years, locals suffered from the companies’ expansion, including being pressured to sell of their land for unreasonably low prices. The eight staff of LBH Aceh were convicted for disseminating hate material against the government and for committing a violent act in writing against it. Such vague laws continue to leave wide room for abuse of judicial and prosecutorial powers.
Repression of human rights work continues today, through intimidation and selective prosecution. These practices drain important human resources, distract organizations from vital projects, and threaten those who would speak out against injustice. In this environment, the creation of a vibrant civil society remains difficult to achieve, in particular in rural areas and against the economic interests of military-owned or supported companies.
The case of Munir
The murder of prominent human rights activist, Munir Said Thalib, is a recent example of a politically motivated killing in Indonesia. The investigation into the case, which is ongoing, is struggling to progress through the country’s flawed justice system. The lack of progress in this high-profile case is causing pessimism about any major and imminent change in the overall human rights situation in Indonesia. Since the beginning of its investigation in 2004, the proceedings have thus far exposed a number of institutional flaws, including deep-set politicisation of the judicial process.
Munir died of arsenic poisoning on a Garuda Indonesian Airways flight en-route to Amsterdam on 7 September 2004. Four years on, the alleged involvement of high-ranking government officials in the conspiracy has yet to be clarified for reasons related to ongoing and widespread government impunity in the country. Over the years, the course of the investigation has brought with it a mixture of hope and disappointment, making it difficult to predict its final outcome.
One example of the erratic developments in the case can be seen in the changing fate of Pollycarpus Priyanto. In December 2005, Pollycarpus was indicted for the murder of Munir and was sentenced to 14 years in prison by the Central Jakarta District Court. In October 2006, the Supreme Court acquitted him of the murder charge, and charged him for faking documents instead. In January 2008, the Supreme Court then found him guilty for the murder of Munir, just as the district court had two years earlier, and sentenced him to twenty years in prison. Although justice has been served to an extent (Pollycarpus is only one piece in a much bigger puzzle), the inconsistencies during the investigation into his role in Munir’s murder have diminished the confidence of human rights activists and supporters alike in achieving swift justice. Instead, progress in the case has been slow and stunted. It is therefore understandable when more recent developments such as the arrest of former National Intelligence Agency (BIN) deputy director, Muchdi Purwopranjono, in June 2008, though comparatively more significant, is only met with muted enthusiasm.
While many are reluctant to celebrate the developments in the investigation in the past year, for fear that any celebration may be premature, it is by no means a reflection on the real significance of the case. The case’s significance firstly lies in its attempt to achieve justice for an individual who has been subjected to a serious human rights violation: a politically motivated killing. Munir was killed for reasons related to his work as a human rights defender, which included calling for the cessation of the dominance of the military, and speaking out for victims who had been tortured, killed, or who had disappeared in Indonesia.
From a broader perspective, the case is significant for a number of reasons. It is significant in the fight against Indonesia’s long tradition of government impunity. The process, and more importantly, the outcome of the investigation into Munir’s death, will have an impact on determining the course of human rights development in Indonesia. It will be a telling indicator of any real commitment the government may have to promote and protect human rights in the country, as the removal of impunity is a key prerequisite for progress. This will be relevant for achieving justice in countless other cases of widespread killings, torture in Indonesia.
As the murder of one prominent human rights activist has shown, impunity for state actors continues in Indonesia. To date, no top-ranking government official has been convicted for any human rights violations that have taken place, and continue to take place, in the country. Far from being demonstrative of the government’s lack of involvement in the vast number of gross human rights violations that have occurred, it is indicative of a system that is failing to deliver justice when state actors are involved.
The exemption of government officials from any semblance of accountability, even at present in Indonesia’s supposedly democratic environment, comes as no surprise. The origins of the country’s extensive impunity can perhaps be traced to the 1965 massacre that preceded Suharto’s presidency. Although the authoritarian dictatorship of the former president has long since fallen, the military coup that led to Suharto’s thirty-year rule remains among the many gross human rights violations that have by-passed thorough investigation precisely because of government involvement.
The tradition continues to this day, where no justice or redress has been achieved for the estimated half a million to one million people that were detained, tortured and/or killed by the former military dictatorship, during the coup in which it took power, on grounds that they were suspected communists. Gross violations of human rights in Indonesia’s past involving government officials, which are not limited to the 1965 massacre, but also include the events in East Timor in 1999 and many others,hinder the present government’s ability to introduce a system of genuine checks and balances that are a cornerstone of any democratic governmental system. The lingering burden of unresolved cases from the past detracts from attempts to investigate officials today. Furthermore, Suharto is still revered in certain quarters for Indonesia’s rapid economic growth and development during his thirty-year rule, despite the level of human rights violations and corruption that frequently occurred under his reign. Any investigation involving the government under Suharto’s rule would immediately put into question his former role, and ultimately open further inquiries into the legitimacy of his presidency. This has only served to exacerbate the difficulties encountered when unraveling the knots of governmental impunity that have long existed since the 1965 massacre.
Is it possible for the present government to move forward and combat the country’s widespread problem of impunity without first addressing past violations? In order to address this question, it would be useful to first recount the major problems in the country’s institutional framework that cause impunity, which have plagued Indonesia in recent years.
Human rights court law
One notable problem sustaining impunity in Indonesia is the limited jurisdiction of existing mechanisms put in place to address human rights issues. The jurisdiction of ad hoc human rights courts in the country is limited to gross violations, such as genocide and crimes against humanity. Even then, thorough investigations and due process in cases of gross violations, such as the May 98 riots, or Trisakti & Semanggi, have been rejected by the Office of the Attorney General in the past, and no justice has been achieved. The ineffective power of Komnas HAM, the national human rights institution, to conduct investigations beyond their initial inquiries, and the generally bureaucratic nature of the system, has meant that many cases are left unresolved.
Although findings made by Komnas HAM are transmitted to the Office of the Attorney General, it is the Office of the Attorney General that has the authority to reject or initiate criminal proceedings, no matter how significant the findings may be. Several such cases have in fact been rejected without reasonable justification. As the prosecutor general is still subject to appointment by the president, and many alleged perpetrators of justice continue to hold positions of power, the failure to launch investigations into gross violations of human rights has been seen as a political act rather than an outcome of a rule of law process. A Constitutional Court ruling in 2008 clarified that the Office of the Attorney General has to prepare a judicially acceptable investigation before the parliament would be in a position to then set up an ad hoc human rights court. These limitations allow impunity to persist in the country. Past gross violations of human rights reported so far to Komnas HAM do not yet cover the full extent of past abuses in Indonesia. Other cases such as the 11 Tribes Massacre have not even been reported to Komnas HAM yet. Faltering progress in prominent cases and the continuing fear of reprisals for reporting politically sensitive cases is sufficient to force victims into remaining silent. Another problem that has served to exacerbate Indonesia’s impunity is the lack of accountability of military and law enforcement officers.
No real effort has been made at this time to address the problem of impunity. It remains glaringly ever-present, given the number of unresolved cases that have accumulated in the past, as well as the countless number of cases that are currently disregarded because they do not qualify as being ‘gross violations’. A recent move in October 2008 to revive the Special Committee on the 1997/1998 Abduction of Activists seems to indicate some effort towards addressing impunity in that case. The committee’s plan to summon President Yudhoyono, as well as retired General Wiranto, retired Lieutenant General Prabowo Subianto, and retired Lieutenant General Sutiyoso for questioning is prima facie a serious demonstration of the atate’s desire to eradicate impunity. However, given approaching general elections in 2009, the sincerity of these recent developments is put into question.
It is clear that much more needs to be done if the deeply entrenched problem is to be successfully addressed in the near future. The government should consider extending the courts’ jurisdiction over investigative proceedings. The attorney general should make full use of his mandate as restated in the recent Constitutional Court judgment instead of hiding behind dubious interpretations of the law. Finally, the institution of the attorney general as a whole is still too open to being influenced by political interests.
At the end of 2008, the government and the parliament were discussing a review bill of the law on military tribunals (Law No. 31/1997). The government has agreed to the parliamentary proposal that any ordinary criminal offences committed by the members of the military have to be brought to ordinary civil criminal courts. However, the government proposed that the investigations for such cases are to be conducted by the military police. Until such a bill is passed, crimes committed by members of the military will continue to be investigated and tried by the military, even though this presents a conflict of interest.
The death penalty
Indonesia has ratified the International Covenant on Civil and Political Rights (ICCPR), and thus has to guarantee the right to life for all citizens. A speedy abolishment of the death penalty is not likely according to the government’s international position, in which it referred to its sovereignty during the discussion of the Universal Periodic Review (UPR) outcome in 2008. In the process, Indonesia stated categorically that,
The death penalty remains part of Indonesia’s positive law, namely the Indonesian Penal Code. The provision related to capital punishment was retained by decisions democratically taken through a parliamentary process. The issue has also been the subject of various public debates, and only last year was brought to the Constitutional Court for review, which decided that the application of the death penalty remains fully compatible with the Constitution. [A/HRC/8/233/Add.1, para. 9, June 2008]
The constitutionality of its application in cases of illicit drug trafficking has been challenged, as referred to by the government during the UPR process, at the Constitutional Court level. The Constitutional Court’s judges voted six to three that the Law on Narcotics does not infringe upon the right to life, and in so doing, delivered a deplorable verdict. Professor Manfred Nowak, the UN Special Rapporteur on torture, concluded in his March 2008 report that the “death penalty should be abolished. While it is still applied, the secrecy surrounding the death penalty and executions should stop immediately” (para. 89).
In 2007, the UN General Assembly passed a resolution urging all states still practicing death penalty to put in place a moratorium on executions. Despite being a member of UN Human Rights Council, Indonesia instead headed in the opposite direction, and carried out executions in numerous criminal cases, ranging from murder to charges under the Narcotics Law. In the draft of the Corruption Eradication Law as well as in the draft of the Narcotics Law, Indonesia declared the death penalty as a maximum punishment. In the review draft of the Criminal Code, the death penalty is still provided for.
The justice process that can lead to the application of the penalty is facing problems. As part of the reform process and civil society engagement, it is apparent that there are serious flaws in the Indonesian justice system. The justice rendered by the system in Indonesia is often partial, susceptible to bribery, corruption and grave errors. This makes the sentencing to death highly questionable and fraught with risks of grave, irreversible travesties of justice. Ultimately, it is not the severity of the punishment that will deter crimes and bring justice for the victim, but it is the certainty that perpetrators will be convicted after a just and transparent trial in court, under a legal process that finds persons guilty based on evidence. Indonesia, as a state party to the ICCPR is expected to take progressive measures to abolish the death penalty, not to retain it.
Fair trial and criminal procedure
The obligations contained in the ICCPR with regard to fair trials and, as a result, to criminal procedure, are fully applicable to Indonesia. However, the implementation of some of the laws, including the Criminal Procedure Code, shows serious shortcomings in this regard. The weakness of the Indonesian Criminal Procedure Code and its implementation has ensured that the country remains far from being able to guarantee fair trial. This is evident in the following example.
In 2008, David Eko Priyanto, Imam Hambali (alias Kemat), and Maman Sugiyanto were accused of the murder of a person called Asrori, a name connected by the police with a body found in a sugar cane field. The Jombang District Court sentenced Priyanto to 12 years’ imprisonment and Kemat to17 years, while Sugiyanto is still under trial. In a second concurrent case, Very Idham Henyansyah (alias Ryan), a person accused of serial killing, admitted that Asrori was in fact one of his victims and was buried near his house. Initially, the police refused to accept the notion that they had committed a serious error in their investigation. Later the dead body found at the sugarcane field was re-identified as being Fauzin Suyanto. The police then arrested Rudi Hartono who was alleged to have murdered Mr. Suyanto. However, Priyanto and Kemat remain imprisoned and a judge continues with the trial of Maman Sugiyanto. No action has so far been taken by the Indonesian government, the Office of the Attorney General or the Supreme Court to correct this flagrant miscarriage of justice.
Protection of human rights
Indonesia has undergone several legislative reforms since the beginning of the reformasi era. New legislation such as the Human Rights Court Law, or the Law on Witness and Victims Protection, has equipped the country with new institutions.
In addition to legislation enacted on the national level, at the regional level within Indonesia, Sharia Law continues to be applied. Such law is applied for Muslims and is seen as not conforming with constitutional standards. The UN Committee against Torture in its July 2008 report advised that Indonesia “should review, through its relevant institutions, including governmental and judicial mechanisms at all levels, all local regulations in order to ensure they are in conformity with the Constitution and with ratified legal international instruments, in particular the Convention” (para. 15).
A newly elected judge in the Constitutional Court has already raised doubts about the legality of the ongoing application of Sharia Law at the regional level. Such laws, the judge explained, are unconstitutional. However, there has not yet been a review of the law.
The Aceh Criminal Code from 2005 introduced corporal punishment, which stands in contrast with the human rights reform ongoing in the rest of the country. This legislation needs to be reviewed as it contravenes constitutional rights as well as the ICCPR and the Convention against Torture. The Special Rapporteur on torture stated in his March 2008 report that “the Government should ensure that corporal punishment, independently of the physical suffering it causes, is explicitly criminalized in all parts of the country” (para. 75).
The Penal Code
The Indonesian Penal Code has been criticised for years for lacking a proper definition of torture. The current version makes reference to “maltreatment” in articles 351-358, which differs from the definition of torture as provided in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UN Special Rapporteur on torture in March recommended that “torture should be defined and criminalized as a matter of priority and as a concrete demonstration of Indonesia’s commitment to combat the problem, in accordance with articles 1 and 4 of the Convention against Torture, with penalties commensurate with the gravity of torture” (para. 73).
Torture cases are usually labelled as “maltreatment,” and court cases against perpetrators of torture systematically end in dismissals or acquittals. Minor sentences or acquittals cannot be reconciled with the grave nature of the crime of torture. The Committee against Torture in its July 2008 recommendations suggested that Indonesia either amend the existing Penal Code or adopt a stand-alone bill specifically on torture. Legislation on crimes of torture should “take into account their grave nature, as set out in paragraph 2, article 4, of the Convention” (para. 13). In that regard, the government announced during this year’s UPR that it “is currently considering the amendment of article 351 of the Code on ill-treatment. In particular, this amendment will bring the formulation of the Code to cover the crime of torture as defined in the Convention against Torture, an instrument to which Indonesia is a party” (A/HRC/8/233/Add.1, para. 20, June 2008).
Article 160 in the Penal Code prohibits oral or written incitement in public to actions against the authorities or disobedience to statutory provisions or official orders under such provisions. Article 161 further criminalizes publicizing such material and allows professional licenses, such as the license to work as a lawyer, to be revoked. In 2008, cases were reported in which human rights defenders were charged under these vague laws and sentenced to imprisonment. Article 160 is often used to charge human rights defenders with offences when they question decisions and actions by local authorities. Such forms of public protest should instead be protected, in particular in the case of human rights defenders. Articles 106 and 110 have in the past been used to charge people with “incitement to separatist movements”. In crisis regions like Papua, rights activists are frequently charged under these articles and have suffered years of imprisonment as a result.
The Criminal Procedure Code
The problems of Law No. 8 of 1981 on Criminal Procedure occur in both its substance and in its application. The first problem is the limited number of explicit and clear provisions that are provided for under the code. A second problem is the implementation of the law in practice. The code has loopholes with regard to safeguarding a fair trial, for example. The length of the period of detention, the lack of guarantees of the rights of the accused, the absence of protection from torture, no adequate monitoring, and lacking provisions to challenge the trial mechanism, present serious obstacles when trying to uphold a justice process that conforms with international standards.
At this time, the Indonesian government is preparing a new draft of the Criminal Procedure Code. A new draft Code would have to repair the imperfections of the existing code and give emphasis to the protection on human rights and fair trial if it is to be considered an improvement.
Starting in 1998, the Indonesian police force was to be radically reformed. However, 10 years after the reform period started, police brutality, corruption and a lack of accountability are still prevalent. What are the reasons for this?
The Indonesian police force is still struggling with the problems of a violent, militaristic history and the lack of a professional civilian approach to policing, despite an expressed aspiration for “cultural change”. The general public still perceives the police as being brutal and they are generally distrusted and often even feared. Despite continued reforms since 1998, the Indonesian police are still seen as discriminatory, unprofessional, unresponsive and discourteous.
It is apparent then that the police culture needs to be changed. The ideal is a civilian police force: a professional, proportional, and democratic police force that has a high regard for human rights, transparency, accountability, and the supremacy of the rule of law. Cultural change must happen through interplay between institutional arrangements and educational avenues. For example, educational programmes in the Police Academy are a welcome initiative, but institutional arrangements, such as the criminalization of torture, must accompany the training. The National Police Commission receives hundreds of complaints every year and has developed an expertise on needed reforms and suggests disciplinary actions based on its findings. However, none of the valuable recommendations by the commission have a binding affect and reform attempts do not result in change.
The Committee against Torture in its July concluding observations noted that Indonesia
Should take the measures necessary to ensure that criminal convictions require evidence other than the confession of the detainee and ensure that statements that have been made under torture are not invoked as evidence in any proceedings, except against a person accused of torture, in accordance with the provisions of the Convention. The State party is requested to review criminal convictions based solely on confessions in
“Despite continued reforms since 1998, the Indonesian police are still seen as discriminatory, unprofessional, unresponsive and discourteous ”order to identify instances of wrongful conviction based on evidence obtained through torture or ill-treatment, to take appropriate remedial measures and to inform the Committee of its findings. [Para. 13]
However, to date, the Indonesian Police is still functioning according to confession-based logic. Such logic is highly susceptible to torture as a method for producing fast, though not necessarily true, confessions.
The AHRC recommends that the Indonesian government take functionin”g measures to introduce an evidence-based investigation system. satisfactorily…. This will reduce the incentives for the police to use torture as a method of interrogation. Additionally, the allocation of resources to the police would help in combating torture, to the extent that it is used as a cost effective method for achieving results under resource deprived circumstances. Anti-corruption measures must accompany greater resource allocation. Additionally, in order to facilitate this transition, courts have to stop considering confessions produced through torture as being valid evidence. Such evidence should, according to Indonesian law, not be considered as being valid, but in practice it is frequently used.
Detention and custody
A further area of concern with regard to the Indonesian police force is the lengthy duration of police custody, 61 days. The UN Special Rapporteur on Torture in March 2008 pointed out that, “As a matter of urgent priority, the period of police custody should be reduced to a time limit in line with international standards (maximum of 48 hours)” (para. 78).
Although the Indonesian Criminal Procedure Code authorizes this lengthy detention only under special circumstances, this has become the standard period of detention. This stands in direct opposition to international standards, and it is problematic for a number of reasons: it makes police abuse more likely, and the visible traces of torture are likely to have disappeared after such a long period of time. The Special Rapporteur further requested that, “The maintenance of custody registers should be scrupulously ensured.” (para. 81). This recommendation had not been implemented at the time of writing.
Other than the quasi-complaint mechanism PROPAM in the police, no other specific complaint mechanism is available. It has become obvious that the police internal complaints mechanism, PROPAM, is not functioning satisfactorily, as it is neither preventive nor remedial, nor is it specific to each case of torture. PROPAM also lacks transparency when it comes to the procedure and outcome of a complaint. Furthermore, the punishments meted out by PROPAM in torture cases are not severe enough, and therefore do not reflecting the gravity of the crime of torture. An alternative (or complimentary) approach would be the expansion of the mandate of Komnas HAM to enable it to further investigate individual cases of torture as human rights violations. Another monitoring body concerning the police is the National Police Commission, which is mandated to recommend reforms to the police. The lack of any other effective complaint procedures has made them a target for hundreds of complaints every year and they now effectively act as a complaint receiving body without being specifically mandated or funded to do so. While its establishment was an important step forward, its lack of authority over the police makes it unable to perform adequately in ensuring human rights.
Despite all the explained problems, some positive steps towards a more accountable and generally more humane Indonesian police force can be identified. Police officers are increasingly being trained in human rights and international standards; demilitarising training forms part of the Police Academy; a number of national mechanisms have been established to monitor ill-treatment by the police, including the National Police Commission; all police members who are charged with a criminal offence are now tried in civil courts, rather than in military ones. In addition, the government has established a complaints mechanism with regard to maltreatment on the part of public officers, and a telephone hotline has also been set up which is directly connected to the local police. These are all important initiatives, which deserve praise. However, the impact of these initiatives may, at least partially, depend on an amended Indonesian Penal Code, which has not yet materialized. The urgent need for an amended Penal Code, especially concerning the criminalization of torture and appropriate punishment therefore, can not be stressed enough.
In the last two years there have been many prosecutors convicted by the Corruption Eradication Commission on charges of corruption beyond IDR 500,000,000 (about USD 50,000). These cases indicate the extent of the problem of corruption in the country’s prosecution system. The Committee against Torture in its July 2008 report pointed to the “collusion and nepotism in the public prosecution service” and recommended that,
The State party should reform the Attorney-General’s office to ensure that it proceeds with criminal prosecution into allegations of torture and ill-treatment with independence and impartiality. In addition, the State party should establish an effective and independent oversight mechanism to ensure prompt, impartial and effective investigation into all allegations of torture and ill-treatment. The State party should also publish, without delay, the reports of Komnas HAM investigations. [Para. 25]
The problem of corruption was also recognized by President Bambang Yudhoyono, who announced that the two biggest problems Indonesia faces are endemic corruption and gross violations of human rights. In the last few years the government has put unprecedented efforts into the fight against corruption. However, many Indonesian-based groups point out the neglect of gross violations of human rights in the president’s working agenda. Besides working on ordinary crimes, the Office of the Attorney General also initiates judicial investigations and prosecutes cases of gross violations of human rights, such as past massacres, the May riots and other large-scale incidents of human rights violations. Beforehand, Komnas HAM typically prepares an inquiry report on the case and passes it to the office. Since findings made by Komnas HAM remain undisclosed to the public, there is no telling whether or not the reasons for rejection of cases by the office of the Attorney General are justifiable. The office has attempted to justify its rejection of cases on the basis of an alleged lack of clarity concerning the law with regard to whether the office should wait for a parliamentary decision before starting investigations.
The main barrier to the launching of investigations appears to be one of willingness on the part of the Office of the Attorney General. Article 43.2 of the Human Rights Court Law requires the parliament to recommend the setting up of an ad hoc court based on allegations of a violation, which is then made effective by a presidential decree. Such allegations are to be made by Komnas HAM, but in 2008, Komnas HAM’s authority to make such allegations was challenged in the Constitutional Court. The Court ruled that for the investigation to be judicial, it has to be conducted by the Office of the Attorney General, which should therefore not wait for a parliamentary recommendation but conduct its investigation upon the submission of the inquiry report by Komnas HAM. Only this would bring the parliament in a position to act upon an allegation.
Political interference is suspected by civil society groups in both gross violation and individual human rights cases. Two recent cases exemplify this. An investigation produced enough evidence against former justice minister Yusril Ihza Mahendra concerning corruption. At the time of writing, the Office of the Attorney General had still not acted upon this evidence and launched a prosecution. Legal expert Romli Atmasasmita, who took part in drafting the Indonesian Corruption Court Bill and is recognized as having criticised institutions such as the office on several occasions, had, however, been arrested without delay on similar charges by the office.
The Prosecutorial Commission, a monitoring body set up by a presidential decree, has received numerous complaints of misconduct concerning the offices of several prosecutors around the country. The commission in question does not have the mandate to direct reforms, however. Strengthening the role of this commission with regard to disciplinary measures against prosecutors and reforms within the institution is a required to reduce political interference and to establish an effective, impartial Office of the Attorney General. The direct selection of the prosecutor general by the president is a second factor that limits the independence of his institution, notably when dealing with politically sensitive cases.
In Indonesia’s court system, the Constitutional Court is widely seen as one of the most independent and competent courts in the country. District and provincial courts are often reported as giving poor judgments or delaying judicial processes.
In a recent case, Hartoyo was harassed, tortured and seriously humiliated by police personnel due to his sexual orientation. The court sentenced the policemen to a fine of the equivalent of 10 US cents and imprisonment for a few weeks, which was not even applied. An appropriate punishment for degrading treatment and torture would include at least several years of imprisonment. Instead, Justice Sugeng Budiyanto, who was hearing the criminal case, justified the light punishment with the argument that “the perpetrators are police officers who are needed by their country, the perpetrators confessed their acts, both parties forgave each other, and the perpetrators committed a minor offence”. In addition, the judge ordered the victim to review his moral standing concerning sexual orientation.
This is just one example of the lack of education, training, and familiarity with the concept of the rule of law among members of the judiciary. The Committee against Torture in its 2008 review of Indonesia’s legal system explained that “as the State party continues its process of transition to a democratic regime committed to upholding the rule of law and human rights, it should strengthen the independence of the judiciary, prevent and combat corruption, collusion and nepotism in the administration of justice, and regulate the legal profession” (para. 22). Little implementation of this and other similar recommendations is noticeable.
The Judicial Commission, a monitoring body established by the constitution, has conducted investigations upon received complaints about cases of misconduct. In many such cases the Judicial Commission has recommended disciplinary action against the concerned judges to the Supreme Court, the authority responsible for issuing such actions. However, none of the hundreds of recommendations have been taken up by the Supreme Court, and the implicated judges continue to serve in their offices. The Supreme Court has only used such information when reviewing a judge’s record when considering promotions, notably into the Supreme Court.
An effective witness protection program is a necessary requirement for a country suffering from serious human rights violations. The delays in bringing Indonesia’s Witness and Victims Protection Agency into effect are of concern. The law defining the institution was enacted more than two years ago, however the president selected its commissioners only in 2008. The Committee against Torture in July 2008 denounced the “absence of implementing regulations, the mistreatment of witnesses and victims, and the insufficient training of law enforcement officials and allocation of Government funds to support the new system” and requested Indonesia to “without delay, establish a witness and victim protection body, with all relevant measures required to implement Law No. 13/2006, including the allocation of necessary funding for the functioning of such a new system, the adequate training of law enforcement officials, especially in cooperation with civil society organizations, and an appropriate gender-balanced composition” (para. 31).
While commissioners have been elected, the institution has not resolved where it will physically locate its offices, or selected the staff to form its secretariat. In the climate of impunity that continues to prevail in Indonesia, and with the political influence that many of the alleged perpetrators of past human rights violations continue to have, many cases have not yet come to the fore, and this can be significantly attributed to the lack of effective witness protection, as witnesses are not confident enough to come forwards at present.
National Human Rights Commission
As a national human rights institution, Komnas HAM is unlike many others in the Asian region. While its strength lies in its credible work, independence and the commissioners’ civil society backgrounds, its weakness can be attributed to limitations to its mandate and its weak link with the Office of the Attorney General.
The Committee against Torture requested in 2008 that “the State party should ensure the effective functioning of Komnas HAM by adopting adequate measures, inter alia, by strengthening its independence, mandate, resources and procedures, and reinforcing the independence and security of its members. Members of the government and other high-ranking officials should fully cooperate with Komnas HAM” (para. 24)
However, Indonesia’s review under the UPR process in 2008 pointed out that in many cases, Komnas HAM relies on the prosecutor general’s willingness to launch prosecutions. The recommendations of Komnas HAM to prosecute cases are being ignored by the prosecutor general. There is also no institutional requirement for the prosecutor to follow the recommendations of Komnas HAM.
Komnas HAM does not receive full support for its work from the government. The Committee against Torture noted concern “at the fact that members of the Government have stated that military officials should ignore the summons from Komnas HAM in connection with its investigations of gross violations of human rights, such as in the Talangsari, Lampung killing case (arts. 2 and 12)” (para. 24).