Caveat - VOLUME 13/II, JUNE 2010 - LBH Masyarakat

CAVEAT
INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS

VOLUME 13/II, JUNE 2010

MAIN REPORT |

Beyond OPCAT
Ratification

Torture in Indonesian detention facilities is not
a new story. Human rights groups have long
been calling for Indonesia to sign the Optional
Protocol of the Convention against Torture
(OPCAT) aimed at reducing the problem;
however the protocol itself raises some
interesting questions explored in this report. It
is strongly understood that OPCAT ratification
would be an effective first step in preventing the
practice of torture within the Indonesian
detention system. However, as OPCAT
ratification is not self-executed, it alone will not
be sufficient. A more concrete system must be
discussed on how to use OPCAT as an effective
regulatory tool from a human rights perspective.

ADDITIONAL FEATURE |

Elite Anti-Terror Squads
Need More Training

This month has seen the Indonesian anti-terror
force continue to carry out violent raids on
suspected terrorists throughout the country. It
must be said that anti-terrorism measures in the
current political climate are sorely needed;
however the gung-ho trigger happy conduct of
the Indonesian anti-terror squads has attracted
negative press both within Indonesia and
abroad. Despite this, the anti terror squads still
seem to act with impunity and enjoy an almost
blameless existence.

OPINION |

Government Violates
International Law by
Delaying Reforms to End
Torture
In 2010, the AHRC continued to receive
information on several cases of torture in
Indonesia. Twelve years after the ratification of
the Convention against Torture and Other Cruel,
Inhuman
or
Degrading
Treatment
or
Punishment (CAT) by the Indonesian
government, there is still a routine and
widespread use of torture and ill-treatment of
suspects, especially in police custody. Torture is
systematically used as a way to extract
confessions or information to be used in
criminal proceedings despite its prohibition
under international law applicable to Indonesia.

www.lbhmasyarakat.org
CAVEAT:
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C A V E A T | june 2010 | 1

CONTENT
THE EDITOR’S CUT | 2
MAIN REPORT | 3
Beyond OPCAT Ratification

ADDITIONAL FEATURE | 9

Elite Anti-Terror Squads Need More Training

OPINION | 11
Government Violates International Law by Delaying Reforms to End Torture

RIGHTS IN ASIA | 16
REPORTAGE | 17
CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta,
Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced
without prior permission of the LBH Masyarakat.
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editorial piece or article, please contact us: contact@lbhmasyarakat.org
Editorial Board:
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Answer C. Styannes, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Grandy Nadeak, Vina
Fardhofa
Special Adviser:
Maeve Showell
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C A V E A T | june 2010 | 2

THE EDITOR’S CUT
On 26th of June 1987, the Convention against
Torture and other Cruel, Inhuman,
Degrading Treatment or Punishment (CAT)
came into force after ratified by 20 state
parties. Now June 26 is commemorated as
the International Day in Support of Torture
Victims.
Indonesia has been a State Party of CAT
since 1998. Despite this, the practice of
torture is still widespread in Indonesia.
Calls to the government to take necessary
measures in order to prevent torture have
been gaining strength for many years. One
specific example is urging the government
to ratify the Optional Protocol (OPCAT)
which obliges State Parties to allow visits by
sanctioned international and national
bodies to places of detention. In other
words, the Indonesian government will
have to allow an international monitoring
institution to inspect detention facilities and
it will have to create its’ own National
Preventive Mechanisms (NPMs).
This month’s CAVEAT Main Report
highlights this issue and asks us to think
more beyond the OPCAT ratification. It is
noteworthy that OPCAT ratification is not
the end of the line, it is only the means for a
greater end: the prevention of torture in
detention facilities in Indonesia. Thus, we
need to start thinking now –while urging
the government to ratify OPCAT- what kind
of NPMs would be best to implement once
the protocol has been signed.

commemorating the anti-torture day this
year.
Still related to torture, our Opinion section
has a succinct overview of torture in
Indonesian in the form of the Statement of
AHRC on practice of torture in Indonesia.
The statement generally highlights key
issues such as torture criminalization,
revision on Indonesian Penal Code and
Criminal Procedure Code, police reform, and
OPCAT ratification.
Last but not least, allow us to express our
gratitude for all of your support over the
last year. CAVEAT is celebrating its first
birthday in this edition and we are fully
aware that your support contributes greatly
in the continuance of this publication. We
will keep trying our best to help you
maintain a better understanding on the day
to day human rights situation in Indonesia,
so please kindly let us know your
comments, suggestions and criticisms to
contact@lbhmasyarakat.org.
Happy anti-torture day and thanks for your
ongoing support!
The Editor

Our featured article takes a look at
Indonesia’s elite anti terror squads, and
calls for greater training to ensure that the
anti-terror fight does not step out of bounds
of human rights. In our Rights in Asia
column we have updates on human rights
situations in Nepal, Philippines, and South
Korea
In Reportage, you may find series of
activities
conducted
by
Indonesian
Networks against Torture (JAPI) –which
LBH Masyarakat is a member of, in

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MAIN REPORT

Beyond OPCAT Ratification
INTRODUCTION

According to a report compiled by Manfred
Nowak, the UN Special Rapporteur on
Torture in Indonesian detention facilities is
Torture, there are three main factors which
not a new story. Human rights groups have
facilitate the prevalence of torture in
long been calling for Indonesia to sign the
Indonesia. These factors are the lack of
Optional Protocol of the Convention against
definition and prohibition of torture in
Torture (OPCAT) aimed at reducing the
accordance with Convention against
problem; however the protocol itself raises
Torture and other Cruel, Inhuman, or
some interesting questions explored in this
Degrading Treatment or Punishment (CAT),
report.
the excessive length of police custody, and
the absence of an
The subject of torture in
independent detention
Indonesia is woefully under The subject of torture in Indonesia is
facilities
monitoring
woefully under reported. There has
reported. There has been no
been no comprehensive documentation,
mechanism.3 A draft of
comprehensive
the Indonesian Penal
documentation, research, or research, or report which has been able
report which has been able to determine the exact number of Code (KUHP) revision
torture cases in Indonesia. A report by
to determine the exact United Nations Committee against has addressed the first
factor regarding the lack
number of torture cases in Torture was published in 2008,
definition
and
Indonesia. A report by however the concluding observations of
United Nations Committee only stipulated that there are prohibition in regard to
against
Torture
was “numerous, ongoing credible and the practice of torture.
published in 2008, however consistent allegations of routine and The excessive length of
the concluding observations widespread use of torture and ill- police custody has been
discussed
in
the
only stipulated that there treatment of suspects in police custody”
reviewing process of the
are “numerous, ongoing
Indonesian Criminal Procedure Code
credible and consistent allegations of
(KUHAP). Yet the last contributing factor routine and widespread use of torture and
1.
the lack of an independent mechanism to
ill-treatment of suspects in police custody”
monitor detention facilities has not come to
No specific statistics were given. In same
fruition.
year, the Jakarta Legal Aid Institute (LBH
Jakarta) conducted research which revealed
For
several
years
human
rights
that approximately 83% of detainees had
organizations have been calling for the
been tortured or experienced ill treatment
Indonesian government to ratify the OPCAT.
in detention in Jakarta and some
2
It is firmly believed that the OPCAT
surrounding areas.
ratification will go a long way in ensuring
that detention facilities in Indonesia are
The LBH Jakarta report, however limiting in
monitored by independent parties. The
terms of its size, has shown us that a more
Protocol obliges the government to allow
detailed investigation is needed. We must
visits by either national or international
not let the absence of data and statistics
independent bodies to places of detention,
allow the subject to be ignored. In fact, the
to oversee the facilities and the treatment of
absence of such data may indicate how
detainees. It is strongly understood that
widespread and the practice of torture is
OPCAT ratification would be an effective
and reflect the fact that it is difficult to
first step in preventing the practice of
document or detail in a comprehensive
torture within the Indonesian detention
report.
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system. However, as OPCAT ratification is
not self-executed, it alone will not be
sufficient. A more concrete system must be
discussed on how to use OPCAT as an
effective regulatory tool from a human
rights perspective.
THE SUBSTANCE OF OPCAT

The main aim of OPCAT is located in Article
4 which obliges each State Party to allow
visits by the Subcommittee on Prevention of
Torture and other Cruel, Inhuman,
Degrading Treatment or Punishment
(hereinafter referred as the Subcommittee)
as well as appointed national bodies to
places of detention.4 It is worth noting that
the term ‘places of detention’ has a rather
broad meaning. The OPCAT defines ‘places
of detention’ as places where persons “… are
or may be deprived of their liberty, either by
virtue of an order given by a public
authority or at its instigation or with its
consent or acquiescence”5 so it is to be
understood that the visiting bodies shall be
given permission to visit not only detention
facilities but also correctional facilities.
The Subcommittee is an international body
under the United Nations which was
established by OPCAT6 and has the mandate
to visit places of detention, assist State
Parties in their national preventive
mechanisms, as well as to cooperate with
any relevant institutions or organizations in
order to prevent torture in places of
detention.7
To
ensure
that
the
Subcommittee can exercise its mandate,
State Parties are required to provide
unrestricted access to any places of
detention and any information related to
detention,
including
permitting
Subcommittee to interview anyone involved
in the detention facilities.8 Only urgent and
compelling grounds recognised by Article
14 paragraph (2) of OPCAT such as national
defence and public safety can be used by
State Parties to object to a visit of the
Subcommittee to places of detention within
its territory.9
The subcommittee is an important part of
the OPCAT organization but by no means

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the
only The main aim of OPCAT is
monitoring
located in Article 4 which
mechanism. As obliges each State Party to
visits
by
the
pointed out by allow
University
of Subcommittee on Prevention
Bristol
OPCAT of Torture and other Cruel,
Degrading
Research Team Inhuman,
Treatment or Punishment
in their policy
(hereinafter referred as the
paper published Subcommittee) as well as
in
December appointed national bodies to
2009, what is places of detention
actually at the
heart of OPCAT system is the National
Preventive Mechanisms (NPMs) these are
the national organizations set up to monitor
detention facilities in the absence of the
Subcommittee. They have been described as
“a crucial matter for the Subcommittee and
effectiveness of the system to put in place
by the OPCAT”.10 The Subcommittee in its
first annual report also recognised the
important role of NPMs by stating that “...
unless
the
[national
preventive]
mechanisms are able to fulfil their role as
the on-the-spot visiting mechanisms for the
prevention of ill-treatment, the work of the
Subcommittee will be seriously limited and
adversely affected”.11
Countries that have ratified OPCAT are
obliged to maintain, establish or designate
one or several NPMs within one year after
the ratification or accession.12 According to
Article 19 of the optional protocol, NPMs
shall be granted the power to regularly
examine the treatment of persons in places
of detention, make recommendations to the
relevant authorities, and to submit
proposals and observations concerning
existing or draft legislation.13
OPCAT does not regulate how the State
Parties maintain or establish these
mechanisms or what kind of bodies should
formed to meet the obligations set out in
OPCAT. The protocol only regulates the
basic rules such as mandate, obligations,
rights and authorities. The rest is left up to
the State Parties with an important note:
State Parties shall consider the principles
relating to the status of national institutions
for the promotion and protection of human
rights14, this is referred to as the Paris
Principle.15 The Subcommittee has also
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published the Preliminary Guidelines for the
On-going
Development
of
National
Preventive Mechanisms (NPMs) which shall
be used by State Parties in maintaining,
establishing, or designating their NPMs.16
OPTIONS AVAILABLE

As OPCAT allows for an amount of freedom
in the establishment of NPMs if Indonesia
ratifies the protocol it will be faced with a
number of options as to the kind of body to
give this responsibility to. Which
institutions will be given the mandate to
conduct torture prevention mechanism?

The Denmark Ombudsman Act, the
Parliamentary Ombudsman has authority to
inspect any institution or company and any
place falling under his competence
including state prisons, detentions, and
secure institutions for juvenile offenders.22
A third country which implements the
second model is Estonia. However, unlike
Maldives which gives the mandate to
conduct NPM to the national human rights
commission or Denmark which entrusts it
to the ombudsman, Estonia prefers to
impose the obligation to the Oigustkantsler
or Chancellor of Justice, an institution that is
quite similar to Indonesian Constitutional
Court as it has the power to conduct
constitutional review but also has functions
of the ombudsman.23

Currently 51 countries17 have ratified
OPCAT of which 32 have already designated
their NPMs.18 Using these 32 countries as an
example it can be seen that generally there
are three models which can If Indonesia is to ratify OPCAT, the The third model is one in
be considered by Indonesia. country had best start to think of which which multiple bodies
The first model is that the model of NPMs it plans implement in are entrusted with the
job. This system is
authority and obligation of the future. As previously mentioned the
employed by countries
the NPM is given to an government has one year following the
such as New Zealand and
institution
which
was ratification to maintain or establish
specially established to do NPM. Thus it is imperative that this United Kingdom. New
grants
the
so.
This
model
is discussion begin while waiting for the Zealand
government to fulfil its’ promise to
authority to conduct
implemented by France with
ratify OPCAT. Indonesia can choose one
its’ Contrôleur Général des of the three models or even can create NPM to four bodies
which are coordinated
Lieux de Privation de Liberté its own model. There are several things
by its Human Rights
(General Inspector of Places need to be considered, including the
19
Commission: the Office
of Deprivation of Liberty)
national budget, geographic conditions,
of Ombudsman, the
and in Germany with its’ and the current resources available.
Independent
Police
Bundesstelle zur Verhütung
Conduct Authority, the Office of the
von Folter (Federal Agency for the
Children’s Commissioner and the Inspector
Prevention of Torture)20, and also by several
of Service Penal Establishment of the Office
other countries including Honduras, Malta,
of the Judge Advocate General of the Armed
Senegal, and Switzerland.
Forces. The United Kingdom holds the
record for the country with the most
The second model is where the obligation
national preventive mechanism bodies
and authority to conduct NPM given to an
designating the task to 18 bodies
institution that already exists. In this case,
coordinated by Her Majesty’s Inspectorate
overseeing torture prevention is only one of
of Prisons.24 In the multiple-bodies model,
obligations of this institution. In this case
all of the bodies have same obligation which
usually this task is given either to a national
is to monitor places of detention with each
human rights commission or to ombudsman
body appointed to a different sub-section of
commission for example the Maldives. The
jurisdiction. In the United Kingdom, for
Maldives have given its national human
example, The Children Commissioner for
rights commission the mandate to conduct
21. Denmark is an example of a country
England has the authority to visit places of
NPM
detention for children.25
which has appointed the national
ombudsman to the role. Under Section 18 of

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BEYOND RATIFICATION: IN SEARCH FOR
EFFECTIVE NPMS

If Indonesia is to ratify OPCAT, the country
had best start to think of which model of
NPMs it plans implement in the future. As
previously mentioned the government has
one year following the ratification to
maintain or establish NPM. Thus it is
imperative that this discussion begin while
waiting for the government to fulfil its’
promise to ratify OPCAT. Indonesia can
choose one of the three models or even can
create its own model. There are several
things need to be considered, including the
national budget, geographic conditions, and
the current resources available.
Establishing an entirely new institution
specifically to deal with places of detention
is a fine idea in the sense that the new
institution will focus solely on the
monitoring of detention facilities. However
building a new organization from the
bottom up can be an expensive process and
is thus going to be met with objections form
a budgetary point of view. One central
institution could also prove to be less
effective in Indonesia given the country’s
large geographical area and practiced
decentralisation. Countries using a singleunified NPM are decentralised states with
relatively small geographic size and a
national constitutional authority, or the
presence
of
very
small
regional
governments with low populations.26 So in
this sense, it seems that idea to establish
one new central institution to deal with all
places of detention in Indonesia will most
likely not work effectively.
Budget and geographical issues should not
be a problem if the authority to conduct
NPM is given either to the National Human
Rights Commission (Komnas HAM) or the
Ombudsman as these two institutions exist
already in Indonesia and both have
representative offices in most parts of
Indonesia. The Ombudsman’s headquarters
is located in Jakarta, but it also has
representative offices in Jogjakarta, Kupang
(Nusa Tenggara Timur), Manado (North
Sulawesi), as well as in Medan, North
Sumatra. Komnas HAM has its headquarters
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in Jakarta and also has representative
offices in Padang (West Sumatra), Pontianak
(West Kalimantan), Jayapura (Papua), Aceh,
Ambon, and Palu (Central Sulawesi). Other
advantages in granting the authority to
conduct NPMs to existing institutions such
as Komnas HAM and Ombudsman is that it
is ‘more politically expedient, and ... to avoid
the danger of duplicating institutions and
mandates’.27 Nevertheless, it is important to
be noted that these institutions have many
other tasks and mandates so giving
additional resources28 – human, financial,
and logistical- is a requirement if Indonesia
decides to implement this model.
The limited resources problem can be
worked out if Indonesia implements the
third model of NPMs: the multiple-bodies
model. What can be done is Indonesia shall
share the authority to conduct NPMs to
several existing institutions which will focus
on detention issues related to their current
concern. For example, Komnas HAM shall be
given the authority to conduct detention
and correctional facilities for men and
immigration detentions as well as to act as
coordinator for the NPMs, whereas the
National Commission on Violence against
Women (Komnas Perempuan) shall be
granted obligation to conduct monitoring on
places of detention for women and
Indonesian Children Protection Commission
(KPAI) shall be the institution in charge of
monitoring the condition of children in
detention facilities and prisons. However
this model is not a problem-free model
either. Lack of coordination, gaps and
duplications are problems which are likely
to occur when a state implements this
model.29
TIME TO THINK

All of the models have their own advantages
and disadvantages. It is not easy to consider
which one is the best and most effective for
Indonesia in its current condition and this
paper will not be able to give the
comprehensive answer for that question.
What is most important is that it is no
longer time for us to solely urge the
government to ratify OPCAT, as the OPCAT

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per se will not be sufficient, it’s not self
executed. It will be up to the bodies
appointed by the government to see that the
protocol will fulfil its promise of limiting the
amount of torture in detention facilities.
Indonesia has witnessed how international
human rights ratifications can fall short of
achieving what they were designed to do.
The fact that torture is still not criminalised
12 years after Indonesian ratified CAT in
1998 is only an example. Ratifying
international human rights convention is a
good beginning, but when it comes to
human rights a good start is not enough. We
need the ratification to work in practice. For
this very reason, it is essential to think
beyond the mere ratification, to what will
need to be done as soon as the protocol is
signed.

First Annual Report of the Subcommittee on
Prevention of Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment;
CAT/C/40/2; 14 May 2008; para 29.
11

12

Article 17 of the OPCAT.

13


14

Article 18 para (4) of the OPCAT.

In this document there are several principles
need to be considered by States in establishing
national institutions including principle on
‘competence
and
responsibilities’
and
‘composition and guarantees of independence
and pluralism’. See Paris Principles National
institutions for the promotion and protection of
human rights; A/RES/48/134; 20 December
1993.
15

The English version of the guidelines may be
downloaded
on
http://www2.ohchr.org/english/bodies/cat/op
cat/mechanisms.htm
16

It is time for us to start thinking.
Concluding Observations of the Committee
against Torture INDONESIA; CAT/C/IDN/CO/2;
2 July 2008; Section C para 10.
1

See LBH: 83 Persen Tersangka Alami
Penyiksaan
http://nasional.vivanews.com/news/read/396lbh__83__penyidik_gunakan_kekerasan
2

See Report of the Special Rapporteur on
torture and other cruel, inhuman or degrading
treatment or punishment, Mission to Indonesia;
A/HRC/7/3/Add.7; 10 March 2008; Section 4
para 65.
3

4


5

Ibid.

6

See Part II and III of the OPCAT.

7


8


9

Article 14 para (2) of the OPCAT.

To learn more about the global status of
OPCAT
ratification
please
visit
http://www.apt.ch/content/view/138/152/lan
g,en/
18

Article 1 French Law of 30 October 2007
states that “The Contrôleur général des lieux de
privation de liberté, independent public body, is
in charge, without prejudice to the prerogatives
given by law to the Judiciary or any court, to
control conditions of management and convey of
people who are deprived of liberty, in order to
check enforcement of their fundamental rights.
In his duties, he doesn’t receive instructions
from any authority.”
19

The Federal Office for the Prevention of
Torture was established on 20 November 2008
with the statutory notice of the Federal Ministry
of Justice (Federal Bulletin, Nr 182, S. 4277)
20

University of Bristol and Arts & Humanities
Research Council The Optional Protocol to the UN
Torture Convention and the UN Convention on the
Rights of People with Disabilities: some common
issues (2009); p.3.
10

L E M B A G A

To see the list of OPCAT State Parties please
visit
http://treaties.un.org/Pages/ViewDetails.aspx?s
rc=TREATY&mtdsg_no=IV-9b&chapter=4&lang=en
17

B A N T U A N

Article 21 letter c of the Maldives Human
Rights Commission Act; Act No: 6/2006.
21

Section 18 of the Denmark Ombudsman Act;
Act No. 473 of 12 June 1996.
22

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Download the booklet of Chancellor of Justice
of
the
Republic
of
Estonia
on
http://www.oiguskantsler.ee/public/resources/
editor/File/INGLISKEELNE_KODULEHT/Areas_
of_activity/buklett_2008_ENG.pdf
23

See correspondence between United Kingdom
government and the Subcommittee in 2009
regarding the 18 bodies to conduct NPMs in UK
which
can
be
downloaded
on
http://www2.ohchr.org/english/bodies/cat/op
cat/docs/NPM/UKs_NPM.pdf
24

See England Children Act 2004; Article 2 para
(8). “The Children’s Commissioner or a person
authorised by him may for the purposes of his
function under this section at any reasonable
time – (a) enter any premises, other than a
private dwelling, for the purposes of
interviewing any child accommodated or cared
for there; and (b) if the child consents, interview
the child in private.”
25

Matt Polard Implementation of the Optional
Protocol to the Convention against Torture and
other Cruel, Inhuman, or Degrading Treatment or
Punishment (OPCAT) in Federal and other
Decentralized States (2005); p. 12.
26

Audrey Olivier and Marina Narvaez OPCAT
challenges and the way Forwards: The
ratification and implementation of the Optional
Protocol to the UN Convention against Torture;
Human Rights Centre University of Essex; p. 10.
http://projects.essex.ac.uk/ehrr/V6N1/OlivierN
arvaez.pdf
27

28

Ibid.

29

Ibid, p.12.

--

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ADDITIONAL FEATURE

Elite Anti-Terror Squads
Need More Training
This month has seen the Indonesian antiterror force continue to carry out violent
raids on suspected terrorists throughout the
country. It must be said that anti-terrorism
measures in the current political climate are
sorely needed; however the gung-ho trigger
happy conduct of the Indonesian anti-terror
squads has attracted negative press both
within Indonesia and abroad. Despite this,
the anti terror squads still seem to act with
impunity and enjoy an almost blameless
existence.
Indonesia quite literally exploded onto the
international terrorism map in 2002 with
the attack on Bali nightspots that came to be
known as the Bali bombings. The blasts,
which killed 202 people, sparked a massive
manhunt
for
the
individuals
and
organizations behind the attack (largely
thought to be Al-Qaeda linked militant
organization Jemaah Islamiyah). Since then
further attacks have occurred in Bali and
Jakarta and the anti-terror force has
responded in kind.
In the post 9/11 world a large amount of
research and resources have been directed
to anti-terror initiatives. The practice of
balancing human rights with the desire to
protect the public from violent individuals
and organizations has proved to be difficult,
not only for Indonesia but for many other
countries around the world. For example
the United States has also has sparked
debate in human rights circles around the
world for its treatment of terrorism
suspects in their infamous Guantanamo Bay
prison and a number of other developed
nations have had to grapple with subjects
such as racial profiling, hate speech and
vigilante groups.
There has been no shortage of media
interest in Indonesia and their domestic
anti-terrorism efforts. The US and Australia
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see the danger that Indonesia would pose if
it did indeed become a hotbed for
international terrorism. The U.S. has helped
to train the very soldiers that have carried
out some of the countries most vicious
raids.
The kill-to-capture ratio among the
Indonesian forces is alarmingly high. For
every four people that the force manages to
capture alive, one is killed. This fact has
raised few eyebrows as many believe that
the terrorists are so dangerous that they do
not deserve to live or have a right to fair
trial. However intelligence gathered by the
anti-terror units is by no means foolproof
and it is hard to establish in a gunfight
which people are terrorist masterminds and
which are simply people in the wrong spot
at the wrong time. For example, before the
internationally wanted terrorist Dulmatin
was killed in March of this year, police had
already claimed to have killed him some
months earlier, when he finally was
confirmed dead pictures of his lifeless face
were shown as gory kind of proof that this
time they had got it right.
This kind of media circus was also present
during
the
manhunt for
Noordin
Mohammad Top. Noordin was the alleged
mastermind behind the Bali bombings and
was eventually killed in a prolonged gun
fight in Bekasi. The successful capture of
wanted and dangerous men often
overshadows the death of other less
infamous people caught up in the battle,
many of whom cannot even be identified by
the authorities, showing that they are not
very fast up the terrorist food chain.
From an entirely different perspective, the
senseless killing of suspects does nothing to
quell the rage of hardliner Islamic groups
and can lead to further trouble with these
organizations. Also, dead suspects cannot
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help in assisting future cases as they are not
alive to be questioned. In the Dulmatin case,
South East Asian terrorism expert Sidney
Jones spoke to the media stating that in
every case that a top ranking terrorist is
killed the anti terror fight loses the
opportunity to extract valuable information.
Dulmatin was killed in an internet café and
photos of the scene show him dead over his
computer, his gun in his lap. These photos
have indicated to some experts that forces
had the opportunity to capture him alive if
trained properly in such matters.
Jones has also stressed that there needs to
be a review after the raids to ascertain that
such a level of violence was justified. When
police in the United Kingdom wrongly shot
dead Brazilian national Jean Charles de
Menezes in the wake of the deadly London
bombings, a huge investigation was
launched into the police response to
terrorism. There needs to be some sort of
checks-and-balances system, the squads
cannot run riot in the name of anti-terror.
Despite these facts, the Indonesian
government is routinely praised by
countries such as the United States and
Australia for its efforts on the ‘war on
terror’. In 2005 the United States lifted the
trade embargo that had stood as an example
of their soreness with Indonesia’s human
rights violations under the dictator Suharto.
The lifting of this embargo had largely to do
with Indonesia’s successful anti-terror
campaign.

Lastly, and this is true all over the world,
more money needs to be channelled into
research as to why people join and become
active in militant terrorist organizations.
This is especially true in Indonesia, a mostly
moderate Islamic country where factors
such as poverty, disillusionment with the
government, geographical isolation and lack
of formal education can help hardliner
organizations recruit troops.
-The kill-to-capture ratio among the
Indonesian forces is alarmingly high.
For every four people that the force
manages to capture alive, one is
killed. This fact has raised few
eyebrows as many believe that the
terrorists are so dangerous that they
do not deserve to live or have a right
to fair trial. However intelligence
gathered by the anti-terror units is by
no means foolproof and it is hard to
establish in a gunfight which people
are terrorist masterminds and which
are simply people in the wrong spot
at the wrong time.

It cannot be disputed that terrorism is not a
subject to make light of. Previous attacks
have shown that Indonesia can, and will be
attacked. However more funds need to be
channelled into further training of the elite
anti-terror squads so that they are more
equipped to handle confrontations without
so much bloodshed. This, in turn will assure
the greater safety of the squads own
officers. Hand in hand to this initiative is
greater intelligence gathering to make sure
that the target that have zeroed in on is
really the target that they assume to be and
greater efforts should be taken to assure
bystanders are not involved in the conflict.

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OPINION
FOR IMMEDIATE RELEASE
AHRC-STM-124-2010
June 25, 2010
A Statement by the Asian Human Rights Commission on the occasion of the UN
International Day in Support of Torture Victims - June 26, 2010

INDONESIA: Government violates international law by
delaying reforms to end torture
In 2010, the AHRC continued to receive
information on several cases of torture in
Indonesia. Twelve years after the
ratification of the Convention against
Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT)
by the Indonesian government, there is still
a routine and widespread use of torture and
ill-treatment of suspects, especially in police
custody. Torture is systematically used as a
way to extract confessions or information to
be used in criminal proceedings despite its
prohibition under international law
applicable to Indonesia.

monitor human rights violations in the
areas of civil, political, economic and social
rights. From January to May 2010, it
gathered 491 claims of human rights
violations by the police, a large number of
which involve the use of torture. The police
department is the institution most often
reported by the public to Komnas HAM for
human rights violations. Komnas Ham
recently particularly underlined the police's
abusive interrogation techniques against
suspected terrorists. "The main barrier in
upholding human rights is the government
itself," said Komnas HAM chief Ifdhal Kasim.

In December 2009, Mr. J.J. Rizal was
While police torture in Indonesia is widely
arrested on false charges in West Java and
practiced, adequate punishment for those
was severely beaten during his arrest while
who torture, are lacking. Properly
in custody (See full case at AHRC-UAC-178conducted investigations on torture cases
2009). On July 24, 2009, Ms. Muliyana, 24,
are rare. Perpetrators are left unpunished,
was
illegally
arrested
by
Jakarta
and the victims without effective remedies.
Metropolitan police officers and tortured
A root cause lies in the lack of necessary
while being interrogated about a bank
laws and legal avenues to obtain justice.
robbery that her husband was allegedly
involved with (See full case at: AHRC-UAC12 years after the ratification of the
175-2009). This rampant use of torture is to
Convention against Torture, torture has still
be linked with abuse of power by the police
not been criminalized. If torture occurs in
and constant miscarriage of While police torture in Indonesia is Indonesia, the perpetrators
justice. Credible allegations widely
will be charged only for
practiced,
adequate
of corruption in the justice punishment for those who torture, maltreatment (Article 351system and a criminal nexus are lacking. Properly conducted 358 of Indonesian Penal
with business and political investigations on torture cases are Code, KUHP) or 'use of
interests have also been rare. Perpetrators are left coercion to wrench a
unpunished, and the victims
reported.
confession' (Article 422 of
without effective remedies. A root
KUHP). This is significantly
cause lies in the lack of necessary
The National Human Rights
different from the definition
laws and legal avenues to obtain
Commission (Komnas HAM)
of torture introduced by
justice.
was set up in 1993 to
Article 1 of CAT. As a result,
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no sanctions or inadequate sanctions are
imposed on the perpetrators. Article 4 of the
Convention obliges state parties to ensure
that torture is made an offence under its
criminal law and punishable by appropriate
penalties. While the ratification displays a
'human rightsfriendly
While police torture in
country' image,
Indonesia is widely practiced,
adequate punishment for those
the
reality
who torture, are lacking.
shows just the
Properly
conducted
opposite. It is
investigations on torture cases
time to prove
are rare. Perpetrators are left
and act.
unpunished, and the victims
without effective remedies. A
root cause lies in the lack of
necessary laws and legal
avenues to obtain justice.

The
AHRC
welcomes the
steps taken by
the
government
and
the
House
of
Representatives (DPR) to include torture as
a criminal offence in the new Penal Code
bill. It therefore urges both institutions to
enact the new Penal Code as soon as
possible. But, the AHRC is concerned about
the unreasonable delays in passing this new
draft legislation. It is important for both the
government and the DPR to understand that
stalling the enactment means stalling justice
for the victims. As long as there is no law
which criminalises torture, perpetrators
remain unpunished.
The ongoing violations of human rights by
the police are also in contradiction with
several national laws on human rights that
have been enacted since the fall of Suharto’s
regime in 1998. Law number 39/1999
concerning human rights adopts a definition
of torture that complies with that stated in
the CAT. It asserts the right of every person
“not to be tortured”, while the Law No. 26
Year 2000 establishing the Ad Hoc Human
Rights Court defines torture as a “crime
against humanity”. However, the law is not
applicable to individual cases of torture but
to that of systematic and widespread
nature. A reform of the policing system has
been launched and was concretized with the
new Police Regulation number 8 passed in
2009. It is concerned with the
implementation of human rights principles
and standards in the discharge of duties of
the Indonesian National Police. It asserts the
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duty of all members of the police to respect
and observe human rights, which are
defined as “non-derogable by any person
under any circumstances”, including the
right to be free from torture. The regulation
forbids all police officers and personnel
from using torture against suspected or
detained persons, during arrest, during
custody and during interrogations.
These provisions are not adequately
implemented, as the numerous reported
cases of police torture show. It is necessary
to effectively criminalize the use of torture
in any circumstance. The ongoing police
reform alone is not a sufficient enough
reform to address the problem. Reforms
cannot be isolated to one institution of the
state. The prosecution and court system
suffers from political influence and
corruption that need to be addressed
together.
Cases of torture perpetrated by the military
can only be brought before a military court.
Military courts are notorious for lenient
punishments of soldiers committing crimes
against civilians. The law on military courts
has to be reviewed to allow for military
personnel to be held fully accountable
before a criminal civilian court.
Monitoring mechanisms over the police
present another obstacle in the prevention
of torture. As an institution mandated to
exercise considerable power in public life,
the police also have to be subject to
monitoring to prevent arbitrary and
unlawful actions. The current, internal
police monitoring mechanism is run by the
Internal Disciplinary Unit (IDU or Propam)
and the General Evaluation Inspectorate
(Irwasum). Both have been criticised by
the public for their lack of transparency in
conducting any investigation or monitoring
of staff within the police institution. An
effective external monitoring mechanism is
lacking. The National Police Commission
(Kompolnas) of Indonesia is only
mandated to advise the President in taking
decisions related to the policing system.
Decisions of the Ombudsman can be
breached without any legal consequences
while the National Human Rights
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Commission (Komnas HAM)'s can only issue
recommendations.
In order to create a comprehensive
mechanism in preventing and punishing
torture, the government needs to revise the
Criminal Procedure Code (KUHAP). There
are a number of loop holes in this law which
result in the prevalent use of torture.
According to KUHAP, persons may be put
under police custody for up to 61 days
initially and can be detained for 340 more
days if the case is brought for appeal before
the Supreme Court. The unreasonably long
detention period makes detainees more
vulnerable to torture. This is seen especially
in the lack of a mechanism to ensure regular
and independent checks of detainees and
detention facilities.

Magistrate Judges to exercise various
powers in such cases. Several other issues
are not addressed by the current revision
draft as yet. Two examples are: house and
city detention as more lenient and
alternative forms of detention which are
abolished in the draft. It provides additional
grounds for detention instead of limiting the
power to detain more closely. However, the
draft does not provide for any special
procedures taking into account the
particular vulnerabilities of the victim and
the involvement of the police themselves in
the case. The criminal procedure for cases of
torture should address these circumstances.

Victims in detention are often not given
access to a doctor as provided by law.
Family members, in several cases, reported
that they were not allowed
The legal-institutional problems are
to see their relatives. This
aggravated by the fact that there is no
kind of a situation makes
independent detention and correctional
detainees
more
facilities monitoring mechanisms to
vulnerable. It becomes
check the condition of detainees. An
difficult to obtain medical
absence
of
such
independent
evidence of the torture
mechanisms has been highlighted by
they had to endure or to
the UN Committee against Torture in
receive adequate medical
Geneva in its Concluding Observations
published in 2008. The Committee
treatment.

The provisions in Article
185 paragraph (2) of
KUHAP imply the legal
principle of unus testis
nullus testis (one witness
is not a witness). This has
made it difficult for
torture victims to prove to
the court that they have
experienced human rights recommended the following: “establish
and
comprehensive
violations.
Torture
is consistent
The
legal-institutional
standards for independent monitoring
mostly conducted inside
problems are aggravated
mechanisms of all places of detention,
detention centres such as
by the fact that there is no
ensuring that any body established, at
police stations. This makes the local or the national level, has a
independent
detention
the witness requirement strong and impartial mandate and and correctional facilities
practically impossible to adequate resources".
monitoring mechanisms to
fulfil in most cases. Article
check the condition of
185 paragraph (2) of KUHAP should thus
detainees. An absence of such independent
not be applied in torture cases. Instead, the
mechanisms has been highlighted by the UN
testimonies of torture victims should be
Committee against Torture in Geneva in its
heard as witness testimonies and the
Concluding Observations published in 2008.
burden of proof should be on the
The
Committee
recommended
the
perpetrator. A revised KUHAP should also
following: “establish consistent and
regulate that confessions made without the
comprehensive standards for independent
presence of a lawyer shall not be admissible
monitoring mechanisms of all places of
as evidence, as recommended by UN Special
detention, ensuring that any body
Rapporteur on Torture, Manfred Nowak.
established, at the local or the national level,
has a strong and impartial mandate and
Both the Government and the House of
adequate resources".
Representatives (DPR) are now in the
process of reviewing KUHAP. If the process
In this regard, Indonesia should respond to
is oriented towards a clear human rights
international calls to ratify the Optional
protection perspective, the AHRC welcomes
Protocol CAT (OPCAT). This Protocol
the revision. This revision draft authorizes
imposes the obligation on state parties to
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allow visits by international and national
independent bodies to places of detention.
The Indonesian government announced its
decision to ratify the optional protocol in
2008, following the 2004-2009 Human
Rights National Action Plan (RANHAM
2004-2009). Two years after the
government set a deadline and one year
after the end of the action plan period,
Indonesia has yet to give any further
indications that it will ratify OPCAT in the
near future. The AHRC deplores the failure
on the government’s side to implement its
own targets.
Indonesia's Witness and Victims Protection
Agency is insufficiently funded and illequipped to provide protection in cases of
torture by the police. Unless this body is
further developed, it can play no meaningful
role in supporting victims of torture.
In 2008, Manfred Nowak, the UN Special
Rapporteur on Torture and other Cruel,
Inhuman or Degrading Treatment or
Punishment, published a report following
his visit to Indonesia. His report denounces
the “routine practice” of torture in urban
area police stations and the “serious
allegations of ill-treatment” in rural areas.
The reports assessment pointed out that
torture is used especially to extract
confessions or money. Mr. Nowak
underlined the “quasi-total impunity”
related to the use of torture. He further
warned against the extensive use of
excessive violence in police and army
operations, especially in conflict zones, such
as Papua. Among several others, he notably
made recommendations to properly
criminalize torture, to recognize the
authority of the Committee against Torture
and to reduce the period of custody. He
finally called for a "zero-tolerance policy"
vis-à-vis torture and ill-treatment by state
officials and encouraged the authorities to
adopt a comprehensive anti-torture plan.
However, most of the recommendations
formulated by Mr. Nowak have not been
taken into account by the Indonesian
government.
This
demonstrates
an
appalling lack of political will of the state
institutions to put an end to the use of
torture.
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Indonesia must accept its responsibilities
under international law and before its
citizens. Joint efforts from the government,
the parliament, the civil society and the
international community must realize all
necessary reforms to end the practice of
police torture.
In 2008, Manfred Nowak, the UN
Special Rapporteur on Torture
and other Cruel, Inhuman or
Degrading
Treatment
or
Punishment, published a report
following his visit to Indonesia.
His report denounces the
“routine practice” of torture in
urban area police stations and
the “serious allegations of illtreatment” in rural areas. The
reports assessment pointed out
that torture is used especially to
extract confessions or money. Mr.
Nowak underlined the “quasitotal impunity” related to the use
of torture.

Recommendations:
• The government and the House of
Representatives must enact the new Penal
Code Draft criminalizing torture as defined
in the convention.
• The criminal procedure code must be
reviewed including a reduction of the length
of police custody, the end of the
applicability of Article 185 paragraph (2)
KUHAP in cases of torture, and the
admissibility of confessions made in the
absence of a lawyer
• The new police regulations need to be
distributed and enforced more strictly
among the police.
• Family members and Doctors need to be
given full access to detainees as provided by
the law.
• Indonesia should ratify the Optional
Protocol of the convention against torture.
• The Internal Disciplinary Unit of the police
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must be reformed to become a transparent
and accountable monitoring instrument; an
effective external monitoring mechanism
must be put in place.
• The budget of the Victims and Witness
Protection Agency must be increased to
ensure that effective aid can be provided in
cases of torture.
• The military court law must be reviewed
to hold perpetrators accountable under civil
courts.
---

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RIGHTS IN ASIA
Information contained in this column is provided
by the Asia Human Rights Commission (AHRC).

again shows the impunity enjoyed by the
military in cases of human rights violations.

NEPAL: A man remains missing after his
abduction by the Young Communist
League

SOUTH KOREA: The Seoul Municipal
Government fails to protect the right to
an adequate standard of living for
hundreds of elderly persons

Surendra Tamang, 30, was abducted on May
7, 2010 by members of the Young
Communist League because he allegedly
refused to give money to a Maoist activity,
during the Maoists’ indefinite strike. The
police, like Deputy Inspector of Police (DPS)
Dipak Thapa was uncooperative and
dismissive of the case. During an interview
with Surendra's wife he allegedly treated
her roughly, as if she were a potential
suspect, and insulted her. The Maoists have
refused to cooperate with the police and
Surendra’s whereabouts remain unknown.
The impunity of persons involved in
enforced disappearances is often secured by
the uncooperative attitude of the police,
who regularly refuse to register cases when
the Maoists or the Young Communist
League are involved. There is still no law in
Nepal
that
criminalizes
enforced
disappearance.
PHILIPPINES: Five months on, no charges
filed against soldiers who tortured
indigenous villagers
Five indigenous tribe members have been
illegally arrested by the military over false
charges of being involved with the New
People’s Army. Soldiers systematically
suspect and search people, particularly
those they had caught in forest area, as
either being rebels or persons doing
suspicious activities. This has already
affected villagers in the remote areas,
particularly the indigenous people, who still
continue to live in what may be considered
a backward lifestyle. The five men were
tortured and threatened to be killed during
interrogation, which lasted several days.
Five months on, although the investigation
has been completed and the findings
forwarded to the head office in Manila, no
charges have been filed in court. This once
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More than 300 tenants of small shops, most
of them low income and aged between 50 to
85 years old, have been fighting against
their eviction from the Gocheck traditional
business market for years. The market is
officially protected by the Special Act on
Improvement for Traditional Business
Markets or Commercial Areas, which places
it under the urban plan. However local
officials have wilfully avoided assisting or
intervening, and 50 tenants have been
evicted
forcibly,
despite
the
administration's duty to protect civilians'
rights in government redevelopment
projects. Police involved in the case have
also not conducted an investigation into the
reported assault and repeated threatening
of tenants. The authorities have labelled the
incident a private matter. The use of this
excuse is routine in the South Korean
administration and it results in the neglect
of the rights of vulnerable persons.
--

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REPORTAGE
Indonesian against Torture
Jakarta, June 28 – On June 26 the
international community commemorates
the UN International Day in Support of the
Victims of Torture (International Day
against Torture). On this day too, the
International Day against Illicit Drug
Trafficking is also widely commemorated.
The Indonesian government, apparently,
from time to time, opt to observe the latter
rather than the former. Despite its plethoric
commitment to protect human rights, the
International Day against Torture has never
been officially commemorated by the
Indonesian government. Yet, it doesn’t halt
Indonesian human rights groups’ ability to
take part in this global movement.
Indonesian Networks against Torture (JAPI)
is a coalition of more than 20 human rights
groups, including LBH Masyarakat. Our
objective is to raise public awareness on the
issue of torture as well as to urge the
government to fulfil its human rights
obligation. This year, as usual, JAPI held a
series of activities in commemoration of the
International Day against Torture. Its first
activity was to hold a radio-broadcast
program regarding torture held in
conjunction with the Voice of Human Rights
News Centre (VHR), on Wednesday, June 23,
2010. LBH Masyarakat’s Program Director,
Ricky Gunawan and a family member of a
torture victim took part in this program.

In addition to radio-broadcast, JAPI held a
peaceful rally on Friday, June 25. This
activity was to memorialize those who have
suffered the indescribable pain of torture
and survived from the excruciating
treatment. The rally started in Tangerang
youth correctional facility to Cikokol, largely
believed to be a place where authorities
tortured political prisoners. Afterwards,
participants of the rally came back to the
correctional facility in which they conducted
a discussion about torture and prisoner’s
rights. Representatives from JAPI will
provide a presentation for prisoners there.
On June 26, JAPI undertook a peaceful
demonstration at Bunderan HI, a famous
landmark located at the centre of Jakarta. At
this event, at least thousands of hand-books,
brochures, and pins, were distributed to
public. It is hoped that public awareness
would be raised from this and media
coverage would also multiply the effect of
awareness. JAPI also distributed its
statement which in principal urges the
government to pass the Draft of Criminal
Code and Criminal Procedure Code which
can be a safeguard against torture, as well
as to ratify the Optional Protocol of the
Convention against Torture (OPCAT).
--

Ricky Gunawan explained some key issues
about torture such as the history of the
International Day against Torture, the
definition of torture, its distinction with
maltreatment, the relation between torture
and other human rights issues and its
impact to individual both the perpetrator
and the victim, as well as to the society as a
whole. “Society needs to comprehend the
grave nature of torture, without which, we
will be tolerant towards torture and still
accept it as a common practice to be used
against suspect of crime. If this continues, it
is the rule of law itself which will be
diluted,” said Ricky.
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ABOUT US
Born from the idea that all members of
society have the potential to actively
participate in forging a just and democratic
nation, a group of human rights lawyers,
scholars and democrats established a nonprofit civil society organization named the
Community Legal Aid Institute (LBH
Masyarakat)

By providing a wide range of opportunities,
LBH Masyarakat is able to join forces with
those concerned about upholding justice
and human rights to collectively participate
and contribute to the overall improvement
of human rights in Indonesia.

LBH Masyarakat is an open-membership
organisation seeking to recruit those
wanting to play a key role in contributing to
the empowerment of society. The members
of LBH Masyarakat believe in the values of
democracy and ethical human rights
principals that strive against discrimination,
corruption and violence against women,
among others.
LBH Masyarakat aims for a future where
everyone in society has access to legal
assistance through participating in and
defending probono legal aid, upholding
justice and fulfilling human rights.
Additionally, LBH Masyarakat strives to
empower people to independently run a
legal aid movement as well as build social
awareness about the rights of an individual
within, from and for their society.
LBH Masyarakat runs a number of
programs, the main three of which are as
follows: (1) Community legal empowerment
through legal counselling, legal education,
legal clinics, human rights education,
awareness building in regard to basic rights,
and providing legal information and legal
aid for social programs; (2) Public case and
public policy advocacy; (3) Conducting
research concerning public predicaments,
international human rights campaigns and
advocacy.
These programs are conducted entirely in
cooperation with society itself. LBH
Masyarakat strongly believes that by
enhancing legal and human rights
awareness among social groups, an
independent advocacy approach can be
adopted by individuals within their local
areas.
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Peaceful demonstration conducted by Indonesian
Networks
against
Torture
(JAPI)
in
commemoration of the UN’s International Day in
Support of Victims of Torture 26 June 2010.

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Lembaga Bantuan Hukum Masyarakat
Tebet Timur Dalam III B, No. 10
Jakarta 12820
INDONESIA
P. +62 21 830 54 50
F. +62 21 829 80 67
E. contact@lbhmasyarakat.org
W. http://www.lbhmasyarakat.org

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Caveat - VOLUME 13/II, JUNE 2010 - LBH Masyarakat