By: Budi Hernawan. Sixty-six years ago the United Nations Charter was signed. Twenty-four years ago the UN Convention against Torture (CAT), which defined, condemned and criminalized torture as one of the cruelest forms of human rights abuses, came into effect.
Article 1 of CAT defines torture as “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
“It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
It was not until Soeharto’s New Order collapsed that Indonesia ratified the UN convention by adopting Law No. 5/1998. However, the Indonesian Criminal Code (KUHP) does not define “torture” (penyiksaan) and only recognizes the term “ill-treatment” (penganiyaan), thus does not criminalize it.
It is time to renew our commitment to ending torture. Many victims of torture in the history of our nation have not received any recognition, let alone reparation.
Their history stretches since the independence war in 1945 to the massive massacre of communists in 1965 to date, from Aceh, Papua and Timor Leste.
The majority of victims remain unknown and their voices have never been heard since the current legal framework is incapable to deal with torture, which is closely linked to the question of impunity.
Various recommendations from the UN Special Procedures to address these questions have remained unimplemented.
Essentially torture has branded the victims with the stigma as “the enemy of the state”. This label bears serious legal, political, social and economic consequences because victims are put beyond the boundaries of the state’s protection. Many victims live with the stigma eks-tapol (former political prisoners) sealed in their national ID cards and have been denied access to public services.
Other victims, particularly in Aceh and Papua, are labeled “separatists” or “rebels” and the government has deprived them of equality treatment before the law. Labor activists such as Marsinah or Wiji Thukul were branded musuh pembangunan (the enemy of development).
In daily life, many who survived excruciating pain and returned to their community continue to suffer from psychological and physical pain. Their disabilities have seriously and sometimes permanently, hampered their ability to work and earn a living.
This situation is often exacerbated by the social isolation they experience from their community, leading to both economic and social impoverishment.
This is the reality of most torture victims in our society. Without fair trial they are stigmatized, isolated, disabled and impoverished. They have become outcasts in our society. The general population turns away from them. To borrow the language of Julia Kristeva, a French philosopher, they become “the abject”, an object that provokes disgust.
The seriousness of torture as one of the most heinous forms of dehumanization laid the grounds for the UN member states to act to prevent torture. It is time for the Indonesian legislators and government to be true to the promise that they made in ratifying CAT.
They should act on harmonizing domestic law, particularly the Criminal Code, consistent with CAT and other UN human rights instruments. Moreover, these key institutions are responsible for implementing recommendations from the UN special rapporteur on torture following his visit to Indonesia few years ago.
The Indonesian government should recognize the victims of torture. There are many ways to express this recognition starting from hearing all pending dossiers of torture allegations in front of the human rights courts as stipulated by the 2000 Human Rights Court Law.
The government should seek reparation for torture victims by providing them with adequate assistance and services to rebuild their lives, such as free health treatment, counseling, housing and schooling.
Furthermore, the government at all levels should publicly condemn any allegations of torture and promptly act on them.
The administration should review the doctrine, the culture and the curriculum within the government institutions that prepare candidates for security services and public servants to be consistent with human rights standards. So many stories of violence and brutality occur inside these institutions with little prosecution and thus perpetuate the cycle of impunity.
Finally, the general population needs to continue their work to educate themselves to become an engaging population and a human rights aware society rather than bystanders. They need to raise their voices for those who have been silenced and outcast.
The writer, a Franciscan friar and former director of the Office for Justice and Peace of the Catholic Church in Jayapura, Papua, currently is pursuing a PhD at the Regulatory Institutions Network, the Australian National University, Canberra.