caveat - volume 06/i, november 2009 - lbh masyarakat

CAVEAT

INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS

VOLUME 06/I, NOVEMBER 2009

MAIN REPORT |

Indonesia’s Rule

of Law is in Peril The three-way struggle between the National

Police, the KPK and the Attorney General's Office

has been to the detriment of many; by far, it will

be the Indonesian public that suffers. The

responsibility of the three institutions to uphold

the country's rule of law has failed spectacularly.

To ensure that no one is above the law; that no

one is in a position to abuse the law; to enforce

law upon those who fall foul — the Indonesian

public is no doubt deeply disappointed in the

way that their taxes and votes are being used.

ADDITIONAL FEATURE |

Open Letter to the House of

People’s Representatives on

the Reviewing and Passing

of a New Criminal Code It is to be welcomed that no one has been

executed in Indonesia so far in 2009. However,

Amnesty International and LBH Masyarakat

remain concerned that Indonesia continues to

retain the death penalty as a punishment under

the Criminal Code and in other laws.

OPINION |

Indonesian Police Torture

Must be Stopped If an innocent person is tortured to confess a

crime he or she did not commit, it is human

nature to say anything the torturer wants to

hear in order to relieve the suffering. As a result,

the real criminal remains at large, ready to

commit further crimes, while the innocent

person may go to prison.

www.lbhmasyarakat.org

CAVEAT:

Let her or him be aware

C A V E A T | november 2009 | 1

L E M B A G A B A N T U A N H U K U M M A S Y A R A K A T

CONTENT

THE EDITOR’S CUT | 2

MAIN REPORT | 3 Indonesia’s Rule of Law is in Peril

ADDITIONAL FEATURE | 7 Open Letter to the House of People’s Representatives on the Reviewing and Passing of a New

Criminal Code

OPINION | 12 Indonesian Police Torture Must be Stopped

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.

CAVEAT invites feedback and contributions. If you are interested in contributing a guest

editorial piece or article, please contact us: [email protected]

Editorial Board:

Ricky Gunawan, Dhoho Ali Sastro, Andri G. Wibisana, Ajeng Larasati, Answer C. Styannes,

Christine Tambunan, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Maryam Jamilah, Yura

Pratama

Special Adviser:

Ella Davison

Finance and Circulation:

Zaki Wildan

Address:

Tebet Timur Dalam III D, No. 2, Jakarta 12820, INDONESIA

Phone:

+62 21 830 54 50

Fax:

+62 21 829 15 06

E-mail:

[email protected]

Website:

www.lbhmasyarakat.org

LBH Masyarakat welcomes any financial contribution for the development of CAVEAT

Name : Lembaga Bantuan Hukum Masyarakat

Bank : Bank Mandiri

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Swift Code : B E I I I D J A



THE EDITOR’S CUT

Over the past few months, Indonesia has

been stunned by the drama of the rivalry

between the Indonesian National Police and

the Corruption Eradication Commission

(KPK) as the anti-corruption saga reaches

new heights. There was public outcry when

police detained two of the KPK’s deputy

commissioners. This sentiment escalated

when the Constitutional Court heard

wiretapped recordings of conversations

between high-ranking law enforcement

officials and suspects in corruption cases.

The recordings indicate that there is a

systemic plot to eliminate the KPK and

further, that justice has not been served. In

this state of affairs, President Susilo

Bambang Yudhoyono’s awkward neutrality

is disheartening. His strong commitment to

fighting corruption must be translated into

practice as the epic between the “gecko”

(KPK) and the “crocodile” (Indonesian

police) – as coined by the latter – is

alarming and threatens to collapse the

country’s rule of law. Our main report in

this edition of CAVEAT will take you along

the journey of this saga and examine how

Indonesia should take the opportunity to

complete a thorough reform of its law

enforcement institutions.

In the additional feature, we present a joint

open letter by LBH Masyarakat and

Amnesty International addressed to

Commission III of the Indonesian House of

Representatives regarding a review of the

draft of the Indonesian Criminal Code. In the

open letter, we focus on several issues:

Torture, freedom of expression, the death

penalty, discrimination and violence against

women, and crimes under international law.

Finally, Ricky Gunawan raises a recent

torture case experienced by a transgender

sex worker in his opinion piece entitled,

“Indonesian Police Torture Must Be

Stopped.” He argues that the victim’s

audacity in coming forward to complain of

torture is heroic, given that he is a member

of a vulnerable group that is often

stigmatized and discriminated against.

Thus, “his courage should not go to waste.”

We hope the three features presented in

this edition’s CAVEAT will provide a better

understanding of Indonesia’s rule of law, in

the context of its human rights and

democracy.

Thank you for your ongoing support!

The Editor



MAIN REPORT

Indonesia’s Rule of Law is in Peril

THE STORY SO FAR

On March 14, Nasrudin Zulkarnaen, the

director of state-owned PT Putra Rajawali

Banjaran, was shot twice in the head upon

leaving Modernland Golf Club in Tangerang.

It is alleged that two suspects rode up on a

motorbike alongside the director's car,

firing the shots.

Nasrudin died in hospital the following day.

Shortly after, the police claimed to have

uncovered a plot of extortion, revenge and

corruption and named their suspects —

Daniel Daen, Heri Santoso, Hendrikus Kia

Walen, Fransiskus Tadon Kerans and

Eduardus Ndopo Mbete. The public were

further shocked when police detained three

more high-profile suspects — former South

Jakarta Police Chief Wiliardi Wizar and

businessmen Sigid Haryo Wibisono and

Jerry Hermawan Lodi.

However, the biggest scalp in the police

investigation was the questioning and

subsequent detention of Antasari Azhar,

chairman of the acclaimed Corruption

Eradication Commission (KPK).

Over the ensuing weeks, further details of

the sordid mess were revealed: it was

alleged that Antasari had ordered the

murder of Nasrudin in relation to a love

triangle with the third wife of the director,

golf caddy Rani Juliani, who was taken into a

witness protection program as the

investigation escalated. Possible motives

indicated that the commissioner might have

ordered the hitman-style murder after

Nasrudin and Rani embarked on a blackmail

scheme, threatening to inform Antasari's

family. Rani claimed to have had sex with

Antasari at the Grand Mahakam Hotel in

Jakarta, shortly before Nasrudin entered the

room. Even Nasrudin had his say from the

grave, with Rani's father testifying in court

that his son-in-law had confided he feared

Antasari would kill him.

Antasari pled his innocence, as his team of

attorneys, family and legions of supporters

stood by him. He claimed his arrest was an

attempt to dismantle the often controversial

and highly successful anti-corruption

commission and to ruin his reputation in the

process. He even turned on his colleagues,

alleging that two of his deputies had been

involved in accepting bribes from

businessman Anggoro Widjaja, the owner of

PT Masaro Radiokom, who was a suspect in

a graft case being handled by the KPK.

The backdrop to the whole case was the

debate surrounding a bill in the House of

Representatives, which, if passed, would

severely limit the KPK's ability to

investigate and prosecute corruption

suspects. Both local and international critics

accused the House of stalling on the bill, in

order to have it declared null and void when

the term ended. This bill would see the

Attorney General's regain its powers to

prosecute high-profile corruption cases, in a

move that concerned KPK backers, as the

rivalry between the two institutions — after

the KPK arrested a senior AGO official, Urip

Tri Gunawan, for accepting a bribe last year

— was well-documented and laden with

prejudice.

Despite public pressure, the nation's

primary anti-corruption fighter, President

Yudhoyono, has been unusually withdrawn,

refusing to take a clear stance. However, as

his popularity ratings plummeted, he

appointed an eight-person team to

investigate the KPK scandal, including the

arrest of Antasari, Chandra and Bibit. The

team stated that the charges were "forced"

and recommended that the charges against

the deputy commissioners be dropped due

to a lack of evidence.



The group also urged that institutional

reforms be undertaken at the National

Police and Attorney General's Office and

that any officials found to have fabricated

evidence be held accountable for their

actions.

The Team of 8 also recommended that a

separate inquiry be conducted into whether

Susno Duadji, the former National Police

chief of detectives, had illegally intervened

in the PT Bank Century bailout scandal.

RIVALS: GECKO VS. CROCODILE

Prior to the 2002 law on the Corruption

Eradication Commission, the police and

prosecution service had full power to

investigate and prosecute the litany of

corruption that has plagued the country's

bureaucracy since the 1950s.

In 2002, the law helped establish the

commission, and the reins were passed

over. In the ensuing years, the KPK's 100

percent conviction rate has riled

departments in Indonesia's

government, and its

investigations into high-

ranking officials has

heightened tensions

between those dedicated to

fighting corruption and

those intent on deception

and graft.

The rivalry reached new

heights when the

commission allegedly

illegally wiretapped the

National Police's chief of

detectives, Commander

General Susno Duadji, in

relation to the government's bailout of Bank

Century last year. Susno coined the "cicak"

(gecko) and "buaya" (crocodile) names to

describe the relationship between the

National Police and the commission.

Seemingly in response to the investigation

into Susno, the National Police detained

deputy commissioners Bibit Samad Rianto

and Chandra M Hamzah, on charges of

extortion and abuse of power in the case of

businessman Anggoro Widjojo (who is

being investigated in relation to a Forestry

Ministry project involving his company).

The move sparked off a huge public outcry

and waves of public support for the

commission, and an independent inquiry,

known as the Team of 8, was launched into

the justification behind the arrests.

THE RECORDINGS

The commission has, on occasion, been

accused of wiretapping its suspects without

justifiable cause. However, some of their

recordings have now been used to absolve

the deputy commissioners of the

allegations.

After days of speculation, lawyers for the

KPK submitted 67 recordings to the

Constitutional Court. For five hours, two

television stations broadcast the damning

evidence across the country, as the

conversations recorded on the tapes

indicated a plot by senior officials and

underworld criminal figures

to implicate the two deputy

commissioners. One

conversation chillingly

discussed the planned

murder of Chandra in jail.

The tapes have smeared the

reputations of several high-

ranking officials, including

Susno and I Ketut Sudiharsa,

deputy chairman of the

Witness and Victim

Protection Agency (LPSK),

Deputy Attorney General

Abdul Hakim Ritonga, Wisnu

Subroto, a retired deputy

attorney general for intelligence, Anggoro

Widjojo and his brother, Anggodo. The

impact of the tapes has reached the highest

echelons of government; even President

Susilo Bambang Yudhoyono's name is

mentioned, although he has denied any

wrongdoing.

On Nov. 3, mere hours after the tapes were

Figure 1: "I am a gecko, I dare to

fight against crocodile'.



played in court; Bibit and Chandra were

released from detention.

UNDERSTANDING RULE OF LAW

"We resolve: To strengthen respect for the

rule of law in international as in national

affairs and, in particular, to ensure

compliance by Member States with the

decisions of the International Court of Justice,

in compliance with the Charter of the United

Nations, in cases to which they are parties."

- Article 9 of the United Nations Millennium

Declaration, of which Indonesia is a

signatory.

The rule of law dictates that the law applies

to all and that no one is above the law. It

relies on a transparent judiciary to enforce

its laws, and prevents individuals or

organizations from benefiting from

impunity. While rule of law often exists in

theory, it is vital that a government

establish public respect for the rule of law,

especially following a period of conflict, to

protect human rights and to allow a nation

to progress economically and

democratically.

A judiciary that enjoys exemption from the

law, or uses its discretion to protect its

members from the law, fails in its

responsibilities to represent its citizens.

Indonesia's police force, Attorney General's

Office and intelligence services have long

been accused of enabling their own to evade

legal procedures. Suciwati, widow of

murdered activist Munir, has even made a

comparison between the alleged cover-up

after her husband's death and the current

plot to implicate members of the KPK.

"I see a very strong indication that the

judicial mafia played a role in Munir's case

by setting it up in such a way that the

prosecution's case was deliberately weak,"

Suciwati told local media recently.

What the Indonesian judiciary seems to

have failed to comprehend is that if they

lose the respect and trust of the public, they

are putting their positions in jeopardy as

pressure increases on President Yudhoyono

to take action against those who have been

implicated.

AT RISK: INDONESIA’S RULE OF LAW

The three-way struggle between the

National Police, the KPK and the Attorney

General's Office has been to the detriment of

many; by far, it will be the Indonesian public

that suffers. The responsibility of the three

institutions to uphold the country's rule of

law has failed spectacularly. To ensure that

no one is above the law; that no one is in a

position to abuse the law; to enforce law

upon those who fall foul — the Indonesian

public is no doubt deeply disappointed in

the way that their taxes and votes are being

used.

The fraught relationship between the three

— not to mention the exorbitant cost of the

investigations and subsequent court

proceedings — will have a strong impact on

the Indonesian psyche and its repeated

attempts to stamp out corruption.

Yudhoyono has led this call; he must also

lead the country from this quagmire of

corruption and failed leadership.

For Indonesia's rule of law to resurrect

itself, Yudhoyono's government must

enforce two key aspects.

Firstly, the implication of

the National Police and the

Attorney General's Office,

via the KPK's taped

conversations, indicate

that the country's

judiciary has failed to act

as an independent body.

The power and influence

wielded by senior officials and underworld

figures is testimony to this concept.

Secondly, all three bodies involved are

granted extraordinary powers to protect the

citizens of Indonesia. That they have

manipulated these powers to pervert the

law bodes poorly for the continuation of

Indonesia's judicial system, and

subsequently, the strength of democracy in

the country.

"I see a very strong

indication that the judicial

mafia played a role in

Munir's case by setting it

up in such a way that the

prosecution's case was

deliberately weak,"

Suciwati told local media

recently.



LOOKING FORWARD

Indonesia's rule of law is on a downward

spiral. If this investigation has thus far

proven anything, it is that the nepotism and

corruption that has infiltrated the country's

bureaucracy since the 1950s continues to

affect the lives of its citizens.

Indonesians have flocked to their social

networking site of choice to click their

support for Bibit and Chandra, for the KPK.

The numbers total in the millions; but

whether this will translate into people

power on the streets, such as

demonstrations the like of the late 1990s, is

yet to be seen. Certainly, Indonesia's

citizens have the ability for instigate change

through vocalizing their opinions and

rallying for their beliefs. However, it would

appear that there is a national crisis of

confidence in the judiciary and possibly in

Yudhoyono's ability to take a stance.

The Team of 8 has presented some strong

recommendations for the judiciary,

including a series of reforms and

independent inquiries into senior

individuals. It would appear that despite the

lashings of rhetoric on transparency and

accountability, many of those in positions of

power have failed to act on their

responsibilities. A lack of control in the

system can undermine public faith and

creates questions about the legitimacy of

the democracy.

President Yudhoyono must act on the

recommendations of the Team of 8, if the

public’s trust in the judicial system is to be

restored and the country’s rule of law is to

retain its credibility.

--

The fraught relationship

between the three — not to

mention the exorbitant cost

of the investigations and

subsequent court

proceedings — will have a

strong impact on the

Indonesian psyche and its

repeated attempts to stamp

out corruption. Yudhoyono

has led this call; he must also

lead the country from this

quagmire of corruption and

failed leadership.



ADDITIONAL FEATURE

Open Letter to the House of People’s Representatives on the

Reviewing and Passing of a New Criminal Code

Ref: TG ASA 21/2009/45

AI Index: ASA 21/022/2009

Dr Benny Kabur Harman

Chair, Parliamentary Commission III

House of People's Representatives

Jalan Gatot Subroto

Tanahabang 10270

Indonesia

5 November 2009

Dear Dr Benny Kabur Harman,

OPEN LETTER TO THE HOUSE OF PEOPLE’S

REPRESENTATIVES ON THE REVIEWING AND

PASSING OF A NEW CRIMINAL CODE

On behalf of Amnesty International and LBH

Masyarakat (Lembaga Bantuan Hukum

Masyarakat), we would like to welcome you

in your new position as chairperson of the

parliamentary commission specializing in

legal matters. It is our hope that we will be

able to develop a productive relationship

with your committee and work towards

strengthening the rule of law in Indonesia,

in accordance with international human

rights law and standards.

In your first

few months

in office, we

hope that you

will give the

upmost

priority to

the review

and passing

of a new

Criminal

Code

respectful of the National Constitution and

the Law on Human Rights (No39/1999).

Furthermore the new Code should ensure

the incorporation of implementing

legislation related to the international

human rights treaties Indonesia has ratified

in recent years, including the UN

Convention on Torture and Cruel, Inhuman

or Degrading Treatment or Punishment

(UNCAT), the International Covenant on

Civil and Political Rights (ICCPR) and the

Convention on the Elimination of All Forms

of Discrimination against Women (CEDAW).

As you are aware, the current Criminal Code

(KUHP, Kitab Undang-undang Hukum

Pidana) has been under revision for many

years; however so far the old version of the

code is still in place, although many of its

provisions fail to meet international human

rights law and standards or conform with

the provisions set out in the Indonesian

Constitution.

During the review of the Criminal Code,


recommend that your Commission pays

particular attention to the following areas:

ENSURE CRIMINALISATION OF TORTURE

AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT

In accordance with recommendations of the

UN Committee on Torture in 2001 and

2008, Indonesia’s Criminal Code should be

amended so as to include a comprehensive

definition of torture as provided for in

Article 1 of the UNCAT. The Code must also

ensure that at least some acts constituting

cruel, inhuman or degrading treatment or

punishment as defined under Article 16 of

the UNCAT are criminalised. For example,

offences must include, but not be limited to

the following acts (when not amounting to

torture): unnecessary or excessive use of

force, assaults, threats, and wilful neglect

and exploitation of detainees and prisoners,

and cruel, inhuman or degrading

punishments. Such provisions and

appropriate penalties for those who commit

acts of torture and other ill-treatment

In accordance with recommendations

of the UN Committee on Torture in

2001 and 2008, Indonesia’s Criminal

Code should be amended so as to

include a comprehensive definition of

torture as provided for in Article 1 of

the UNCAT. The Code must also ensure

that at least some acts constituting

cruel, inhuman or degrading treatment

or punishment as defined under Article

16 of the UNCAT are criminalised.



would be a significant step towards

protecting Indonesian citizens from torture

and other ill-treatment by members of the

security forces or with their instigation,

consent or acquiescence. It would ensure

that an adequate framework is in place to

deter future human rights violations and

ensure that victims can bring perpetrators

to justice.

REPEAL PROVISIONS CRIMINALIZING

FREEDOM OF EXPRESSION

Amnesty International has long expressed

concerns that the Criminal Code still

contains provisions which violate the right

to freedom of expression. In past years, the

organization has documented the arrest and

imprisonment of tens of peaceful political

activists in Maluku and Papua under

provisions from the Criminal Code, and in particular Article 106. 1 Amnesty

International and LBH Masyarakat

recommend that these provisions be

reviewed, amended and in some cases

repealed to

ensure that the

new Criminal

Code conforms

with

international

standards on

freedom of

expression, and

in particular

Article 19 of the

ICCPR which

Indonesia

ratified in 2006.

In the review, particular attention should be

paid to Chapter 1 on “Crimes against the

Security of the state”, Chapter 2 “Crimes

against the dignity of the President and Vice

President”, Chapter 3 “Crimes against

1 See Amnesty International, “Jailed for raising a

flag – Prisoners of Conscience in Maluku”, March

2009, AI Index: ASA 21/008/2009.

Weblink:

http://www.amnesty.org/en/library/asset/ASA

21/008/2009/en/83bb8344-a4d3-425d-95d2-

d36eb886e307/asa210082009en.pdf, accessed

on 29 October 2009.

friendly states and against head and

representatives of friendly states”, and

Chapter 5 “Crimes against the public order”.

Furthermore, Amnesty International and

LBH Masyarakat are concerned by legal

provisions which criminalize defamation

acts (Chapter XVI on “Defamation”), and in

particular Articles 310, 311 and 316 which

have been used in recent months in an

apparent move to silence human rights

defenders while they conduct their

legitimate work on behalf of the human

rights of others. Amnesty International is

aware of at least seven human rights

defenders who have been charged with

criminal defamation, which carries formally

a punishment of over five years’ imprisonment.2

REPEAL PROVISIONS FOR THE DEATH

PENALTY

It is to be welcomed that no one has been

executed in Indonesia so far in 2009.

However, Amnesty International and LBH

Masyarakat remain concerned that

Indonesia continues to retain the death

penalty as a punishment under the Criminal

Code and in other laws. As you may be

aware, there is a global trend towards the

abolition of the death penalty. One of the

most recent countries to abolish capital

punishment is the Philippines. In 2006, the

Philippines abolished the death penalty for

all crimes. Currently 139 countries have

abolished the death penalty in law or

practice. Amnesty International and LBH

2 See Articles 311.1: “Any person who commits

the crime of slander or libel in case proof of the

truth of the charged fact is permitted, shall, if he

does not produce said proof and the charges has

been made against his better judgment, being

guilty of calumny, be punished by a maximum

imprisonment of four years” and Article 316:

“The punishments laid down in the foregoing

articles of this chapter may be enhanced with

one third, if the defamation is committed against

an official, during or on the subject of the legal

exercise of his office.” That means criminal

defamation carries formally the possibly of up to

five years and a few months’ imprisonment (four

years enhanced by one third).

International and LBH

Masyarakat are concerned by

legal provisions which

criminalize defamation acts

(Chapter XVI on

“Defamation”), and in

particular Articles 310, 311

and 316 which have been used

in recent months in an

apparent move to silence

human rights defenders while

they conduct their legitimate

work on behalf of the human

rights of others.



Masyarakat hope that Indonesia will soon

follow this trend and join the Philippines in

showing human rights based leadership on

this issue by abolishing the death penalty.

The role of the death penalty as a deterrent

for future crimes has not been proven.

Recent UN sponsored scientific studies in

1998 and 2002 concluded: "… it is not

prudent to accept the hypothesis that

capital punishment deters murder to a

marginally greater extent than does the

threat and application of the supposedly

lesser punishment of life imprisonment.”3

Furthermore, its use carries the irrevocable

weight of miscarriages of justice.

So far death penalty as a punishment is

contained in many articles of the Criminal

Code for crimes such as premeditated

murder (Article 340) and attacks on the

President or Vice-President (Article 104).4

All these provisions should be removed in

respect of the right to life as enshrined in

Indonesia’s national constitution and other

international human rights law and

standards.

3 Roger Hood, The Death Penalty: A World-wide

Perspective, Oxford, Clarendon Press, third

edition, 2002, p. 230. 4

Other articles which provide provisions

allowing for the use of capital punishment

include Articles 111, 124, 140, 365 and 444.

COMBATING VIOLENCE AGAINST WOMEN

AND GENDER BASED DISCRIMINATION IN

ALL ITS FORMS

Amnesty International has welcomed the

passage of the Law regarding the

Elimination of Violence in the Household

(Law No23/2004) which criminalizes a

number of acts of gender-based violence in

the context of the family.5 However we

remain concerned that some acts of violence

against women are yet to be criminalized

under Indonesian law. For example sexual

harassment outside the domestic sphere

and rape in the context of marriage are yet

to be criminalized. Amnesty International

and LBH Masyarakat recommend that

specific provisions in the new Criminal Code

incorporate provisions prohibiting sexual

harassment in all its forms, and prohibit

rape inside and outside the context of

marriage.


note that definitions of rape and sexual

assaults in domestic criminal law should

provide effective protection to individuals’

right to

physical and

mental

integrity.

Therefore

definitions of

rape should

reflect the

fact that

these crimes

are

committed,

not just

through force or threat of force, but also

through coercion, or taking advantage of

someone who is unable to make a genuine

5 See in particular “Exploitation and abuse: the

plight of women domestic workers in

Indonesia”, AI Index: AI Index: ASA

21/001/2007.

Weblink:

http://www.amnesty.org/en/library/asset/ASA

21/001/2007/en/404b2f23-d3c5-11dd-8743-

d305bea2b2c7/asa210012007en.pdf, accessed

on 29 October 2009.

The role of the death penalty as a

deterrent for future crimes has not

been proven. Recent UN sponsored

scientific studies in 1998 and 2002

concluded: "… it is not prudent to

accept the hypothesis that capital

punishment deters murder to a

marginally greater extent than does

the threat and application of the

supposedly lesser punishment of life

imprisonment.”1 Furthermore, its use

carries the irrevocable weight of

miscarriages of justice.

Figure 2 Courtesy Amnesty International



choice (for example, because they are

unconscious, asleep, or unable to make a

decision because of incapacity).

Further Amnesty International and LBH

Masyarakat are concerned that currently

the Criminal Code contains provisions

criminalizing adultery in contravention with

international human rights standards

(Article 284). Such provisions violate

international law and standards relating to

physical and mental integrity, and their

implementation tends to violate equality

before the law, as women tend to be

prosecuted disproportionately.

REPEAL PROVISIONS CRIMINALIZING

ABORTION AND ACCESS TO EDUCATION

ABOUT SEXUALITY AND REPRODUCTION

With one of the highest rates of maternal

mortality in the East Asia and Pacific region,

Indonesia is still a long way away from

meeting its Millennium Development Goals

targets of reducing by three-quarters

maternal mortality ratios between 1990 and

2015. Unsafe abortions and unwanted

pregnancies

are among the

underlying

causes of the

current high

rates of

maternal

mortality in Indonesia.6

Decriminalizin

g abortion (see

Articles 346,

347, 348, and

349) would be a positive step towards

combating maternal mortality by ensuring

that women who have had an abortion and

6 It is estimated that 11% of maternal deaths in

Indonesia are due to unsafe abortions and that

7% of births are unwanted. In Indonesia’s

Progress Report on the Millenium Development

Goals, 2004.

Weblink:

http://www.undp.or.id/pubs/imdg2004/Englis

h/MDG-IDN_English_Goal5.pdf, accessed on 29

October 2009.

face medical complications are able to

access life-saving treatment. It would lift

fears amongst women and medical

practitioners that they may be facing

criminal prosecutions and imprisonment if

they seek care or provide medical

assistance. Amnesty International

campaigns worldwide for the

decriminalization of laws on abortion to

ensure that victims of rape and incest, and

women, who may be experiencing life-

threatening complications due to

pregnancy, can have access to abortion-

related services. Amnesty International

campaigns for any woman who suffers

complications from an abortion to have

access to the medical services she needs,

whether she obtained the abortion legally

or illegally.

Access to information on sexual and

reproductive rights without discrimination

is also vital to combat unwanted

pregnancies. Articles 534 and 535 of the

Criminal Code currently criminalize

supplying information to young people

relating to the prevention of pregnancy.

Such a provision is in violation of the right

to seek, receive and impart information

relating to sexuality and reproduction and

should be eliminated from the criminal law.

CRIMINALISE CRIMES UNDER

INTERNATIONAL LAW

The new Criminal Code should provide for

trials in Indonesia’s courts of crimes under

international law. These include genocide,

crimes against humanity and the war crimes

listed in the Rome Statute of the

International Criminal Court, as well as war

crimes not listed in the Statute (such as

certain grave breaches and other serious

violations of Protocol Additional to the

Geneva Conventions of 12 August 1949, and

relating to the Protection of Victims of

International Armed Conflict - Protocol I -

and certain violations of international

humanitarian law in non-international

armed conflict) and torture, extrajudicial

executions and enforced disappearances as

discrete acts. The definitions should be as

broad as the definitions in the Rome Statute,

but whenever international treaties (such as

Amnesty International campaigns

worldwide for the decriminalization

of laws on abortion to ensure that

victims of rape and incest, and

women, who may be experiencing

life- threatening complications due to

pregnancy, can have access to

abortion-related services. Amnesty

International campaigns for any

woman who suffers complications

from an abortion to have access to

the medical services she needs,

whether she obtained the abortion

legally or illegally.



Protocol I) or customary law contains

stronger definitions than those in the

Statute, these definitions should be

incorporated into national law.

Please do let us know if you have any

questions. We would be pleased to discuss

with you the reform of the Criminal Code

and other areas of mutual concern.

Yours sincerely,

Isabelle Arradon

Researcher on Indonesia and Timor-Leste

Ricky Gunawan

LBH Masyarakat Programme Director

--

Access to information on sexual

and reproductive rights without

discrimination is also vital to

combat unwanted pregnancies.

Articles 534 and 535 of the

Criminal Code currently

criminalize supplying information

to young people relating to the

prevention of pregnancy. Such a

provision is in violation of the right

to seek, receive and impart

information relating to sexuality

and reproduction and should be

eliminated from the criminal law.



OPINION

Indonesian Police Torture Must be

Stopped By: Ricky Gunawan *

Jakarta, Indonesia — The chief of the

Indonesian National Police issued a

regulation earlier this year regarding

human rights protections for those in police

custody. One article clearly prohibits

arbitrary arrest and detention as well as

torture. Although this is positive action, the

regulation is useless, as torture by the police

continues.

On Oct. 27 and 28 a transgender sex worker

who goes by the name Riko was severely

tortured by police officers at the South

Jakarta Resort Police. It began when a

person filed a police report regarding his

lost cell phones five days earlier. According

to the complainant, the person who stole his

phones was a transgender person who liked

to hang out in the area.

On the night of Oct. 27, Riko was chatting

with transgender friends when seven police

officers, four in uniform, came with the

complainant, who accused Riko of the theft.

Riko denied the allegation and told the

police officers that he was at a friend’s

house when the crime was allegedly

committed. But the policemen forced Riko

into their car and drove to the South Jakarta

Resort Police Station, where he was forced

to confess. Still he insisted he was innocent.

Then he was driven to an empty street not

far from the police station where around 20

police officers, most of them drunk, were

waiting. It was close to midnight. Riko was

asked again whether he had stolen the cell

phones, and he replied he had not.

The police then threw a bottle of beer at his

head and began an assault that lasted

almost four hours. He was beaten and

kicked; his head was banged against a pillar

twice; his head and eyes were hit repeatedly

with police boots; his back was kicked; he

was stripped and verbally abused; his arms

and back were burned with cigarettes every

time he denied the theft.

Around 3:00 a.m. Riko was taken to Blok M

Police Post, where he was again tortured. He

was then locked in a small cell. In the

morning he asked for some water, but the

police refused to give him any. After more

than 12 hours in solitary confinement, at

around 4:30 p.m., Riko was released

without explanation.

Two days later Riko wanted to file a

complaint with the Jakarta Regional Police,

but he was rejected for the petty reason that

he did not have an ID card. Later his lawyer

filed a complaint on his behalf.

Despite ratification of the U.N. Convention

Against Torture 11 years ago and repeated

calls from the international community to

pass its own law against torture, Indonesia

is still reluctant to criminalize this practice.

Therefore victims have no legal avenue to

pursue justice.

Riko has not been provided any redress for

the injustice he suffered. It is hard to

imagine that he ever will. Until today, no

torture victims have obtained adequate

reparation. Moreover, no police

perpetrators have been brought to justice,

given the absence of torture laws within the

country.

Police institutions have, on many occasions,

acknowledged that a suspect’s confession or

information is not the top priority as

evidence in criminal proceedings. Then why

is it so hard for the police to stop using

torture? Apparently they fail to comprehend



that torture undermines the criminal justice

system.

If an innocent person is tortured to confess

a crime he or she did not commit, it is

human nature to say anything the torturer

wants to hear in order to relieve the

suffering. As a result, the real criminal

remains at large, ready to commit further

crimes, while the innocent person may go to

prison.

Torture also erodes the possibility of a fair

trial. An important aspect of a fair trial is the

presumption of innocence. Only the court

has the authority to decide who is guilty and

what punishment is deserved. But in Riko’s

case, he was inhumanely punished by police

officers without any chance of a trial.

Instead of collecting testimony from

witnesses and other supporting evidence,

the police opted to torture Riko, as they

believed it was the easiest way to make him

confess.

Riko’s case is only one of many examples of

torture frequently experienced by

transgender people and sex workers. His

audacity in coming forward to complain of

torture is highly appreciated, as a member

of a vulnerable group that is stigmatized

and discriminated against. His courage

should not go to waste.

Indonesia should make an example of his

case, conduct a thorough investigation into

his torture and hold the perpetrators

responsible. This is important not only to

bring Riko justice, but to send a clear signal

that this kind of illegal and abusive behavior

by police officers will not be tolerated.

--

(Ricky Gunawan holds a law degree from the

University of Indonesia. He is program director of

the Community Legal Aid Institute, or LBH

Masyarakat, based in Jakarta. The institute

provides pro bono legal aid and human rights

education for disadvantaged and marginalized

people.)

--

This article was originally published on 4

November 2009 at:

http://www.upiasia.com/Human_Rights/2009/1

1/04/indonesian_police_torture_must_be_stopped

/8862/



About LBH Masyarakat

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 non-

profit civil society organization named the

Community Legal Aid Institute (LBH

Masyarakat)

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.

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.



Lembaga Bantuan Hukum Masyarakat

Tebet Timur Dalam III D, No. 2

Jakarta 12820

INDONESIA

P. +62 21 830 54 50

F. +62 21 829 15 06

E. [email protected]

W. http://www.lbhmasyarakat.org

caveat - volume 06/i, november 2009 - lbh masyarakat

Education