INDONESIA’S
COMPLIANCE
with the
Convention Against Torture and Other Cruel,
Inhuman
and Degrading Treatment or Punishment
Issues for
Discussion with
the
Committee Against Torture
Submitted
by
National
Commission on Violence Against Women
(KOMNAS
PEREMPUAN)
Jakarta,
April 2008
Background
1.
This document is submitted to the Committee
Against Torture (CAT) by Indonesia’s National Commission on Violence Against
Women (hereafter, Komnas Perempuan), for the purpose of highlighting critical issues
and challenges faced particularly by Indonesian women in fulfillment of their
right to be free from torture and other cruel, inhuman and degrading treatment
or punishment, as guaranteed by Indonesia’s Constitution and stipulated in the
International Convention Against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (hereafter, the Convention). This initiative is taken based
on Komnas Perempuan’s mandate, as designated by Presidential Decree No.
65/2005, to create a conducive environment for the elimination of all forms of
violence against women and the promotion of women’s human rights.
2.
Komnas Perempuan would like to extend its
appreciation to the UN High Commission on Human Rights and CAT for recognizing
the work of this national commission and for providing space for us to make a
direct contribution to its functioning based on our national mandate. There are
two international conventions mentioned as reference in the Presidential Decree which established Komnas
Perempuan: CEDAW and the Convention Against Torture. Both the UN Special
Rapporteur on torture[1]
as well as the UN Special Representative for the Secretary General on human
rights defenders[2]
gave special mention of our commission in their respective reports on
Indonesia.
3.
Through this brief, Komnas Perempuan highlights eight
critical issues which are key to Indonesian women’s human rights as they relate
to CAT’s mandate and its communications to date with the Government of
Indonesia. The eight critical issues are the following: (i) impunity on rape
and sexual harassment; (ii) inadequate institutional framework for
implementation of new legal breakthroughs; (iii) new forms of corporal
punishment under decentralization; (iv) increasing risk towards regressive
policies in the name of religion and morality; (v) lack of legal safeguards in
social rehabilitation and migrant worker transit centers; (vi) inadequate reparation
for victims of past violations; (vii) lack of a national preventive mechanisms against torture; (viii) no
effective protection mechanism for human rights defenders.
4.
Accompanying this brief is a report previously
submitted by Komnas Perempuan to the UN Special Rapporteur on Torture during
his official visit to Indonesia in 2007, which is also relevant to CAT and is submitted
as an integral part of this brief.
Critical Issues
Impunity on gender-based forms of torture: rape
and sexual harassment
5.
Indonesia’s Criminal Code applies a definition
of rape which is outdated and does not meet current international standards on
prosecution of rape cases. In it, rape is defined narrowly and exclusively in
terms of forced penetration of the sexual organs. According to Indonesia’s Code
of Criminal Procedure (KUHAP), the prosecution of rape requires evidence of
semen through medical records (visum et repertum) and corroboration from
two sources, including a witness. Such legal provisions make it practically impossible
for women victims of rape and other forms of sexual violence to obtain justice
through the courts. In effect, Indonesia does not have an effective legal
framework which criminalizes this gender-specific form of torture.
6.
Indonesia’s Law No. 26/2000 on the Human Rights
Court adopts the Rome Statute’s gender-sensitive definition of crimes against
humanity which recognizes gender-based violence and sexual slavery. However,
because Indonesia has not ratified and integrated the Rome Statutes in its
entirety, including its procedures and rules of evidence, then women who have
experienced sexual violence in the context of widespread or systematic attack
on civilian populations still do not have access justice. At the moment, this
Law on the Human Rights Court can only be applied using the existing Criminal
Code and Code of Criminal Procedure which are not conducive to justice for
women.
7.
Indonesia has no legal provision which
criminalizes sexual harrassment.
8.
Severe limitations and silence in the legal
provisions on rape and sexual harrassment within the Indonesian legal framework
amount to impunity on major forms of torture which are gender based. (CAT list
of issues no. 15, article 14)
Inadequate institutional framework for
implemenation of new legal breakthroughs
9.
As part of Indonesia’s efforts for comprehensive
reform, new laws have been enacted for the purpose of protecting human rights,
including women’s human rights. Among others, in 2006, Law No. 13/2006 on
Witness and Victim Protection was passed. The objective of this law is in
accordance to Article 13 of the Convention, namely to provide a sense of
security for witnesses and victims in providing information during a trial
proceeding. It includes victims and witnesses in cases of gross violations of
human rights.
10. For
enforcement of such protection, the Government is required to set up a Witness
and Victim Protection Body one year after the law was passed. This body also
determines compensation and restitution for victims. One year after the law was
passed, in 2007, the President finally submitted candidates for membership in the
body from which the Parliament has to make their final selection. To date, the
Parliament has not convened a special session to finalize the members of the Witness
and Victim Protection Body, consequently making the Law unimplementable almost
two years after its was passed.
11. In 2004,
Indonesia passed Law No. 23/2004 on the Elimination of Domestic Violence (CAT
list of issues no. 18, article 14). Since the law was passed, reporting on
domestic violence has increased significantly, reaching more than 20,000 in
2007 alone. Through its annual report on violence against women, Komnas
Perempuan shows that women’s organizations, special units within the Indonesian
police force which deal with women and children victims of violence, and local
courts have been the most active in using this new law. In 2007, the Indonesian
National Police came out with a policy to nationalize its special units for
women and children (CAT list of issues no. 23, article 10). However, a
significant proportion (30-40%) of domestic violence cases are addressed by the
religious courts, through divorce cases within Muslim families, while these
religious courts are in fact the least knowledgeable of this law.[3]
12. Obstacles
to effective enforcement of the Law on Elimination of Domestic Violence
originates from limited regulations and protocols for implementation, low
levels of understanding of law enforcement agents on this new law, insufficient
allocation of Government funds to provide the necesarry support system and
capacity building requirements.
New forms of corporal punishment under decentralization
13. As part of
the peace agreement in Aceh, Law No. 11/2006 on Aceh Governance stipulates that
the Sharia Law is enforced in this province as recognition of its special
autonomy status within the Indonesian Unitary state system. Local regulations produced
in Aceh have their own Arabic term, qanun (cannon). Through the qanun,
Muslim dress is obligatory for Muslim women and close proximity between an
unmarried woman and a man who is not her guardian (khalwat) is a
violation punishable by public flogging. This form of punishment has never existed within
the Indonesian legal system and undermines the provisions of Law No. 23/2004 on
Local Government which stipulates that law, religion and security as sectors
which remain under the authority of the national government and are not
decentralized to local governments.
14. The
procedures of implemenation violates basic legal guarantees, including the
principle of presumption of innocence. The prosecution process developed in
enforcing Sharia Law provides no protection to the rights of those accused of
its violation. The accused are provided with no opportunity to defend
themselves, have no right to legal counsel, and, therefore, increases the risk
of punishing innocent women. The provincial government in Aceh has established
a new body to enforce the Sharia Law, the wilayatul hisbah, another
unprecedented body within the Indonesian system of governance.
15. Punished
women face persistent stigmatization by the community. Komnas Perempuan has
found that this form of punishment, which is carried out in public view
(including children), results in a persistent stigmatization of those accused
of violating the Sharia Law. The generated social sanctioning lasts far beyond
the execution of flogging. For women, the impact of the punishment is worse
than for men. Women sentenced with public flogging are labeled as immoral by
their community, families and husbands.
16. As part of
their newly-gained autonomy, under Indonesia’s decentralization scheme, other
parts of Indonesia has started introducing public flogging as a form of
punishment, such as Bulukumba District (South Sulawesi), although it has not
been implemented.
17. In his
report on Indonesia (A/HRC/7/3/Add.7, point no. 17),
the UN Special Rapportuer on torture expressed his concern about this form of punishment, based on the principle that corporal
punishment constitutes degrading and inhuman treatment in violation of article
7 ICCPR and article 16 CAT and should therefore be abolished. The Special
Rapporteur recommends that the Government should ensure that corporal
punishment, independently of the physical suffering it causes, is explicitly
criminalized in all parts of the country.
Increasing risk towards regressive policies in
the name of religion and morality
18. Komnas Perempuan
is alarmed at the preparations being made by the Attorney General, Minister of
Religion and Minister of Internal Affairs to come out with a Joint Decree which
would criminalize the religious activities of Ahmadiyah, a small Muslim
minority group. The Ahmadiyah community has been targets of violent attacks in
the past few years (CAT list of issues no. 38, article 16), which is part of a
larger trend of rising militancy among Islamists in Indonesia. These attacks
have been legitimized by the proponents as implementing a fatwa of the
Indonesian Council of Ulama (MUI). If the Joint Decree against Ahmadiyah is
passed, it will create a new precedent where the Indonesian Government is
effectively outlawing a religious group, in violation of Indonesia’s own Constitution
which guarantees freedom of religion.
19. On April
2006, the Supreme Court rejected a request by civil society organizations for a
judicial review of Tangerang’s discriminatory local regulation prohibiting
prostitution which, in effect, criminalizes all women who ‘creates the
impression of being a prostitute’. The Supreme Court’s rejection of this review
was made on basis of a procedural consideration, namely that the formulators
had made sufficient public consultations when preparing the draft, and
therefore no review of the substantive content of the this local regulation –
whose objective is to uphold public morality – was considered necessary. Until now, the
Supreme Court has not released its documents on this particular decision,
despite their legal responsibility to do so and in spite of constant requests
from rights organizations, including Komnas Perempuan.
20. As Party
to the Convention, the Indonesian Government should take all measures necessary
to prevent and address cruel, inhuman and degrading treatment, particularly in
light of current trends which target minority groups and women.
Lack of legal safeguards for social
rehabilitation and migrant worker transit centers
21. Through
his report on Indonesia, the UN Special Rapporteur on Torture expressed concern
over social rehabilitation centers which are held outside the criminal legal
framework, resulting in a lack of legal safeguards applied with regard to these
institutions. He also notes that there is no independent assessment of who should
be detained and no right to habeas corpus for the detainees.[4]
Many of those who inhabit these social rehabilitation centers are women and
children, making them particularly vulnerable to abuse.
22. Komnas
Perempuan notes a paralel concern with regard to transit centers for Indonesian
migrant workers – the majority of whom are women – who are on their way out of the country as
well as those who are on their way back to their hometowns (CAT list of issues
no. 36, article 16). In 1999, Government of Indonesia opened Terminal 3 at the
Soekarno Hatta International Airport as a special place of migrant workers who
just returned from their workplace abroad. Terminal 3 is intended as a
protection effort for migrant workers, but in practice, it is a place of
deception, exploitation, robbery, and other forms of abuse against Indonesian
migrant workers. On average, the number of migrant workers going through this
terminal is more than 300,000 persons per annum. Migrant worker transit centers
is a critical issue of concern at a large scale, as approximately half a
million Indonesians leave the country for work every year.
Inadequate rehabilitation and reparations for
victims of past violations
23. In
post-conflict Aceh, a mechanism to provide compensation of the victims of the
armed conflict has been established as part of the Helsinki-based peace
agreement. Komnas Perempuan’s Special Rapporteur on Aceh[5]
has reported cases in which women victims of sexual torture during the armed
conflict period have been denied access to the post-conflict rehabilitation
program set up by the Government. The type of torture recognized is limited to
physical torture, and excludes other forms of torture, especially its sexualized forms. As a result,
many women victims of torture cannot benefit from this Government and
internationally-supported rehabilitation program.
24. Overall,
Aceh’s rehabilitation program is focused mainly on physical rehabilitation or
monetary compensation and is disconnected from any process of truth-seeking and
accountability. Particularly for women victims of sexual violence who are
subject to community tendencies of blaming the victim, they require a process
of collective recognition that they are victims of systematic violence rather
than individual actors of immoral conduct.
25. Women
victims of other past human rights violations beyond Aceh, such as victims of
massive arbitrary arrests and sexual violence in 1965 and victims of sexual
violence in the mass riots of May 1998, have no access to any reparation or
rehabilitation scheme at all.
26. Law No.
26/2000 on Human Rights Court, which is focused on crimes against humanity and
genocide, has an implementing government regulation (PP No. 3/2002) on
compensation, restitution and rehabilitation. This regulation has been unimplementable
as it is narrowly linked to Law No. 26/2000 and because there has been no
convictions on crimes against humanity to date in Indonesia.
27. Indonesia’s
post-authoritarian transition to democracy requires putting focus on the
victims of past human rights violations. Not all victims take their cases to
court, and even when they do, the unfinished process of legal reform means that
justice for the victims is still far away from realization. A comprehensive and
gender-sensitive rehabilitation and reparations scheme (CAT list of issues no.
32, article 14) has become an urgency especially since many of these victims
are elderly by now.
Lack of a national preventive mechanism against
torture
28. Comments
from CAT as well as the report on Indonesia from the UN Special Rapporteur on
torture both highlight the lack of a national preventive mechanism on torture
in Indonesia (CAT list of issues no. 16, article 4). This is a serious vacuum.
29. Komnas
Perempuan has a complaints handling mechanism for violations of women’s human
rights but the current system is not accessible by women in detention. Komnas
Perempuan conducts monitoring of detention centers only on an ad hoc
basis and, at its current state, does not have the means nor capacity to carry
out a comprehensive monitoring system for detention centers for women.
No effective protection mechanism for human
rights defenders
30. The
Indonesian Constitution recognizes the right of its citizens to collectively
defend their rights. There is no policy framework to operationalize effective protection
for human rights defenders (CAT list of issues no. 37, article 16), however.
31. In the
meantime, human rights defenders continue to work under intimidative situations
Komnas Perempuan has documented that Indonesian women human rights defenders
experience particularly gender-based forms of attacks and intimidations,
including being accused of being bad mothers, sexual harassment and rape.
32. The UN Special
Representative for the Secretary General on human rights defenders gave special
notice to the activities and safety of women human rights defenders which have
been adversely affected by laws, policies and a social environment that place
restraints on their fundamental freedoms. For instance, Ms. Ellen from Bhinneka
Tunggal Ika Group received death threats and was publicly discredited in the
media (‘dirty woman’) after demonstrating in Jakarta against the
Anti-Pornography Law which is said to have a negative gender impact. Similarly,
Ms. Ismawati Gunawan from the Coalition of Indonesian Women was insulted and
assaulted during a demonstration in Tanggerang against a local regulation on
“immoral” acts also believed to have a negative gender impact, by supporters of
the regulation and in front of police officers present at the rally. The Special
Representative was disturbed by the case of Ms. Wa Ode Habibah, KPI Muna,
Sulawesi Tenggara who was advocating for the right of women to be free from
domestic violence and whose house in Muna was burnt down because of her
activities. A complaint was reportedly filed with the police, but the
investigation did not lead to any arrest; instead, the defender was accused by
the police of having burnt down her own house.
Recommendations
33. To ensure that
Indonesian women live free from torture and other cruel, inhuman and degrading
treatment or punishment, it is imperative that the Indonesian Government take
immediate action to:
a.
revise the legal definition of rape and its
rules of evidence within Indonesia’s Criminal Code and Code of Criminal
Procedures
b.
criminalize sexual harrassment
c.
establish the Witness and Victim Protection Body
with a gender-balanced selection of its Members
d.
abolish public flogging in Aceh, on the grounds
that law is not decentralized, and further eliminate all other forms of
corporal punishment (such as the death penalty) throughout Indonesia
e.
establish effective legal safeguards in social
rehabilitation centers and migrant worker transit centers, including in
Terminal 3 of the Soekarno-Hatta International Airport in Jakarta, as well as
their transparant and accountable management
f.
formulate a gender-sensitive and accessible reparation
scheme for victims of past violations
g.
ratify the Optional Protocol for the Convention
Against Torture and develop an effective national preventive mechanism for
torture and other cruel, inhuman and degrading treatment or punishment which is
responsive to the gender-based vulnerabilities of women
h.
open dialogue with Indonesia’s human rights
defenders, men and women, on how to establish an effective nationwide protection
system.
Komnas Perempuan continues to initiate and
participate in constructive dialogues with the relevant State agencies on these
matters.
[1]
Report of the Special Rapporteur on Torture, Mission to Indonesia, March 2008. A/HRC/7/3/Add.7
[2]
Report of the Special Representative to the Secretary General on human rights
defenders, Mission to Indonesia, January 2008. A/HRC/7/28/Add.2
[3]
Komnas Perempuan, Ten Years of Reform: Progress and Setbacks in Combatting
Gender-based Violence and Discrimination (in Indonesian), March 2008.
[4]
Report of the Special Rapporteur on Torture,
Mission to Indonesia, March 2008, point 47.
A/HRC/7/3/Add.7
[5]
See Komnas Perempuan Special Rapporteur on Aceh, Aceh Women’s Experience:
Seeking and Accessing Justice from one Era to the Next, 2007, page 25.
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