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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


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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: contact@lbhmasyarakat.org 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: contact@lbhmasyarakat.org Website: www.lbhmasyarakat.org LBH Masyarakat welcomes any financial contribution for the development of CAVEAT Name : Lembaga Bantuan Hukum Masyarakat Bank : Bank Mandiri Branch : Tebet Timur, Jakarta, Indonesia No. Acc. :124–000–503–6620 Swift Code :BEIIIDJA

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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

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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


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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 LEMBAGA BANTUAN HUKUM MASYARAKAT

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.


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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 highranking officials has heightened tensions between those dedicated to fighting corruption and those intent on deception and graft.

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 highranking officials, including The rivalry reached new Susno and I Ketut Sudiharsa, heights when the deputy chairman of the commission allegedly Witness and Victim illegally wiretapped the Protection Agency (LPSK), National Police's chief of Figure 1: "I am a gecko, I dare to Deputy Attorney General detectives, Commander fight against crocodile'. Abdul Hakim Ritonga, Wisnu General Susno Duadji, in Subroto, a retired deputy relation to the government's bailout of Bank attorney general for intelligence, Anggoro Century last year. Susno coined the "cicak" Widjojo and his brother, Anggodo. The (gecko) and "buaya" (crocodile) names to impact of the tapes has reached the highest describe the relationship between the echelons of government; even President National Police and the commission. Susilo Bambang Yudhoyono's name is mentioned, although he has denied any Seemingly in response to the investigation wrongdoing. into Susno, the National Police detained deputy commissioners Bibit Samad Rianto On Nov. 3, mere hours after the tapes were

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C A V E A T | november 2009 | 5 played in court; Bibit and Chandra were released from detention.

pressure increases on President Yudhoyono to take action against those who have been implicated.

UNDERSTANDING RULE OF LAW AT RISK: INDONESIA’S 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

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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. "I see a very strong Firstly, the implication of indication that the judicial the National Police and the mafia played a role in Attorney General's Office, Munir's case by setting it via the KPK's taped up in such a way that the conversations, indicate prosecution's case was that the country's deliberately weak," Suciwati told local media judiciary has failed to act recently. 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.


C A V E A T | november 2009 | 6 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. --

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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.


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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

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.

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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, Amnesty International and LBH Masyarakat 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


C A V E A T | november 2009 | 8 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 FREEDOM OF EXPRESSION

CRIMINALIZING

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 International and LBH ensure that the Masyarakat are concerned by new Criminal legal provisions which criminalize defamation acts Code conforms (Chapter XVI on with “Defamation”), and in international particular Articles 310, 311 standards on and 316 which have been used freedom of in recent months in an expression, and apparent move to silence in particular human rights defenders while Article 19 of the they conduct their legitimate ICCPR which work on behalf of the human Indonesia rights of others. 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-95d2d36eb886e307/asa210082009en.pdf, accessed on 29 October 2009.

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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 PENALTY

FOR

THE

DEATH

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).


C A V E A T | november 2009 | 9 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.

Figure 2 Courtesy Amnesty International

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.

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. Amnesty International and LBH Masyarakat note that definitions of rape and sexual assaults in domestic criminal law should provide effective protection to individuals’ right to The role of the death penalty as a physical and deterrent for future crimes has not mental been proven. Recent UN sponsored integrity. scientific studies in 1998 and 2002 Therefore concluded: "… it is not prudent to definitions of accept the hypothesis that capital rape should punishment deters murder to a reflect the marginally greater extent than does fact that the threat and application of the punishment of life these crimes supposedly lesser 1 imprisonment.” Furthermore, its use are carries the irrevocable weight of committed, miscarriages of justice. 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

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.

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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-8743d305bea2b2c7/asa210012007en.pdf, accessed on 29 October 2009.


C A V E A T | november 2009 | 10 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 Amnesty International campaigns are among the worldwide for the decriminalization underlying of laws on abortion to ensure that causes of the victims of rape and incest, and current high women, who may be experiencing life- threatening complications due to rates of pregnancy, can have access to maternal abortion-related services. Amnesty mortality in International campaigns for any Indonesia.6 woman who suffers complications from an abortion to have access to the medical services she needs, whether she obtained the abortion legally or illegally.

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. LEMBAGA BANTUAN HUKUM MASYARAKAT

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 lifethreatening complications due to pregnancy, can have access to abortionrelated 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 INTERNATIONAL LAW

UNDER

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


C A V E A T | november 2009 | 11 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.

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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 LEMBAGA BANTUAN HUKUM MASYARAKAT

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


C A V E A T | november 2009 | 13 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.)

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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/


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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 nonprofit 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. LEMBAGA BANTUAN HUKUM 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.


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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. contact@lbhmasyarakat.org W. http://www.lbhmasyarakat.org

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Caveat - VOLUME 06/I, NOVEMBER 2009 - LBH Masyarakat