Ricky Gunawan, Jakarta – Indonesia ratified the UN Convention against Torture almost 11 years ago. This means Indonesia is legally obliged to take effective legislative, administrative, judicial or other action to prevent torture within its jurisdiction.
Further, it has to ensure that all acts of torture are offences under its national laws. However, Indonesia still has no national legislation outlawing torture, placing it in violation of its international legal obligation under the convention.
The UN Special Rapporteur on Torture has recommended that Indonesia should set up an independent national authority, such as a national commission or ombudsman, with investigative and prosecutorial powers. The institution's task would be to investigate torture cases in an independent manner, without affiliation to any government body.
Furthermore, such an authority would maintain the impartiality of its prosecutors and investigators and implement the principle of equality before the law in its entirety, especially in cases involving police or military officers as perpetrators.
To minimize the increasing number of torture cases, the government needs to be more proactive in its efforts to prevent torture. The Association for the Prevention of Torture has pointed out that this requires three integrated elements: transparency in institutions, an effective legal framework, and capacity strengthening.
But implementing these elements is not easy. According to the Community Legal Aid Institute, or LBH Masyarakat, Indonesia's detention and correctional facilities are closed to detainees' lawyers and the public, which makes it hard to verify reports of torture happening there. In addition, these places are not subject to any monitoring mechanism.
The fact that torture mostly takes place behind closed doors makes it extremely difficult to pin down the perpetrators.
Therefore, transparency in penal and correctional institutions is urgently required. This would pave the way for justice for torture victims.
In a closed environment it is observed that detainees feel powerless to deal with the police. So victims and their families and relatives prefer bribing the police to escape torture instead of pursuing justice the legal way. The bribes continue, although the reward is only temporary. It is believed that paying bribes neither ends a victim's suffering nor decreases the attacks. Rather, bribes simply institutionalize the practice of torture.
This phenomenon occurs as a result of social behavior when dealing with torture cases. Bribing an officer to end torture creates negative repercussions in the fight against torture. By bribing a law enforcement officer, torture victims and their families constantly provide them financial benefits or incentives. This relationship substantiates one of the key difficulties in fighting torture.
According to the principles of law and economics, incentives and disincentives are not merely related to getting or not getting money; they are to ensure that laws induce compliance instead of fear. Scholars of law and economics argue that rational criminals will commit a crime only if the benefits are higher than the costs. Such costs are influenced by the probability of the crime being detected, the degree of law enforcement and the severity of punishment. Hence, a good law implies that committing a crime produces a higher cost compared to its benefits.
This approach has a deterrent effect on crime when both the probability of detection is high and criminal punishment is severe. As mentioned earlier, the three integrated elements of torture prevention fit well with efforts that increase the probability of crime detection, which in turn means a higher level of law enforcement with respect to torture.
Similar to other crimes, corruption in government agencies, including law enforcement agencies, represents the profit maximizing behavior of criminals. What makes it different from other cases is that when bribery is committed the victim also plays a very significant role in the crime. This suggests that redress provided to torture victims and their families can reduce and prevent the occurrence of torture.
Torture victims and their families need to be aware that they are a catalyst in stopping the practice of torture and ill treatment. The knowledge of events and courage to complain has considerable weight in determining who deserves to be punished.
If torture victims are afraid to speak out about their suffering, the evil practice of torture will continue to reign in Indonesia.
[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.]