Persecution as Manifestation of Domination and Power of Law Enforcer in Indonesia

The practice of torture or other cruel, inhuman or degrading punishment still occurs although Indonesia already has various human rights instruments. This persecution practice is still one of the ‘methods’ used and has been legitimized in Indonesia law enforcement. This fact shows the failure of the state in carrying its main function to ensure human rights, freedom, security, and the welfare of its people.

The practice of torture or other cruel, inhuman or degrading punishment is often related with the state apparatus. In that context, the state apparatus repressive actions are manifested in the process of law enforcement, although in some of the cases, the ‘involvement’ of other officials besides law enforcement institution also exist (ultra vires).

Data of Information and Documentation Centre of Institute of Policy Research and Advocacy (ELSAM) shows that during the monitoring period from January until May 2016, there are 12 cases of the practice of torture or other cruel, inhuman or degrading punishment.  Most of the offenders behind this practices were the police (7 cases), prison officers (2 cases), prison officers and police members (1 case), Special Detachment (Densus) 881 members (1 case), and the Indonesia Navy member (1 case).

Meanwhile, if seen from the case distribution, most of the case occurred in Central Java (2 cases in Klaten and Banyumas), Jakarta (1 case in South Jakarta), Banten (1 case in pandeglang), West Java (1 case in Garut), North Sumatera (1 case in Deli Serdang), South Sumatera (1 case in Ogan Komering Ulu Selatan), Bangka  Belitung (1 case in Pangkal Pinang), Lampung (1 case in Tanggamus), Maluku (1 case in South Buru), South Sulawesi (1 case in Luwu), and North Sulawesi (1 case in North Kolaka).

The practice of the Draft of Criminal Code (RKUHP)still become a method in expressing the law enforcement power, despite the fact that reformation process of the Draft Bill on Criminal Code (RKUHP) and the Draft Bill on Code of Criminal Procedure (RKUHAP). Meanwhile, the special Draft Law (RUU) that regulates the criminalization of persecution also has not become part of government political commitment up to this date. Those three law instruments could be the means to eliminate the practice of torture or other cruel, inhuman or degrading punishment. The Convention against Torture or other cruel, inhuman or degrading punishment, also clearly emphasizes that the state should regard the persecution as criminal act.

In addition to that, the political effort of the persecution crime in the Draft of Criminal Code (R KUHP) is still restricted due to it only criminalizes Article 1 Convention against Torture, and has not yet regulated criminal act of Article 16 Convention against Torture which principally regulates cruel, inhuman, and degrading act. At this point, it is important to observe the power of non state actor who is involved in this human rights violation case. The cruel, inhuman, and degrading act could be seen as an expression method of power and domination in order to benefit from the victims’ powerlessness.

On the International Day in Support of Victims of Torture (26 June), Working Group on the Advocacy against Torture (WGAT) urged:

  1. President Jokowi to immediately decide the persecution ac as a crime and regulate it into the Criminal Code (KUHP);
  2. Government to immediately revise Code of Criminal Procedure (KUHAP) and insert the norms that against persecution, particularly the operational of the criminal judicial system through the principles of fair trial at every judicial stage;
  3. Government to immediately ratify the Draft Law (RUU) on Sexual Violence to eliminate the practice of immunity and impunity of sexual violence offender;
  4. Government to provide effective recovery mechanism on the victims of torture or other cruel, inhuman or degrading punishment which is conducted by either state or non state actor through judicial or non judicial mechanism;
  5. DPR to withdraw Government Regulation to Substitute the Law (Perppu) No. 1 / 2006 on second amendment of Law No. 23 / 2003 about Child Protection because it is against the norms that resist persecution.

Jakarta, 26 June 2016