Artikel Hukum

M. Ajisatria Suleiman

Jakarta Post, 18 June 2008

The current international discourse on torture, triggered by the “war against terror” committed by the United States and its allies, has diverted global attention to questions irrelevant to its prevention in the context many countries, including Indonesia. The leaks concerning incidents in Abu Ghraib or Guantanamo might have driven the issue of torture to the top of the human rights agenda. However, regrettably, the global discourse over the last several years has been dominated by the criticism charged to the United States’ practice. The issues that many countries are facing, such as Indonesia, are meanwhile underreported.

In order to meet the purpose of fighting international terrorism following the 9/11 tragedy, a relatively old debate has again emerged: may state torture suspect to save life of many innocents? Whether, and under what conditions, the use of force amounting to torture in the interrogation of suspected terrorists is compatible with the law? The worrying debate is usually supported with the so-called “ticking bomb scenario,” wherein a hypothetical captured terrorist with knowledge of the whereabouts of a timed bomb that could kill many people may reveal its location under torture. The question arises, "in those circumstances, can we use torture?

Under one view, torture could not be justified or excused by the fact that it is applied in order to prevent the death of innocent persons because human dignity is inviolable under any circumstances, and torture is the most severe violation of it. The inviolability of human dignity leaves no room for balancing opposing interests. This absolute prohibition establishes the foundation for banning torture under any circumstances in criminal law. Any exception to this position would implicate the risk of abuse and open the door to a dangerously slippery road.

According to the opposing view, the application of 'preventive torture' may be justified or excused if it is the last resort to prevent the death of innocents. This opinion was mainly based on the assumption that the omission of torture in situations which could infringe the human dignity of the hostage or the victim of the terrorist attack. It was submitted that not only does torture itself violate human dignity of the kidnapper, but the omission of torture also infringes the human dignity of the hostage. According to this view, the conflict between the dignity of the kidnapper and the dignity of the hostage has to be resolved in favor of the latter.

As interesting as this discussion may lead to, whether torture can be justified under certain circumstances draw necessary attention away from the larger frequency of torture that takes place in the Indonesian criminal justice systems as a result of poor state policy, systemic lack of controls, and inadequate forms of redress combined.

The fact is, torture happens everyday in Indonesia. Indeed, the use of torture by political and military leaders is a long and sad history of barbarity, especially during the era of the New Order regime. Although the government has never admitted that its interrogation methods amount to torture as defined under international law, many Indonesian have been subjected to torture, often resulting in permanent psychological and physical trauma, and even death.

What should be noted in Indonesia is that the vast majority of torture victims have no connection with terrorism or political crime. Almost every “ordinary people” (those who do not have political or economic backing) arrested for a criminal offence can expect, at the very least, serious maltreatment. Failure to confess could results in torture. Yet most public discourse on human rights does not concern the use of torture to extract information or confessions from suspected burglars or murderers--in other words, in the context of "ordinary crime,” when torture is almost invariably used. Thus, as committing torture is likely to be considered as business as usual, it would not become an overstatement to declare that torture in Indonesia has become the most serious “forgotten crime.”

The first and foremost action to be taken in order to prevent torture in Indonesia is raising awareness of the society, especially legal community, of the grave character of torture. Many people, including police officers, lawyers, legal scholars, and even human rights activists, still get confused in distinguishing “torture” and “maltreatment.” Ironically, those are the people who should legislate and enforce the law as well as empower the society to combat the practice of torture.

According to The United Nation Convention Against Torture and Other Cruel, Inhuman and Degrading Punishment (“CAT”), there are several main elements of torture, which are: (a) acts which intentionally inflict severe physical or mental pain or suffering; (b) for an illicit purpose; (c) committed, consented or acquiesced to by a public official; (d) not arising only from, inherent in, or incidental to lawful sanctions. These elements of crime are different from maltreatment, as established under the Indonesian Penal Code, which can be committed regardless its perpetrators, either state officials or civilian, and its purpose. The inability to differentiate torture and maltreatment could result in eliminating the “special characteristic” of torture as governed by international law, under which the crime has already received the status of hostis humanis generis, enemy of all mankind, taking into account its grave cruelty.

The Indonesian Constitution of 1945 actually has already prohibited the act of torture. In fact, torture is regarded as one of the “non-derogable rights,” a set of human rights that state can not derogate its obligations to protect, respect, and fulfill, regardless the situation. Again, lack of understanding and ignorance on torture result in the failure to formulate this provision into legislations, policies, and state officials conducts.

This is the issue that Indonesia is facing, not a philosophical discourse between deontologist and utilitarian view about the conditional necessity of torture. We, Indonesian, did not to be cynically reminded by Nietzsche, as he wrote in his book, that through most of human history (in Indonesia), there was no taboo on torture, and so no need to limit the cruelty that nature has given us.