In its several judgments, the Inter-American Court of Human Rights (the Court) has interpreted that the right to life shall be understood in its broad sense, that is, to include the right to a dignified life. As this paper will later explain, what the Court means by a dignified life is living a life with the proper enjoyment of the economic, social, and cultural rights, or what the Indian Supreme Court terms ‘the right to livelihood.’[1] This paper attempts to analyse this broad interpretation on the right to life by firstly seeks if the right to a dignified life is accepted as part of the right to life in international and other regional mechanisms. In so doing, this paper will not only refer to other international and regional human rights documents but also the case law from the European Court of Human Rights (the ECtHR) and the African Commission on Human and Peoples’ Rights (the ACHPR). This paper finds that the Inter-American has been the most progressive system in this sense, as it is the only system which bravely named some states have violated the right to life due to its failure in ensuring the proper enjoyment of economic, social, and cultural rights. Interestingly, this progressivity is triggered by the fact that the Court has a limited jurisdiction to examine cases related to the economic, social, and cultural rights. The Court’s broad interpretation on the right to life, therefore, has to be understood as a creative attempt to enforce the economic, social, and cultural rights within the American region. However, the Court’s progressivity is not risks-free. The end of this paper will highlight the possible negative impacts of such creative attempt which the Court may need to take into account.

The Court’s interpretation on the right to life

The right to life is guaranteed both in the American Declaration of the Rights and Duties of Man (the Declaration)[2] as well as the American Convention on Human Rights (Pact of San Jose)[3]. Although the provision on the right to life in the pact is much longer than in the Declaration, it does not explain much about the state obligation on the right to life. Article 4 (1) of the Convention only provides a general provision on the right to life that ‘every person has the right to have his life respected. This right shall be protected by law, and in general, from the moment of conception. No one shall be arbitrarily deprived of his life.’[4]

The Court has been dealing with the right to life since it examined its first contentious case in Velasquez-Rodriguez v Honduras in 1987. In this judgment, the Court admitted that the right to life does not merely impose negative obligation to state, that is, to refrain from any arbitrary and unlawful deprivation of life, but also the positive obligation to prevent, investigate, and punish any violation of the right to life.[5] However, it was not until 1999 that the Court started defining the positive obligation on the right to life even broader. In its landmark judgment on the ‘Street Children’ v Guatemala, the Court found that Guatemala had violated Article 4 (1) of the Pact of San Jose since the murder of five street children in Guatemala was attributable to the state.[6] Yet, what extraordinary in this judgment is the Court’s statement in paragraph 144 which reads,

‘the fundamental right to life includes, not only the right of every human being not to be deprived of his live arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur’.[7]

In their joint concurring opinion, Judge A. A Cancado Trindade and Judge A. Abreu-Burelly reaffirmed such interpretation by mentioning that paragraph 144 of the judgment ‘faithfully reflects the current state of evolution of the right to life’[8] that ‘the right to life cannot keep on being conceived restrictively, as it was in the past, by reference only to the prohibition of the arbitrary deprivation of physical life.’[9] Both judges saw that the broad interpretation on the right to life is required for the protection of vulnerable groups such as street children.[10] Neither the main judgment nor the concurring opinion, however, explained further on what constitutes the right to live in dignity.

Since Street Children, the Court has consistently upheld its interpretation on the right to life as to include the right to live a dignified life. Furthermore, the Court started trying to define what it means with ‘a decent life’, or at least, what the rights are involved when it refers to the right to decent life. In the Juvenile Reeducation Institute v Paraguay, the Court found that the Paraguayan government had violated Article 4 (1) of the Pact of San Jose by not providing proper health care and education for young people detained in the Panchito Lopez Centre.[11] In interpreting so, the Court referred to the Convention on the Rights of the Child (CRC)[12] and Article 13 of the Additional Protocol to the American Convention in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador)[13], in which Paraguay is a state party.

Later in 2005, the Court again named Paraguay had violated the right to life in the case of Yakye Axa Indigenous Community v Paraguay.[14] The Yakye Axa community had to move from their ancestral land because their land was sold without their consent. Before the Court, the Inter-American Commission on Human Rights (the Commission) and the representative of the community claimed that the community’s right to life had been infringed since the state had denied their right to ancestral territory. In their view, the denial had not only ‘deprived the Community of its traditional means of subsistence’ but also led them to live in inadequate living conditions that they could not enjoy any proper medical care, appropriate housing with the basic minimum services such as clean water and toilets, adequate access to food, as well as lack of access to proper education.[15] Considering article 26 of the Pact of San Jose as well as some articles on the Protocol of San Salvador,[16] the Court accepted the petitioners’ arguments and decided the Paraguayan government had violated Article 4 (1) of the pact.

A similar case was brought before the Court in 2006 on behalf of the Sawhoyamaxa indigenous community who, as the Yakye Axa community, is also originally the inhabitant of Paraguayan Chaco. In this judgment, the Court found that the Paraguayan government is responsible for the inadequate living condition of the Sawhoyamaxa community and had violated the Article 4 (1).[17] The Court, however, noted that not all situations in which the right to life is at risk is attributable to the states. The positive obligation arises only if the states have the knowledge (or should have known the knowledge) about the situation risking the right to life of an individual or group of individual.[18]

Prior to Sawhoyamaxa Indigenous Community v Paraguay, the Court also named Colombia had violated Article 4 (1) on the right to life in the case of Mapiripan Massacre.[19] The Court decided so not merely because the state had committed civilians massacre but also because the massacre itself had ‘created a climate of constant tension and violence that affected the right of the boys and girls of Mapiripan to a decent life.’[20] According to the Court, the state did not take any necessary means to ensure the boys and the girls in Mapiripan to have and develop a decent life, but instead ‘exposed them to a climate of violence and insecurity.’[21]

Even though the Inter-American human rights documents do not specify what kind of obligations that the states have on the right to life, such obligations might be identified through the case law in the Inter-American human rights system. The Court recognises that the right to life has both negative and positive obligation dimensions. What makes the Court’s view on the right to life interesting, however, is that it interprets the right to life includes the right to a decent life. As can be seen from the case law, the Court defines the right to a decent life as the enjoyment of some economic, social, and cultural rights which include the right to proper health care, education, housing, food, water and sanitation, and even the right to ancestral lands in the indigenous community cases. Violations of these rights, therefore, might amount to the violation of the right to life as well. Furthermore, in order to find a state has violated the right to life due to its failure in providing access to dignified life, the Court does not require that there is a concrete case has been established. In Yakye Axa Indigenous Community v Paraguay, for instance, the Court decided that Paraguayan government had violated Article 4 (1) of the Pact of San Jose even though it did not find that the death of some of the community’s member were attributable to the state.[22] As later will be explained, this is one of things which distinguishes the Court’s standard from the ECtHR’s in finding the violation of the right to life.

Right to a dignified life in other human rights systems

As any other human rights, the right to life imposes both negative and positive obligations to the states. In the International Covenant on Civil and Political Rights (ICCPR)[23], the positive obligations of state on the right to life can be identified from the wording ‘to ensure’ under Article 2 as well as the phrase ‘protected by law’ under Article 6 (1). Read in conjunction with Article 25 of the African Charter on Human and Peoples’ Rights (the Charter), Article 4 on the right to life of the Charter also indicates the same thing.[24] The European Convention on Human Rights (the ECHR) uses similar formulation, that Article 2 (1) reads ‘everyone’s right to life shall be protected by law.’[25] The ECtHR has reaffirmed this view in its several decisions and judgments by mentioning, ‘the first sentence of Article 2 (1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.’[26]

However, to what extent the states have the positive obligation on the right to life is a question which answer has not yet been decisive. There are several positive obligations on the right to life which are unequivocally accepted, such as the obligation to conduct effective investigation over suspicious death[27] and the protection of individuals from environmental threats or dangerous activities[28]. Yet the question if and to what extent the right to life should include the state positive obligation to protect the enjoyment of some economic, social, and cultural rights has not yet been settled. Yoram Dinstein sees the right to life should not be seen as a right to an appropriate standard of living that the states’ failure to reduce infant mortality should not be seen as a violation on the right to life.[29] The right to life, according to him, is not the right to live as someone wishes.[30] Przetacznik shares similar idea by arguing that right to life has to be understood in a strict sense.[31] He claims that the right to life needs to be distinguished from the ‘right to living’ which is covered by the system of economic, social, and cultural rights.[32] This opinion is entirely different with what the Supreme Court of India believes as the scope of the right to life. In its view, the right to life,

‘does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence… This is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living [sic!] that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.’[33]

Ramcharan and Menghistu share the idea of the Supreme Court of India that the right to life should not be interpreted in restrictively[34]. In their view, ‘a restrictive interpretation and understanding of the right to life is no longer adequate in the dynamic and changing events of the world today.’[35] Both Ramcharan and Menghistu quote the Human Rights Committee’s (the HRC) general comment on the right to life which expresses,

‘The expression “inherent right to life” cannot properly be understood in a restrictive manner… In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.’[36] (Emphasis added).

This particular paragraph of the general comment stresses that states undertake to adopt positive measures. Yet the wording ‘desirable’ indicates that reducing infant mortality and increasing life expectancy are not obligations of the states under the right to life, although they are good things for the states to do. For comparison, the HRC uses the word ‘desirable’ to express its view on the abolition of death penalty but the state parties are not obliged to do so[37]. In another general comment, the HRC mentions that although it is desirable that states accept the full range of obligations under the ICCPR, reservations in certain circumstances are allowed.[38] Due to lack of authoritative language used by the HRC in the general comment, therefore, it is too much to say that the HRC obliges the states to reduce infant mortality or to increase life expectancy under Article 6 of the ICCPR. Furthermore, except in the general comment, the HRC has never reiterated any view that failure to increase life expectancy is a violation of the right to life.

The ECtHR is even more cautious in accepting such far-reaching states positive obligation on the right to life.[39] There have been cases where the Court had to deal with this issue, in particular on the question if the violations of the right to health might constitute the violations of the right to life. In Cyprus v Turkey, the Court was asked to assess if the alleged practice of denying access to medical services to Greek Cypriots and Maronites who lived in northern Cyprus had infringed the state obligations on the right to life.[40] The Court admitted that ‘an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available the population generally.’[41] Despite this recognition, however, the Court found no violation of Article 2 of the ECHR based on three reasons. First, the Court did not find any evidence that the Turkish Republic on Northern Cyprus (TRNC) deliberately suspended the medical treatment from the Greek Cypriots and the Maronites living in northern Cyprus.[42] Second, that there had no cases been established on the lives of any patients were put in danger on account of delay in individual cases.[43] Third, that both Greek Cypriots and the Maronites were not prevented from the access to medical services in the north.[44] Responding to the Cyprus government’s argument on the low level of health care available in the north, the Court expressed that it ‘does not consider it necessary to examine in this case the extent to which Article 2 of the Convention may impose an obligation on a Contracting State to make available a certain standard of health care.’[45]

In Pentiacova and 48 others v Moldova, the applicants complained that the state’s failure to provide all medication necessary for haemodialysis at public expense had infringed their right to life.[46] Citing its view in its previous decisions and judgments including in Cyprus v Turkey, the Court reiterated that the authorities’ acts and omissions in the field of health care policy may in certain circumstances engage their responsibility under Article 2 of the ECHR.[47] Yet, considering that the applicants had failed to adduce any evidence that their live has been put at risk, the Court named the complaint was manifestly ill-founded.[48]

Whereas the ECtHR seems a bit reluctant to interpret the right to life broadly, the African human rights system took the same approach with the Inter-American’s. In its landmark decision in the SERAC v Nigeria, the ACHPR accepted that the right to life includes the right to food[49], a human right which is not guaranteed under the Charter.  The ACHPR, therefore, found Nigeria had infringed the right to life since the Nigerian government, both directly and indirectly, had destroyed the food source of people in Ogoniland.[50] Indeed, it is necessary to keep in mind that the context of this case is not totally similar with the Inter-American case law previously mentioned in the sense that the obligation violated by the Nigerian government is a negative one. Yet what essential to be underlined here is how the ACHR sees the right to life should not be understood in a strict sense.

The Assessment

The previous sections of this paper provide the overview on how the Inter-American’s interpretation on the right to life is more progressive compare to the international and the rests of the regional human rights systems. Even though generally the other systems similarly accept that the right to life should not be understood narrowly, the Inter-American system remains the only system which recognises it not only on paper. The Court has bravely named some of its state parties had violated the right to life ‘merely’ because they do not provide appropriate medical access or education for individuals within their country. The ECtHR is the most cautious one amongst the four systems since it imposes very high standards to name an improper medical treatment as a violation of the right to life, including that there should be a concrete case where a life is put at risk.[51] The ACHPR is actually on the same track with the Court, yet its case law on this issue, unfortunately, has not yet been developed.

One might put an argument that since the international and other regional human rights systems are a bit reluctant to broadly interpret the right to life, probably it is the Inter-American system (in particular the Court) which has stepped too far. It could be true that the Court has redefined the right to life much broader as it was intended to be when it first ‘created’. Yet even if that is the case, it does not mean that the Court’s view is not reasonable or understandable. The limits that the Inter-American human rights system has have forced the Court to take such bold position.

The lack of mechanism to enforce the economic, social, and cultural rights is an issue that the Inter-American human rights system has always been struggled with. The comprehensive recognition on the economic, social, and cultural rights under the Declaration, unfortunately, was not continued by the Pact of San Jose. The Pact of San Jose only provides one article on the economic, social, and cultural rights under Article 26 which expresses,

‘The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards…”[52]

The adoption of Pact of San Jose in 1969 raised confusion on the status of the Declaration and if the Commission still can apply the Declaration for states which had not ratified the pact. The General Assembly of the Organization of American States (OAS) later came up with a resolution mentioning the Commission should apply the Declaration to the OAS member states which have not ratified the Pact of San Jose and apply the pact merely to states that have ratified it [53]. For the protection of civil and political rights, the adoption of Pact of San Jose and the General Assembly’s resolution are apparently significant. They, however, are obviously declinations for the protection of the economic, social, and cultural rights, bearing in mind that the pact only provides a very limited protection on the economic, social, and cultural rights than what the Declaration does. To address this problem, the Commission then decided that for economic, social, and cultural rights issues, it can apply both the Declaration and the Pact of San Jose for the contentious cases brought before it.[54] At this point, the problem for the Commission was relatively settled. Yet this is not the case for the Court since it was only able to examine economic, social, and cultural rights cases with using Article 26 of Pact of San Jose. Unlike the Commission, the Court does not have the authority to apply the Declaration for contentious cases over the states which had accepted its jurisdiction.[55]

The Protocol of San Salvador was later adopted in 1988 and entered into force in 1999. This protocol recognises the full range of economic, social, and cultural rights and grants the Court the jurisdiction to examine cases with using this protocol. Unfortunately, the adoption of the Protocol is not necessarily an improvement of the economic, social, and cultural rights protection for two reasons. First, that only small numbers of states have ratified the Protocol. As of March 2011, there are only 15 of 35 members of the OAS which have ratified this protocol.[56] This means the Court is only able to use Article 26 of the Pact of San Jose for the rests 20 of the member states. Secondly, even for states which have ratified the Protocol, there is another issue remains. According to Article 19 (6) of the Protocol, it is only the right to education and the trade unions-related rights which can be litigated before the Court.[57] With all the limits set by the Inter-American human rights documents upon the Court, the enforcement of economic, social, and cultural rights will be a very tough homework in the American region had the Court is being so positivist and merely does what the documents tell them to do. Realising this, in many occasions the Court had implemented an ‘element approach’,[58] that is, to include the economic, social, and cultural rights into the civil and political rights, including the right to life, whose mechanisms and protection are more robust.

When the right to life touches children rights issues as in Street Children, Juvenile Reeducation Institute v Paraguay and the Mapiripan Massacre case, incorporating economic, social, and cultural rights to the right to life should not be seen as an over-interpretation on the right to life. In fact, by so doing, the Court is in compliance with the international standards on the protection of children rights. As also cited by the Court in the Juvenile Reeducation Institute v Paraguay, the CRC expresses that the children’s right to life imposes the obligation upon the states to ‘ensure to the maximum extent possible the survival and development of the child.’[59] The word ‘development’ itself is interpreted by the Committee on the Rights of Child as development in its broadest sense which ‘embracing the child’s physical, mental, spiritual, moral, psychological, and social development.’[60]

Whereas expanding the scope of the right to life as done by the Court is a progressive and creative attempt to enforce the economic, social, and cultural rights within the Inter-American system, a question arises if such expansion may lead to negative consequences. What the Court has done by interpreting the right to life broadly is what Laurence Helfer calls as ‘overlegalization that changes initial treaty bargains’.[61] He describes it as a situation where the level of legalization of a treaty is augmented over time that it imposes more obligation, precision, or delegation to the ratifying states than it was agreed and intended to be.[62] According to him, such overlegalization might lead to negative impacts including ‘an increase in noncompliance rates, proposals to amend a treaty to more accurately reflect state preferences, and denunciations of one or more instruments within a treaty regime.’[63] Helfer refers to the Trinidad and Tobago’s decision to denounce the ICCPR’s First Optional Protocol and the Pact of San Jose after the Privy Council’s judgments on a death row phenomenon case to illustrate his worries[64]. Being aware with this risk, it has been suggested that the Court needs to be more cautious and safer in interpreting the Pact of San Jose (or any other instruments that it has jurisdiction upon) since having states as a part of the system as well as the states compliance with the system are as important as progressive interpretation of the instruments.[65]

Such worries, no doubt, are understandable. Yet it is necessary to rethink if it is really the legal character of a supranational judgment which influences the compliance of the states with the judgment. Cavallaro and Brewer argue that, although the legal character of a supranational judgment may contribute, ‘it is the confluence of a range of domestic factors… that most influences whether the judgment will have a practical effect in a country.’[66] The states would not being receptive to supranational authority if the judgment does not resonate with public understanding of an issue, no matter how a judgment has been so strict in interpreting a treaty.[67] In relation with the Court’s broad interpretation on the right to life, in practice there has been no negative responses from the states indicating the Court has crossed the line. Three countries who were the respondents of the five cases mentioned before (the Paraguayan, Guatemalan, and Colombian government) did not raise any objections with the Court’s reasoning on the right to life. In fact, their compliance reports indicate that they have taken several steps to comply with the Court’s orders.[68] Not only with the orders that are ‘closely related to the right to life’ such as reparation and pecuniary damages but also orders which oblige them to amend their policy in health and education.[69] Whether the steps they have taken are adequate is a separate issue. The fact that these states are doing something to comply with the judgments shows that the risk of treaty denunciation is might not something that the Court should be really worry about.

What probably more urgent for the Court to be taken into account it broadly interprets the right to life is that such interpretation may, in future, weaken the economic, social, and cultural rights themselves. By keep using ‘the element approach’ and being reluctant to use Article 26 of the Pact of San Jose, the Court preserves the dominant trend in the Inter-American region of applying different standards of state responsibility to claims framed under civil and political rights than to those framed under economic, social, and cultural rights norms.[70] Another critique to the Court’s element approach on the right to life is what Melish terms as the danger of ‘underbreadth’.[71] In her view, there are crucial elements of the economic, social, and cultural rights that cannot be captured by the broadness of ‘life’, such as adequacy, availability, accessibility, and quality.[72] She observes, ‘[t]he right to health, for example, has distinct dimensions that cannot be sufficiently be targeted or addressed under a broad undifferentiating “right to life” analysis, including physical accessibility, cultural adequacy, and quality goods and services.’[73] If the Court keeps doing it, she concerns that the remedy ordered by the Court to the violating states might be only effective to address the violation of civil and political rights, but not the economic, social, and cultural rights.[74]

Conclusion

The Court’s broad interpretation on the right to life might be called slightly deviant with the other international or regional human rights bodies. Such deviance, however, is not only understandable but also necessary considering the Court’s limits to exercise its jurisdiction over economic, social, and cultural rights cases within the region. While keeping its progressivity in its judgments, the Court needs to be aware with the negative impacts which may occur in the future. The risks of non-compliance, denunciation of treaty obligations, dilution the economic, social, and cultural rights itself, as well as the problem with different nature of remedy between these rights with the civil and political rights are only some possibilities that have been identified. The Court, therefore, needs to come up with clearly defined standards on what the limits in incorporating economic, social, and cultural rights into the right to life in order to anticipate such future risks.

—

This paper attempts to identify the contribution of the African system as well as the Inter-American system in protecting and promoting economic, social, and cultural rights. In any human rights system in the world, these rights have always been treated as ‘second-class’ rights after the civil and political rights. In theory, the African and the Inter-American system are not an exception. The regional human rights documents in both systems offer a very limited guarantee on economic, social, and cultural rights either by not recognising some of the rights or by not providing proper measure to guarantee these rights. However, the African and the Inter-American system have attempted to address these limits. This paper argues that the most remarkable contribution of both system in protecting and promoting economic, social, and cultural rights is the fact that they are maximising the means of protection of economic, social, and cultural rights which in theory are actually very limited.

This paper will first briefly introduce the African and the Inter-American human rights system in relation to economic, social, and cultural rights. It will then continue to the discussion of how the mechanisms under these systems contribute to the protection and promotion of economic, social, and cultural rights by producing progressive decisions, judgments, and interpretations.

Protection of economic, social, and cultural rights in Africa

The African Charter on Human and Peoples’ Rights[1] (The Charter) guarantees both civil political rights and economic, social, and cultural rights. This makes the Charter the only legally binding human rights document which, in theory, provides protection of these rights equally. As a human rights instrument which attempts to takes into account African history, tradition, and civil values[2], the Charter provides protection not only to the ‘traditional’ economic, social, and cultural rights such as the right to education[3] and the right to work[4], but also ‘unique’ rights such as the right to access public service in one’s country.[5] However, there are some ‘traditional’ economic, social, and cultural rights which cannot be found under the Charter, namely, the right to food, the right to housing, and the right to social security.[6] The African Commission on Human and Peoples’ Rights have been trying to address the absence of some of these rights by adopting the Pretoria Statement in Economic, Social and Cultural Rights[7] as well as interpreting the rights in the Charter broadly, which this paper will go on to discuss further.

In relation to the substantive rights guaranteed, the Charter is unique in the human rights system as it has no clause on ‘progressive realisation’ or ‘maximum available resources’ as common is found in other economic, social, and cultural rights documents. The absence of such clauses is praised because it places economic, social, and cultural rights on the same footing as all other rights in the Charter.[8] However, it is criticised as unrealistic to expect immediate fulfilment of the economic, social, and cultural rights, especially considering the economic condition of African countries.[9]

The Charter also established The African Commission on Human and Peoples’ Rights whose mandate is to promote and ensure the protection of human and peoples’ rights as well as to interpret the provisions of the Charter.[10] The Commission shall receive state reports on the implementation of rights guaranteed under the Charter[11] and may receive inter-state communications regarding violations of the provisions of the Charter.[12] The later mechanism, however, has only happened once during the lifetime of the Commission.[13] The Commission may also receive and consider communications from other non-state parties[14], including individuals and non-governmental organisations as long as the communications meet the admissibility requirements.[15]

The Commission decisions and recommendations, however, are not legally binding as the Commission is a quasi-judicial body. Legally binding decisions can be obtained if the cases are brought before the African Court of Human and Peoples’ rights whose jurisdiction extends ‘to all cases and disputes submitted to it concerning the interpretation and application of the [African] Charter’ as well as ‘any other relevant human rights instruments ratified by the States concerned.’[16] Individuals and NGOs may directly submit a case to the Court only if the contested state has accepted the Court’s jurisdiction to receive non-commission submissions.[17] If the state in question has not done so, the case shall be submitted to the Commission which will bring the case before the Court.[18] Since it began its operation in 2006, however, the Court has only dealt with one case.[19]

Protection of economic, social, cultural rights in the Inter-American system

The American Declaration of the Rights and Duties of Man[20] guarantees both economic, social, and cultural rights as well as civil and political rights. Unfortunately, the protection for these two ‘categories’ of rights was not adopted in the American Convention on Human Rights[21] which entered into force in 1978. The Convention only provides one provision related to the economic, cultural, and social rights, Article 26, stipulates that:,

‘The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.’[22]

Recognising the lack of protection on economic, social, and cultural rights in the American Convention and that the enjoyment of these rights is necessary for the ‘ideal of free human being’[23], the Organization of American States (OAS) adopted Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador). The rights guaranteed in this Protocol are almost similar with the rights in the ICESCR, except that there is no provision on the right to self-determination, non-discrimination, equality of men and women, and the right to food. The Protocol also obliges its state parties to submit periodical report to the Secretary General of the OAS which will transmit it to relevant bodies including the Inter-American Commission on Human Rights.[24] According to Article 19 (6) of the Protocol, the Commission may also receive individual petitions for the violations to Article 8 (a) (trade union rights) as well as Article 13 (the right to education).[25] This provision limits the Commission’s competence as it means the Commission does not have any jurisdiction to examine any individual petitions which are based on the Protocol. However, the Court and the Commission have found a solution to address this problem as this paper will later explore.

Another mechanism available within the Inter-American system is the Inter-American Court of Human Rights, established by the American Convention. Article 61 of the American Convention envisages that only states who have made a separate declaration accepting the Court’s competence[26] as well as the Commission which can refer a case before the Court.[27] In 2003, however, the Court adopted new rules of procedure which allows victims of human rights violations to submit their cases autonomously to the Court.[28] Besides examining contentious cases, the Court also has the competence to interpret the Convention or any other treaties regarding the protection of human rights in the American system.[29]

The contributions

Both the African and the American system have a common problem in protecting and promoting economic, social, and cultural rights that they have limit to protect and promote some of the rights. This either because, (a) the rights are not explicitly recognised in their regional human rights documents as in the African case, or (b) because the mechanism itself not allows them to protect these rights effectively even though the rights themselves are actually recognised, as happened in the American system. To address this common problem, the African and the American system have tried to use a common solution which has been called ‘the elements approach’[30] by Cavallaro and Schaffer.

The common solution, ‘the elements approach’, is to ‘construe classic civil and political rights expansively so as to include economic, social or cultural elements.’[31] This happened in SERAC v. Nigeria where the African Commission interpreted the right to food as part of the right to life.[32] The Commission argued that by destroying its food sources, allowing private companies to destroy the food sources, and ‘created significant obstacles to Ogoni communities trying to feed themselves’, Nigeria had violated the right to life of the Ogonis.[33] In Modise v. Botswana, the Commission also interestingly decided that by making the complainant homeless, Botswana had violated the complainant’s right to freedom of cruel, inhuman, or degrading treatment under the Article 5 of the Charter.[34] The trend to ‘include’ economic, social, and cultural rights into classic civil and political rights in the African system is common in deportation and nationality cases as well as several cases that involve group rights.[35]

In the American system, the using of ‘the elements approach’ is not uncommon either.  In the case of Five Pensioners v. Peru, the Inter-American Court interpreted that the right to social security payments is also a part of right to property.[36] Previously, in 2001, the Court in its landmark decision in Baena Ricardo used the article on the right to adequate judicial protection to guarantee the effective realisation of the right to work and the rights of labours.[37]

In addition to using ‘the elements approach’, the two systems also have their own approaches to addressing their limits in protecting and promoting economic, social, and cultural rights. In the African system, the Commission ‘creates new rights’ which are not envisaged in the Charter by combining ‘the existing economic, social, and cultural rights.’ The Commission, for instance, interpreted that the combination of the right to the best attainable state of mental and physical health, the right to property, and the protection of the family constitutes the right to housing or shelter, which is not spelled out in the Charter.[38]

In the American system, Article 19 (6) of the San Jose Protocol states that it is not possible for the Inter-American Commission to examine individual petitions using the Protocol except for the right to trade unions and in the right to education cases. However, the Court and the Commission have ‘cooperated’ (perhaps not deliberately) to permit the using of articles in the American Declaration to submit individual petitions on economic, social, and cultural rights violations. In 1989 the Court interpreted that the fact that the American Declaration is not a treaty ‘does not, then, lead to conclusion that it does not have legal effect, nor that the Court lacks the power to interpret it’.[39] Later in 2001, the Commission recognised that it has the jurisdiction to examine individual petitions relating to economic, social, and cultural rights by using the articles under the American Declaration.[40] The Commission also used article 26 of the American Convention to examine individual petitions on economic, social, and cultural rights as in Jorge Odir Miranda Cortez et al v. El Salvador where it dealt with HIV drugs and the right to health issue.[41]

Based on the explanation above, the contribution on the protection and promoting economic, social, and cultural rights which have done by the African and the Inter-American system is to maximising the means of protection of economic, social, and cultural rights which, under their regional human rights instruments, are actually very limited. Had the Inter-American Court did not interpret that the American Declaration can be used to submit individual petitions on economic, social, cultural rights violations, individuals in the American states can only submit petition merely on trade unions and the right to education cases. Similarly, had the African Commission did not use the element approach or the right-combining approach, individuals in Africa will not be able to bring their complaint about the right to food or the right to housing to the regional system.

Addressing their own limits in protecting and promoting economic, social, and cultural rights is not the only contribution the African and the Inter-American systems have done. The African Commission, for instance, has contributed to give more legal weight in some non-legally binding human rights instruments related to economic, social, and cultural rights by quoting them in its decisions. This happened in Purohit and Moore v. The Gambia, where the Court referred to the Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care to determine the proper treatment for mental health patients.[42] This is possible to be done by the Commission for Article 60 of the African Charter allows it to ‘draw inspiration from international law on human and peoples’ rights’.[43]

Another landmark contribution of both systems is their interpretation on ‘exhaustion of domestic remedies’ requirement which makes it more accessible for people who is financially disadvantaged. In Purohit and Moore v. The Gambia, the African Commission stated that domestic remedies should be considered exhausted when such remedies are not affordable even though in theory the remedies are presence.[44] Previously in 1990, the Inter-American Court interpreted exactly the same in its Advisory Opinion that ‘if it can be shown that an indigent needs legal counsel to effectively protect a right which the Convention guarantees and his indigency prevents him from obtaining such counsel, he does not have to exhaust the relevant domestic remedies.’[45]

Conclusion

This paper finds that regardless the limits they have, both the African and the Inter-American system have contributed to the protecting and the promotion of economic, social, and cultural rights. Firstly, they have contributed by addressing problems and limitations within their own system which are not really in favour for economic, social, and cultural rights. Furthermore, they have contributed by making the regional mechanism more accessible to people with financial disadvantaged by re-interpreting the ‘exhaustion of domestic remedies’ requirement. The African Commission also has given more legal weight to non-legally binding economic, social, and cultural rights instruments by citing these instruments in its decisions.

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UN human rights treaty-based bodies have been criticised as ineffective in protecting human rights (Flood 1998; Boulesbaa 1999). This paper is written to reaffirm such assertion by examining the futility of the UN Subcommittee on Prevention of Torture (SPT). I argue that the ineffectiveness may be measured by two indicators. The first indicator is the gap between the number of countries the SPT has visited and the number of countries it planned to visit to. Another indicator I deliver in this paper is the low rate of states’ compliance to the SPT’s recommendations. I highlight the lack of financial and human rights resources within the SPT which has made it difficult for the SPT to fulfil its ‘country visits’ target. I also underline the confidentiality principle under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (OPCAT), which I argue has crippled the effectiveness of the SPT. In addition, I discuss the vagueness of ‘urgent and compelling grounds’ that can be used by state parties to object to the SPT’s visits which has the  potential to diminish the SPT’s efficacy.

The SPT: general description

OPCAT was adopted by the UN General Assembly in 2002 but it came into force on 22 June 2006. As of 15 August 2010, OPCAT has 54 state parties (UNTC 2010) or less than half of the state parties of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) state parties which is 147 (UNTC 2010).

As stipulated in Article 1 of OPCAT, the objective of OPCAT is to create a regular detention visit mechanism which is conducted by independent international and national bodies in order to prevent torture and ill-treatment. To reach this objective, state parties are obliged to establish their own national bodies which under OPCAT are called National Preventive Mechanisms (NPMs). Whereas the model and number of NPMs may vary in one country to another, the SPT is the only international body which is granted the authority to conduct detention visits within the territory of OPCAT’s state parties. The establishment of the SPT and its detention visit mechanism were expected to bring significant improvements to ‘strike at the structural or root causes of torture and cruel punishment and ill-treatment, thus bringing about the changes required to ensure that places of detention are free from such conduct’ (Arbour 2007 cited OHCHR 2007). The idea was introduced by Jean Jacques Gautier who argued that torture prevention should not be conducted merely by adopting texts which prohibit it but also ‘by the creation of an international mechanism that would have the authority to visit places where people were deprived of their liberty in order to inspect and make appropriate recommendations’ (Evans and Haenni-Dale 2004).

There are two types of visits that may be conducted by the SPT under OPCAT. The first one is regular visits and the other is short follow-up visits. The difference between these two is that in regular visits the SPT only has to notify state parties about its coming, while according to Article 13 (4) of OPCAT the follow-up visits may be proposed by the SPT to state parties. State parties, however, have no right to object to the SPT’s visits except for ‘urgent and compelling grounds’ stated in Article 14 (2) of OPCAT such as national defence, public safety, natural disaster, or serious disorder.

Article 12 of OPCAT stipulates that state parties are not only obliged to receive the SPT in their territory but also to grant unrestricted access for the SPT to visit any detention places it wants, and to interview any detainees.  In addition, state parties also have to provide all relevant information needed by the SPT. As described in Article 14 of OPCAT, the information are includes the number of persons detained, the number and location of detention places as well as the treatment and condition of detained persons.

After visiting its state party, the SPT shall write reports which consist of problems related to detention issues which occurred in the visited states and also give recommendations to overcome such issues. However, under the confidentiality principle in Article 16 (1) and (2) of OPCAT, the report and all correspondence between the SPT and state parties shall not be published unless the state parties give their consent.

Weaknesses of the SPT

Since it started its work in February 2007, the SPT has visited only nine of its 54 state parties. In 2007 the SPT visited Mauritius and Maldives; in 2008 it visited Sweden, Benin, and Mexico; and in 2009 it visited Paraguay, Honduras, and Cambodia. Lebanon is the only country which was visited by the SPT in 2010. Yet, at the time of writing no report has been sent by the SPT to the Lebanese government.

There is a large gap between the actual numbers of visits conducted by the SPT in the last three years and the number the SPT intended to visit. In its first annual report (CAT 2008, para 15), the SPT intended to visit eight state parties per 12-month period. This means the SPT would visit each state party every four or five years. From the point of view of the SPT, conducting fewer visits ‘could jeopardize the effective monitoring of how national preventive mechanisms fulfilled their role and the protection afforded to persons deprived of liberty’ (CAT 2008, para 15). It is noteworthy that the report was written in 2007, when the SPT only had 34 state parties. As today OPCAT has more state parties, the ‘visit target’ is increased to ten visits per 12 month period (CAT 2010, para 21). Due to lack of financial resources, however, the SPT limited its programme of visits to three countries (CAT 2010, para 21).

Besides the visiting target, financial constraints have also prevented the SPT delegations from being accompanied by independent experts (CAT 2010, para 34) despite Article 14 (3) of OPCAT stipulating that such companion should be available. For the same reason, the SPT is unable to increase its members from ten to 25 after the fiftieth ratification of or accession of OPCAT as mandated by Article 5 of the optional protocol.

The fact that some provisions under OPCAT cannot be implemented due to financial constraints has undermined the effectiveness of the SPT. Therefore, providing appropriate financial support is one of the urgent measures that should be taken in order to make the SPT become more effective. However, such support will only lead the SPT to work effectively in a theoretical sense. It will help the SPT to reach its visiting target, but leave the question on states’ compliance unsolved.

As have previously mentioned in the introduction, ‘effectiveness’ here should not be measured merely by the performance of the SPT but also by the level of states’ compliance with the SPT’s recommendations. It is unfortunate that even in terms of party states compliance the SPT cannot be considered to be effective either. Firstly, it can be seen from how many responses the SPT has received from visited countries. From nine visited countries, only Mauritius, Sweden, and Paraguay which have responded to the SPT’s report. Secondly, the responses of these three countries are not really satisfying, especially in the case of Mauritius since its government asked the SPT to keep all correspondence between them confidential.

At a glance, the responses of the Swedish and Paraguayan government might give the impression that both governments comply with the SPT’s recommendations. Paraguay, for instance, reported that it has established a Human Rights Department within its National Police and built Pedro Juan Caballero Prison (SPT 2010b, para 12 and 50) as requested by the SPT (SPT 2010a, para 242 and 296). However, it does not take any necessary steps to align the torture definition in its penal code with the definition under CAT (SPT 2010b, para 238). The Paraguayan government has not followed the SPT’s recommendation to increase human and financial resources for the Office of the Public Defender (SPT 2010a, para 256) either on reason that ‘it has not been possible to obtain these increases’ (SPT 2010b, para 99).

The same issue also occurred in the Swedish government’s response. According to its reply, the Swedish government followed the SPT’s recommendation to publish an information sheet concerning detainee’s rights and also to create an accessible new digital database on any information related to the legal process (SPT 2010c, para 49 and 91; SPT 2010d, para 4 and 17). However, it refuses the SPT’s recommendation to review some provisions in its Judicial Procedure Code (Rättegångsbalk) which allows the District Court to restrict detainee’s contact with the outside world (SPT 2010d, para 23-26).

Despite the low rate of states’ compliance, OPCAT does not provide any strong measure to encourage state parties to follow the SPT’s recommendations. Article 16 (4) of OPCAT only mentions the measure that may be taken by the SPT against uncooperative and disobedient state parties is to issue a public statement on their disobedience and/or to publish the SPT’s report on their country without their consent. In short, the SPT has the right to except the confidentiality principle for uncooperative and disobedient state parties.

It is interesting that OPCAT treats the exception of the confidentiality principle as a ‘sanction’ against state parties who have been uncooperative and disobedient to its recommendations. Publishing reports on the human rights situation in a country has been practiced for years by UN under its various human rights monitoring and reporting mechanisms, such as the reports on Universal Periodical Review (UPR), concluding observations by other UN treaty bodies, or reports written by UN Special Rapporteur. Therefore, it is likely that some findings in the SPT’s report have been covered by other UN human rights mechanisms’ reports. For instance, issue on pre-charge detention (arraigo) in Mexico has been called into question in Human Rights Council (HRC)’s Concluding Observation in 2009 (HRC 2009, para 94), CAT report in 2007 (CAT 2007, para 15), as well as in the SPT’s report in 2010 (SPT 2010, para 212-238). It is true that these documents do not cover all the same issues. Yet, it is very possible to get at least a general overview on torture and detention facilities in a country without reading the SPT’s report but by reading HRC’s Concluding Observations or the CAT’s report.  Due to this fact, state parties might think publishing the SPT’s report without their consent will not bring serious consequences for them as other reports written by other UN human rights mechanisms have already covered the general human rights issues in their countries.

Instead of encouraging state parties to comply with the SPT’s recommendations, the confidentiality principle has several disadvantages. It prevents the involvement of the international community, NGOs, and even the Committee Against Torture to monitor and press state parties which practice torture and ill treatment against their detainees. The confidentiality principle also blocks the possibility for the SPT to double check information given by the state parties’ government in their replies. For example, the SPT cannot check whether it is true that the government of Mauritius has actually fulfilled the SPT’s recommendations as it has reported to the SPT. The only possibility to check the validity of information given is by conducting another visit – which is too costly and takes a lot of time.

Another provision that should be highlighted is Article 14 (2) of OPCAT. According to this article, state parties are not allowed to object to visits conducted by the SPT unless for ‘urgent and compelling grounds’ such as national defence, public safety, natural disaster and serious disorder. At a glance, it gives the impression that the SPT has been given full power to control and decide whether it wants to visit a country or not. Such an impression, unfortunately, is partly untrue.

Except natural disaster, compelling grounds mentioned in article 14 (2) of OPCAT are vague and subject to arbitrary interpretation. How, for example, is ‘public safety’ defined? The Siracusa Principles define ‘public safety’ as ‘protection against danger to the safety of persons, to their life or physical integrity, or serious damage to their property’ (UN ECOSOC 1984). Yet, this definition is just as vague as the term ‘public safety’ itself. Due to this vagueness, it is not impossible that state parties will object to the SPT’s visit by using their own definition of ‘urgent and compelling grounds’. In this sense, the SPT does not really have the full authority to decide which country it can visit.

Conclusion and recommendations

This paper finds that the futility of the SPT is caused by lack of financial and human resources as well as the absence of proper follow up mechanisms to ensure states to comply with the SPT’s recommendations. Excepting the confidentiality principle to ‘punish’ uncooperative and disobedient state parties is unlikely to successfully encourage states to comply with the SPT’s recommendations. Instead, it prevents the international community and other related parties being involved in monitoring the human rights situation in other countries. For these reasons, it is necessary to abolish the confidentiality principle under the OPCAT as well as to provide an appropriate financial and human resources support for the SPT. In addition, the SPT also needs to set minimum standards on the ‘urgent and compelling grounds’ under OPCAT to prevent state parties to interpret them arbitrarily and shrink from its obligation to receive the SPT visits.

Introduction

There has been no comprehensive report, research, or documentation which can tells the exact number of torture cases in Indonesia. In United Nations Committee against Torture Concluding Observation on Indonesia published in 2008, we can only see that there are “numerous, ongoing credible and consistent allegations of routine and widespread use of torture and ill-treatment of suspects in police custody”[1] without knowing exactly how widespread it is. In same year, Jakarta Legal Aid Institute (LBH Jakarta) conducted research which shows that approximately 83% detainees had been tortured or experienced ill treatment, but the research only covered Jakarta and some sub-urban areas surround it.[2]

However, it is naive to say that torture is not a widespread practice in Indonesia just because of the absence of such comprehensive report, research, or documentation. In fact, if it is seen in different way, the absence of them may indicate how widespread and massive practice of torture is that it is difficult to document or make a comprehensive report on it.

According to the UN Special Rapporteur on Torture Manfred Nowak’s report, there are several factors which facilitate the prevalence of torture in Indonesia. These factors are including the lack of definition and prohibition of torture in accordance with Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), the excessive length of police custody, and the absence of independent detention facilities monitoring mechanism.[3] Whereas the factor on torture definition has been covered by the draft of Indonesian Penal Code (KUHP) revision and the second factor has been discussed in the reviewing process of Indonesian Criminal Procedure Code (KUHAP), the latter factor on the independent monitoring mechanism has not been really discussed much.

The absence of independent detention facilities monitoring mechanism is often linked to the urgency for Indonesian government to ratify Optional Protocol CAT (OPCAT) as have been recalled by human rights activists for last several years. OPCAT ratification, which generally obliges State Parties to allow visits by either national or international independent bodies to places of detention, is believed will be effective to prevent practice of torture in Indonesia. It is left not discussed thus unclear, however, how OPCAT ratification will be able to prevent and minimise practice of torture in Indonesia, as if OPCAT ratification is self-executed and it alone will be sufficient.

OPCAT, the substance

The main point of OPCAT is located in its’ Article 4 which obliges each State Party to allow visits by Subcommittee on Prevention of Torture and other Cruel, Inhuman, Degrading Treatment or Punishment (hereinafter referred as Subcommittee) and national visiting bodies to places of detention.[4] It is worthy noted that the term ‘places of detention’ actually has broader meaning which in the Optional Protocol defined as places where persons “… are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence”[5] so it has to be understood that the visiting bodies shall be given permission to visit not only detention facilities but also correctional facilities.

Subcommittee is an international body under United Nations which was established by OPCAT[6] and has the mandates to visit places of detention, assists State Parties and their national preventive mechanisms, as well as to cooperate with any relevant institutions or organizations in order to preventing torture.[7] To ensure that Subcommittee can exercise its mandates, State Parties are undertakes to provide unrestricted access to any places of detention and any information related to detention, including permitting Subcommittee to interview anyone.[8] Only urgent and compelling grounds recognised by Article 14 paragraph (2) of OPCAT such as national defence and public safety which can be used by State Parties to object the visit of Subcommittee to places of detention within its’ territory.[9]

Anyhow, as pointed out by University of Bristol OPCAT Research Team in its’ policy paper published in December 2009, what is actually the heart of OPCAT system is the National Preventive Mechanisms (NPMs) that what kind of visiting bodies State Party choose to designate and how to engage with them is “a crucial matter for the Subcommittee and effectiveness of the system to put in place by the OPCAT”.[10] Subcommittee in its’ first annual report itself also recognised the important role of NPMs by stating that “… unless the [national preventive] mechanisms are able to fulfill their role as the on-the-spot visiting mechanisms for the prevention of ill-treatment, the work of the Subcommittee will be seriously limited and adversely affected”.[11]

State parties which have ratified or accessed OPCAT are obliged to maintain, establish or designate one or several NPMs at least one year after the ratification or accession.[12] According to Article 19 of the optional protocol, NPMs shall be granted minimum power to regularly examine the treatment of persons in places of detention, make recommendations to the relevant authorities, and to submit proposals and observations concerning existing or draft legislation.[13]

OPCAT does not regulate how should State Parties maintain or establish the mechanism or what kind of bodies should be mandated the obligations to conduct torture prevention mechanism. It only regulates the basic rules such as mandates, obligations, right and authorities, and leave the rest to the State Parties with an important note: State Parties shall consider the principles relating to the status of national institutions for the promotion and protection of human rights[14], which is referred to Paris Principle.[15] The Subcommittee also has published the Preliminary Guidelines for the On-going Development of National Preventive Mechanisms (NPMs) which shall be used by State Parties in maintaining, establishing, or designating their NPMs.[16]

Options available

As OPCAT only regulates the basic rules of NPMs and leaves the State Parties to determine what kind of body and how the NPMs will be implemented, there will be questions need to be answered later once Indonesia decides to ratify the optional protocol: what kind of mechanism we would like to implement? Which institutions will be given the mandate to conduct torture prevention mechanism?

Currently there are 51 countries[17] which are State Parties to OPCAT with 32 of them have designated their NPMs.[18] From these 32 NPMs, generally there are three models which can be considered by Indonesia. First model is that authority and obligation to conduct NPM given to an institution which was specially established to do so. This model is implemented by France with its’ Contrôleur général des lieux de privation de liberté (General Inspector of Places of Deprivation of Liberty)[19], Germany with its’ Bundesstelle zur Verhütung von Folter (Federal Agency for the Prevention of Torture)[20], and also by several other countries including Honduras, Malta, Senegal, and Switzerland.

The second model is where the obligation and authority to conduct NPM given to an institution which already exist. Conducting torture prevention mechanism, therefore, is only one of obligations of this institution. From practice of several countries, usually the mandate is given either to national human rights commission or to ombudsman commission.

Maldives is an example of countries which mandates its’ national human rights commission to conduct NPM that according to Article 21 letter c of Human Rights Commission Act (Act No. 6/2006) “the members of the [Human Rights] Commission [of Maldives] or persons assigned by the Commission accompanied by the members may without prior notice, inspect any premises where persons are detained under a judicial decision or a court order.”[21] Whereas Denmark is one of countries which decides to impose the obligation to conduct NPM to the national ombudsman. Under Section 18 of The Denmark Ombudsman Act, the Parliamentary Ombudsman has authority to inspect any institution or company and any place falling under his competence including state prisons, detentions, and secure institutions for juvenile offenders.[22]

Another country which implements the second model is Estonia. However, unlike Maldives which gives the mandate to conduct NPM to the national human rights commission or Denmark which entrusts it to the ombudsman, Estonia prefers to impose the obligation to the Oigustkantsler or Chancellor of Justice which is quite similar to Indonesian Constitutional Court as it has the power to conduct constitutional review but also has function of the ombudsman.[23]

The third model is the multiple-bodies as practiced by New Zealand and United Kingdom. New Zealand grants the authority to conduct NPM to four bodies which are coordinated by its’ Human Rights Commission: the Office of Ombudsman, the Independent Police Conduct Authority, the Office of the Children’s Commissioner and the Inspector of Service Penal Establishment of the Office of the Judge Advocate General of the Armed Forces. Whereas United Kingdom is the country with the most national preventive mechanism bodies that it designated 18 bodies coordinated by Her Majesty’s Inspectorate of Prisons.[24] In the multiple-bodies model, all of the bodies have same obligation which is to monitor place of detentions but what differ them to each other is the specific theme which fall under their concern or jurisdiction. In United Kingdom, for example, The Children Commissioner for England has the authority to visit places of detention for children.[25]

Think beyond ratification: in search for effective NPMs

If Indonesia is thinking to ratify OPCAT, it had better start to think of which model of NPM it wants to implement later. As have mentioned before, state party only has one year after ratification or accession to maintain or establish NPM so while waiting for the government to fulfil its’ promise to ratify OPCAT, it is needed to think of what kind of NPMs which will be effective to be implemented in Indonesia. Indonesia can choose one of the three models or even can create its’ own model. For sure, there are several things need to be considered, including the national budget, geographic conditions, and the current resources available.

Establishing a new brand institution to specifically deal with places of detention visit is a fine idea in sense that the new institution can be focus to detention issue. However – as it always does when it comes to idea to establish any new institution- objection to this model which is likely to rise is the national budgetary matters. Even though it is something that also needs to be considered, there is another more important concern regarding the idea to implement this model: will it be effective, considering that geographically Indonesia is such a big country and practiced decentralisation? Single-unified NPM is believed will be only effective in decentralised states with relatively small geographic size and national constitutional authority, or the presence of very small regional governments with low populations.[26] So in this sense, seems that idea to establish a new institution to deal with all places of detention in Indonesia will not work effectively.

The budget and geographical issues should not be a problem if the authority to conduct NPM is given either to National Human Rights Commission (Komnas HAM) or Ombudsman as these two institutions exist already in Indonesia and both have representative offices in some parts of Indonesia. Ombudsman’s headquarter is located in Jakarta, but it also has representative offices in Jogjakarta, Kupang (Nusa Tenggara Timur), Manado (North Sulawesi), as well as in Medan, North Sumatra. Whereas Komnas HAM has its’ headquarter in Jakarta and also representative offices in Padang (West Sumatra), Pontianak (West Kalimantan), Jayapura (Papua), Aceh, Ambon, and Palu (Central Sulawesi). Other advantages in granting the authority to conduct NPMs to existing institutions such as Komnas HAM and Ombudsman is that it is ‘more politically expedient, and … to avoid the danger of duplicating institutions and mandates’.[27] Nevertheless, it is important to be noted that these institutions have any other tasks and mandates so giving additional resources[28] – human, financial, and logistical- is a requirement if Indonesia decides to implement this model.

The limited resources problem can be worked out if Indonesia implements the third model of NPMs: the multiple-bodies model. What can be done is Indonesia shall share the authority to conduct NPMs to several exist institutions which will be focus on detention issues related to their current concern. For example, Komnas HAM shall be given the authority to conduct detention and correctional facilities for men and immigration detentions as well as to act as coordinator for the NPMs, whereas National Commission on Violence against Women (Komnas Perempuan) shall be granted obligation to conduct monitoring on places of detention for women and Indonesian Children Protection Commission (KPAI) shall be the institution in charge to monitor the condition of children detention facilities and prisons. Yet, comparing to the second previous models, this model is not problem-free model either. Lack of coordination, gaps and duplications are problem which likely to occur when a state implement this model.[29]

Time to think

All of the NPMs models explained previously have their own advantages and disadvantages. Surely it is not easy to consider which one is best and most effective for Indonesia current condition, and this paper will not be able to give the comprehensive answer for that question. What is important to be noted and highlighted is that it is no longer time for us to solely urge the government to ratify OPCAT, as the OPCAT per se will not be sufficient, it’s not self executed.

Indonesians have witnessed and experienced how international human rights instruments ratifications could not help much in championing human rights in this country. Fact that torture is still not criminalised after 12 years since Indonesian ratified CAT in 1998 is only an example. Ratifying international human rights convention is good, but when it comes to human rights merely good is not enough. We need the ratification to be useful. For this very reason, it is essential to think beyond of ratification, what will need to be done soon after the ratification.

It is time for us to start thinking.

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References:

[1] Concluding Observations of the Committee against Torture INDONESIA; CAT/C/IDN/CO/2; 2 July 2008; Section C para 10.

[2] See LBH: 83 Persen Tersangka Alami Penyiksaan http://nasional.vivanews.com/news/read/396-lbh__83__penyidik_gunakan_kekerasan

[3] See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mission to Indonesia; A/HRC/7/3/Add.7; 10 March 2008; Section 4 para 65.

[4] Article 4 of the OPCAT.

[5] Ibid.

[6] See Part II and III of the OPCAT.

[7] Article 11 of the OPCAT.

[8] Article 14 of the OPCAT.

[9] Article 14 para (2) of the OPCAT.

[10] University of Bristol and Arts & Humanities Research Council The Optional Protocol to the UN Torture Convention and the UN Convention on the Rights of People with Disabilities: some common issues (2009); p.3.

[11] First Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; CAT/C/40/2; 14 May 2008; para 29.

[12] Article 17 of the OPCAT.

[13] Article 19 of the OPCAT.

[14] Article 18 para (4) of the OPCAT.

[15] In this document there are several principles need to be considered by States in establishing national institutions including principle on ‘competence and responsibilities’ and ‘composition and guarantees of independence and pluralism’. See Paris Principles National institutions for the promotion and protection of human rights; A/RES/48/134; 20 December 1993.

[16] The English version of the guidelines may be downloaded on http://www2.ohchr.org/english/bodies/cat/opcat/mechanisms.htm

[17] To see the list of OPCAT State Parties please visit  http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9-b&chapter=4&lang=en

[18] To learn more about the global status of OPCAT ratification please visit http://www.apt.ch/content/view/138/152/lang,en/

[19] Article 1 French Law of 30 October 2007 states that “The Contrôleur général des lieux de privation de liberté, independent public body, is in charge, without prejudice to the prerogatives given by law to the Judiciary or any court, to control conditions of management and convey of people who are deprived of liberty, in order to check enforcement of their fundamental rights. In his duties, he doesn’t receive instructions from any authority.”

[20] The Federal Office for the Prevention of Torture was established on 20 November 2008 with the statutory notice of the Federal Ministry of Justice (Federal Bulletin, Nr 182, S. 4277)

[21] Article 21 letter c of the Maldives Human Rights Commission Act; Act No: 6/2006.

[22] Section 18 of the Denmark Ombudsman Act; Act No. 473 of 12 June 1996.

[23] Download the booklet of Chancellor of Justice of the Republic of Estonia on http://www.oiguskantsler.ee/public/resources/editor/File/INGLISKEELNE_KODULEHT/Areas_of_activity/buklett_2008_ENG.pdf

[24] See correspondence between United Kingdom government and the Subcommittee in 2009 regarding the 18 bodies to conduct NPMs in UK which can be downloaded on http://www2.ohchr.org/english/bodies/cat/opcat/docs/NPM/UKs_NPM.pdf

[25] See England Children Act 2004; Article 2 para (8). “The Children’s Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time – (a) enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and (b) if the child consents, interview the child in private.”

[26] Matt Polard Implementation of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (OPCAT) in Federal and other Decentralized States (2005); p. 12.

[27] Audrey Olivier and Marina Narvaez OPCAT challenges and the way Forwards: The ratification and implementation of the Optional Protocol to the UN Convention against Torture; Human Rights Centre University of Essex; p. 10. http://projects.essex.ac.uk/ehrr/V6N1/OlivierNarvaez.pdf

[28] Ibid.

[29] Ibid, p.12.

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This article was written for CAVEAT, a publication of LBH Masyarakat, Vol.13/II June 2010. The short version of this article was published by The Jakarta Globe on 26th of June 2010, http://www.thejakartaglobe.com/opinion/while-lawmakers-dawdle-torture-remains/382590

Jeff was arrested by police on August 2, 2003 at his Central Jakarta restaurant, Recon. The police found 1.7 kilograms heroin in the bedroom of the building. His case was later brought before the Central Jakarta District Court and on November 12, 2003, the Judges reached a guilty verdict on the charge of the sale of narcotics. The court therefore punished him with the maximum punishment that may be imposed for those who commit such an offense, the death sentence. Jeff and his lawyers filed an appeal to a Higher Court and even the Supreme Court yet both verdicts reached the same conclusion as the Central Jakarta District Court.

At first glance, this case may seem like just another ordinary narcotics case. A suspect related to a narcotics case was arrested and later sentenced to death. The death penalty is not an uncommon practice in Indonesia, in keeping with the country’s ‘war on drugs’ policy. Jeff’s case, however, is more complex.

Jeff was charged with offering narcotics for sale (Category I) which is an offense under Article 82 paragraph (1) Law No. 22/1997 regarding Narcotics. During trial, however, not even a single witness that testified has heard, seen, or known that Jeff conducted narcotics transactions in his restaurant. Testimonies delivered by two police officers who arrested Jeff only proved that the heroin were found in Jeff’s restaurant but did not provide enough evidence that Jeff is a drug dealer. The two police officers also testified that they received information from a ‘reliable source’ that narcotics transactions often been conducted in Jeff’s restaurant. However, they have yet to reveal this ‘reliable source’ to the court or to Jeff’s defense team.

Due to this lack of evidence, Jeff should have been acquitted as there was not enough evidence to prove that he is guilty. This case, however, is a perfect example how ‘the ideal’ does not always take place in the Indonesian judicial process. Instead of acquitting Jeff due to lack of evidence, the judges used their own assumptions as grounds to find Jeff guilty. Firstly, they assumed that 1.7 kilograms heroin is too much for self consumption and that Jeff must have wanted to sell the drugs despite no proof to the contrary. A judges’ assumption is not recognized as legal sense of proof under the Indonesian Criminal Procedure Code. Assumption may be used merely as supporting grounds when there are enough legal sense of proof to be sure that the accused is guilty.

Yet it this not the worst assumption the judges used in their verdict against Jeff. Even worse, the second assumption used by judges in Jeff’s case is in regards of his race. In the Indonesian legal system racial discrimination is alive and well. The verdict explicitly states that ‘black people from Nigeria often become the object of police’s monitoring, as they often conduct tidy and undiscovered narcotics transactions in Indonesia’. This assumption leads to questions: are we really equal before the law or do Indonesians, unconsciously, still live in the era of apartheid when skin color and ethnic background does matter?

Does skin color matter in front of the court?

Human rights scholar Jack Donnely defines human rights as rights one has simply because one is a human being. Based on this definition, human rights are endowed to all human beings regardless of one’s skin color, religion, social background, or any other conditions. Besides employing the principle of universal human rights, such definition implies the very basic element of human rights as well which is the concept of equality. ‘Equality’ here in sense that no groups are superior to others and neither should any group enjoy more basic rights than others. When a group or an individual enjoys fewer rights than others for unreasonable grounds then what transpires is ‘discrimination’ which is contrary to the concept of equality.

Together with the concept of liberty, the formal recognition of equality as a basic element of human rights and may be found in the text of Universal Declaration of Human Rights (UDHR). The famous first article of UDHR mentions that ‘all human beings are born free and equal in dignity and rights’ which is strengthened by what is stated in Article 2 that ‘everyone is entitled to all rights and freedoms… without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status’. As UDHR has no binding power, several international human rights instruments related to anti-discrimination were later enacted, including the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Indonesia itself has ratified the CERD by Law No. 29/1999 and government and parliament enacted Anti Racial Discrimination Law in 2008. It does not mean, however, that before 2008 there were no laws provided protection against discrimination. Law No. 39/1999 on Human Rights provides such protection and even Article 28D paragraph (3) of the 1945 Constitution guaranteed that everyone within Indonesia’s territory has right to be treated equally before the law. In short, the spirit of anti-discrimination has been introduced in many laws and regulations in Indonesia which is also recognized by Committee on the Elimination of Racial Discrimination as ‘positive aspects’ in its’ Concluding Observation in 2007.

All of these laws and regulations, unfortunately, are not enough to ensure that a person will not be discriminated against. This should be surprising as the obligation for State to combat discrimination is not only imposed to the lawmakers and executive but judiciary branch as well.

The obligation of the State to prohibit and eliminate discrimination related to the judiciary power is enshrined in Articles 5 and 6 of the CERD. Article 5 concerns equality before the law, Article 6 of the Convention highlights the State’s obligation to ensure effective protection and remedies through competent national tribunals or any other State’s institutions. To guide State parties –particularly the judiciary branch- in implementing the provisions in Article 5 and 6 of CERD, the Committee on the Elimination of Racial Discrimination issued General Recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system.

What has happened in Jeff case, unfortunately, was totally incompatible with all the mandates given by CERD or its’ General Recommendations’. Instead of preventing ‘questioning, arrests and searches which are in reality based solely on the physical appearance of a person’ and ‘ensure certain groups enjoy all the guarantees of a fair trial and equality before the law’ as stipulated in the recommendation number 20 and 28, the judges in Jeff’s case have taken part in championing racial discrimination itself. It is ironic how the institution which is hoped by discrimination victims to provide remedies has in fact contributed to race discrimination violation

It is regrettable that judges in Jeff’s case have behaved impartially, and based their verdicts on such biased reasoning. As stipulated in the Bangalore Principles of Judicial Conduct 2002, ‘impartiality’ is one of values that should be upheld by judges as well as value of ‘equality’ in examining cases. The value of ‘impartiality’ includes an obligation for judges to ‘perform his or her judicial duties without favor, bias, or prejudice’. In a line with ‘impartiality’ and ‘equality’ values outlined  in the Bangalore Principles comprises of  a prohibition for judges to ‘… by words or conduct, manifest any bias towards persons or groups on the grounds of their racial or other origin’.

Unfair Trial

The concept of equality before the law and court is not only related to non-discrimination but to fair trial as well. As stated in Article 14 of International Covenant on Civil and Political Rights (ICCPR), besides equality before the court and tribunals there are more elements of fair trial, including the right to be informed promptly and in detail in a language which the suspect or accused understands of the nature and cause of the charge against him/her and the right to be tried without undue delay.

In Jeff’s case, these fair trial elements were violated. Police, prosecutors, and the court did not provide an interpreter for him during the legal process. During trial, the court provided free assistance of interpreter but the translation was only provided from Bahasa Indonesia to English, a language Jeff did not understand. No effort was made to find a translator that spoke Jeff’s first language. Interrogation by police and the prosecutor, and even examination before the court were conducted in a language Jeff could not understand. Ironically, in their verdict judges claimed that Jeff did not give clear information during his examination in court and this reason was used as a further justification for the judges to impose a severe punishment for Jeff. Now the question is: how can we expect someone to deliver information clearly before the court if he cannot even understand the language spoken by the judge and prosecutor.

In addition to the lack of a translator, Jeff’s right to a free trial was further violated by his inability to have access to adequate legal consul. Jeff was arrested on August 2, 2003 yet he received first legal assistance on January 6, 2004. The absence of legal counsel for approximately four months in Jeff’s case is violation of Article 54 of Indonesian Criminal Procedure Code which states that the suspect or accused has the right to obtain legal assistance in the form of legal counsels during the period of and at every stage of examination against him. In most cases the presence of legal counsels may minimize the potential violation of the suspect or accused rights. At the very least , presence of legal counsels can help the suspect or accused who has no legal background to understand legal process they face and also help them in preparing their defense.

Jeff has no education and knowledge of the complexities of the Indonesian legal system. He had to try and self-educate himself as to the legal processes and procedures used by the Indonesian judicial system. Initially, Jeff only was charged of drug ownership under Article 78 paragraph (1) of Narcotics Law but later police decided to add a more serious charge, that being drug dealing under Article 82 of Narcotics Law.

Unhappy Ending?

As could be expected by the numerous rights violations during Jeff’s trial, this case does not have a happy ending. Central Jakarta District Court returned a guilty verdict, this verdict was upheld after appeals to the DKI Jakarta High Court and Supreme Court. Jeff has been sentenced to death. His case begun with discrimination, was plagued by unfair trial violations, and is about to end with infringements of his very basic rights. Jeff’s name is not on the list of executions to be carried out in 2010 however he is still in his cell on the death row without any news as to when his execution will take place. That is up to the Attorney General’s Office (AGO).

It is strongly disappointing that Indonesia still employs capital punishment. From a human rights perspective, the death penalty is a violation of one’s right to life which is the most basic right of a human being. International law expert and Professor Emeritus at Tel Aviv University Yoram Dinstein once pointed out ‘if there were no right to life, there would be no point in the other human rights’.

Arguments of those who support death penalty claim that the death penalty is an effective deterrent to potential criminals. However no evidence shown that there is correlation between implementation of death penalty and decreasing drug crime numbers. It is also undeniable that the judicial system is vulnerable to human error. Therefore, is it not too risky to decide the continuance of someone else’s life on such vulnerable system? Irrevocability of death penalty is another reason to against it. There is no way to compensate a victim.

Moreover, imposing death penalty is not a good education for society. It teaches society to yearn for revenge instead of forgiveness. Surely imposing death penalty is not the only way to prevent crime. There are number of ways to do it, and they are the obligations of law enforcement officials. Sentencing someone to death in the name of crime to prevent crime is a gruesome shortcut.

What Next?

On paper, Jeff has exhausted all of his available legal remedies. He appealed to High Court and Supreme Court and also filed final review appeal (peninjauan kembali) to the Supreme Court. However, LBH Masyarakat is not going to give up. LBH Masyarakat is currently conducting several strategies for Jeff, including meeting with the National Human Rights Commission (Komnas HAM) and conducting expert examinations with and human rights experts such as Ms. Asmin Fransiska, Mr. Ori Rahman, and Mr. Eddy O.S Hiariej.

LBH Masyarakat is researching the possibility to file a second final review appeal for this case even though such legal remedy is not recognized by law. In practice there are some cases which indicate that it is possible to file second final review appeal. The possibility is not likely but for saving one’s life it is worth to try.

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this article was written for CAVEAT – Vol 12 – II 2010, a publication of LBH Masyarakat.

An Open Letter to Chief of Indonesian National Police

General of Police Bambang Hendarso Danuri
Chief of Indonesian National Police
Jl. Trunojoyo No. 3
South Jakarta
INDONESIA

Tel: +62 21 721 8555, +62 21 721 8012
Fax: +62 21 720 7277
Email: polri@polri.go.id

CC: United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mr. Martin Scheinin, President Susilo Bambang Yudhoyono

Dear Sir, 

INDONESIA: Police act disproportionately in war on terror – unarmed suspects shot dead

According to your statement and reports, three alleged terrorists were shot to death on May 12, 2010 in Cawang, Jakarta by police officers from the special detachment for anti-terrorism (Densus 88). Two others were killed in a raid in the Cikampek sub-district, East Jakarta by the same unit on the same day. According to eyewitness reports the police opened fire against unarmed suspects in Cawang. The Asian Human Rights Commission (AHRC) is very concerned about the disproportionate us of lethal force in this operation.

AHRC strongly condemns terrorism and its impact to society. Terrorism fosters fear and insecurity in society since it indiscriminately kills innocent people. As any other crimes, terrorism cases should be impartially investigated. The special challenges that advanced terrorist activities present to society have to be countered with a professional and well trained police force. Anti-terrorist units thus have to be subject to full judicial accountability and any violations of victims or suspect’s rights have to be investigated pursued according to law.

For this very reason, the AHRC regrets the shooting that occurred in the two locations in Jakarta. The AHRC is in particular concerned about the incident in Cawaang, since the suspects were unarmed and no harmful acts were committed by them at that time of the operation. According to eyewitness reports, one of the suspects had just gotten out of a taxi and was about to meet the other two suspects when four police officers from the Densus 88 unit attempted to arrest the suspect. When he physically resisted the arrest, the police opened fire at him. The two other suspects tried to escape but were caught, beaten and were reported to have been shot to death too. Of the five persons who were killed by police in the course of the two operations on this Wednesday, only two were identified, namely as Saptono and Maulana, who are listed as most dangerous terrorists by police.
These detailed witness reports are very concerning since they indicate a disproportionate use of force beyond necessary means for an arrest and would thus present a violation of the right to life as established in the International Covenant on Civil and Political Rights.

source: kompas.com. Densus 88 officer checked the corpse of terrorist shot in Pamulang 9/03/2010

The police later explained that they had no choice but to shoot the suspects since the suspects “resisted and did not want to be arrested, we did not want to take any risk of officers being killed” (Brigadier General, Zainuri Lubis). However, it is neither clear whether the suspects tried to commit any harmful counter attacks that would have left the police no other choice than to fire deadly shots, nor is any information provided by the police or other evidence available as to whether the suspects threatened public security in an immediate way at the time of arrest. The independent witness present at the shooting location confirmed that the suspects tried to escape and that the only form of resistance to the arrest was to beat the police officers with his arms. The police responded by hitting the suspect with a gun resulting in bleeding. No report suggests that a necessity to fire shots or to fire deadly shots would have arisen.

Terrorism has rightly been condemned by the international community for having cost numerous innocent civilian lives and several countries are trying to counter such inhuman activities including Indonesia. However, protecting public security does not justify the violation of the rights of others as international jurisprudence has extensively ruled. Means used by states to prevent terrorism have to be in accordance with human rights principles and limited to only necessary harm against suspects. State responses to terrorism have to be conducted with full respect to the terrorists’ rights as a human being.

The police, in exercising its duties to prevent all crimes including terrorism, has to apply the concepts of ‘necessity’ and ‘proportionality’ as enshrined in Article 3 United Nations Code of Conduct for Law Enforcement Officials. The shooting of three terrorists in Cawang shows that the police often neglect these principles and tend to commit rash measures in many terrorism cases, which results in the violation of basic rights. In March 2010 alone, five alleged terrorists were shot to death in Aceh, without any reported resistance to the arrest.

In AHRC-STM-047-2010 the AHRC reported about the death of innocent civilians. Kamarrudin and his 14 year-old son, Suheri, were mistakenly suspected as members of a terrorist group based in Aceh. Both victims were shot at by police, which later caused Kamarrudin’s death and severe injuries of his son. Several other killings in counter-terrorist operations have been reported from Aceh. (see AHRC-UAC-058-2010)

Several laws and rules which mandate police to respect human rights and act professionally have been enacted in Indonesia, including Law No. 2/2002: Indonesian National Police, Police Regulation No. 8/2009: Implementation of Human Rights Principles and Standards in the Discharge of Duties of the Indonesian National Police, as well as the Code of Conduct for Indonesian National Police Officers. Despite this legislation and several institutional reforms the repeated incidents of police killings show a serious lack of implementation of these standards. Accountability for misconduct is the key to address human rights violations by state authorities, in particular the police.

The AHRC urges you to ensure that an independent investigation regarding the killings in anti-terrorist operations that occurred on May 12, 2010 in Jakarta is conducted. The killings of civilians and suspects in Aceh in February and March 2010 have to be investigated by an impartial unit as well. The AHRC also calls for a reform and professionalization of the police, in particular its anti-terrorist unit. A committed implementation of the new police regulations through internal disciplinary and criminal procedures is necessary to ensure police accountability for the protection of human rights.
Yours faithfully,
 
Basil Fernando
Director
Asian Human Rights Commission, Hong Kong

(Article 4 letter (a) Indonesian National Police Code of Conduct)

Introduction

The past year has been a rocky one for the Indonesian National Police Force notably due the very highly publicized Corruption Eradication Commissions (KPK) scandal. The KPK scandal showed, in a very public light the practice of case fabrication or ‘framing’ by police. However, framing cases are not limited to the wealthy and powerful; in fact most framing victims are not wealthy at all and thus are even less able to protect themselves from such allegations.

One such example, a case that has sparked public discussion as well as the attention of the Judicial Mafia Eradication Task Force (Satgas Mafia Hukum) is the case of Susandi Sukatma, known as ‘Aan’. In December 2009 Aan was charged with drug possession (in the form of a crushed ecstasy pill) that the police allegedly found hidden in his wallet. Aan denied the charge and pleaded not guilty; he accused the police force of framing him to further an already ongoing investigation. According to Aan, he was framed as a result of his refusal of police officer’s requests to act as a witness and give false testimony in a case of illegal firearms possession allegedly committed by his former employer. In order to force him to comply they arrested Aan on charges of drug possession. In addition to his framing, Aan also stated that he was tortured by police. Aan later filed a complaint with the Polri’s Division of Profession and Security (Propam) accusing the police force of framing and torture.

Aan’s story is not an isolated incident. Another police framing victim, Chaerul Saleh has also come forward with complaints regarding the fabricating of cases by police. Saleh works as a scavenger and lives in Jakarta. He has told of being forced by police to admit that he was the owner of 1.68 grams of cannabis allegedly found by police in his house. The investigation brief states that Saleh was arrested by three police officers and later confessed however Saleh tells a different story. Saleh has declared that he wasn’t arrested by three police as mentioned in the investigation brief, but coerced by someone called  ‘K’ to go to the police station where police forced him to admit the cannabis as his own.

Following the increasing number of complaints of framing, the National Head of Police Bambang Hendarso Danuri promised that he will meet with Head Criminal Investigators. He stated that framing is one of the main concerns of the National Police Force and promised to conduct an investigation into the claims as soon as possible. At the time of print this meeting has yet to be announced.

Novel Ali, a member of the National Police Commission has pointed out that although the issue of case fabrication has attracted a lot of media attention of late it is not necessarily a recent dilemma. Several times, LBH Masyarakat has been asked to provide legal aid for victims of police framing, most of which are concerning fabricated narcotics cases. The practice of using narcotics charges to frame innocent citizens has been admitted to by former Head of Propam, Oegroseno. The practice is allegedly prompted by the unofficial-yet-widely-known ‘war on drugs’ policy which includes a target number of drugs related arrests per month by each Narcotics Division in each police station. These kind of ‘arrest quotas’ put pressure on local police stations that cause some to frame innocent citizens to meet their monthly quota.

Even worse, the policy is supported by the existence of a problematic provision in Indonesian Law. Law No. 35 2009 on Narcotics, Article 112 states that someone can be sentenced for 4-12 years imprisonment for his or her unintentional possession of narcotics. Under this provision, there is no need for police to prove whether someone is the owner of the narcotics in their possession or even whether the person intentionally possesses said narcotics. The only proof that police need is that someone has narcotics in their possession. Who actually placed the narcotics under their possession –whether it was third party or even maybe the police officer himself – is not an issue under this provision.

Framing, the non-punishable human rights violation

The aforementioned Indonesian Police Code of Conduct obliges all police members to declare ‘what is true as true and what is wrong as wrong’. Unfortunately, framing by police is not categorized as a crime in Indonesia. The only specific prohibition on framing is found in Article 6 letter (k) of Government Regulation No. 2 Year 2003. The Discipline Rule for Members of Indonesian National Police states, ‘in exercising their duties, the members of the Indonesian National Police are prohibited to manipulate cases’. As this is regulated in Government Regulation level, such prohibition may not be equipped with criminal provisions to punish wrongdoers. This leaves framing as an essentially non-punishable act.

According to Article 9 of the Government Regulation, violations of its provisions by any Polri’s member will, at worst result in the offending officer being moved to a ‘special spot’ on authority of a superior officer. This punishment is permissible for maximum 21 days and in some conditions may be extended a further seven days. Framing, therefore, is only deemed as a violation of the police code of conduct and will be processed by an internal monitoring mechanism. Such an investigation is unlikely to be transparent and cannot be held accountable. For example in Aan’s case even though Propam has announced its result of an investigation which found that three Maluku police officers framed Aan, no significant disciplinary steps have been taken. Even if the police officers involved are subjected to punishment, Aan will only be able to see the violators of his rights subjected to mild disciplinary punishment. Due to the absence of a criminal provision for framing, the best case scenario if the offending officers are brought to criminal trial is that they will be charged and punished for forging a police brief. The use of the forgery provision to punish framing degrades the severity of framing, effectively replacing it with a different charge entirely.

As one of the State’s representatives police are obliged to protect and respect human rights. The obligation to protect is reflected in its’ duty to ensure every human rights violation is processed according to law, while the obligation to respect should be reflected by not committing human rights violations such as torture and arbitrary arrest or detention. Some police authorities such as the power to arrest and detain someone, however, are essentially human rights infringement. It is true that these powers held by police are permissible so as they can carry out their function to investigate and solve crimes; however, essentially they are depriving somebody’s rights. Therefore, it is reasonable to expect that all of such powers have to be conducted in strictly, lawful, and careful manner.

As enshrined in article 9 of the International Covenant on Civil and Political Rights (ICCPR), in human rights framework an arrest or a detention may be categorized as a permissible limitation on the right to liberty and security if it meets two criteria: first that the arrest and detention are conducted in a lawful manner and second, they are conducted on such ground. While the former criteria is related to procedural and formal issues such as providing a warrant to the suspects and giving a prompt notification to the suspect of the reasons why he or she is arrested or detained, the latter one covers the actual reasons of why he or she is arrested or detained. Specifically, is the arrest or detention reasonable? If someone is arrested and detained for crimes they have not committed but as a result of fabricated charges and simply because the police want to or are able do so in order to reach arrest quotas, then the arrest and detention are not conducted in accordance to human rights principle.

Not only a violation to a persons right to liberty and security, almost all framing cases also violate ones right to freedom from torture. An innocent person is unlikely to confess to crimes that they did not commit. Therefore, it is likely that in a framing case police will manipulate and coerce the witnesses and force the suspect to admit to crimes fabricated by police. This is done a number of ways, including torture. David, Kemat, and Maman Sugianto –who were framed by police for the murder case of Asrori in 2008 and even initially convicted as guilty by trial- alleged that they were tortured both physically and mentally by the police. The men eventually confessed to the murder that they did not commit. Kemat states that he was beaten and threatened at gun point before he finally decided to confess. In Aan’s case, even though the beating was committed by a civilian (non stage agents), still it meets the definition of torture according to article 1 of Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) as it was committed with the consent of three police officers who were also at the location.

Another human rights issue pertinent to the practice of framing is the issue of adequate compensation for victims. Kemat, David, and Maman Sugianto were eventually convicted not guilty and acquitted by a Supreme Court’s judicial review on the back of an intense media storm. The trio also received a police apology and a small amount of compensation. Kemat and David received 20 million Rupiah (US$ 2200) while Maman Sugianto received 10 million Rupiah (US$ 1100). The amount of compensation they received is very little in comparison to the torture, defamation and humiliation they suffered at the hands of the police. Fortunately they are the ‘lucky’ ones. Kemat, David and Maman Sugianto were able to walk free, unlike most framing victims who tend to end up behind bars.

Ineffective monitoring mechanism

As with any other kind of police misconduct, the burgeoning practice of framing is supported by the weakness of internal monitoring mechanisms. In Indonesia, the authority to conduct internal police investigations are granted to the General Oversight Inspectorate (Irwasum) and Propam. Complaints of police misconduct should be submitted either to Irwasum or Propram. Unfortunately, as reported by Amnesty International, those who lodged complaints of police misconduct often faced difficulties. Additionally, Propram has proved to be inadequate in terms of investigating the complaints independently, impartially, and promptly. An esprit de corps issue is raised as to whether these problems are unavoidable given that Propram itself is a part of the police institution.

The poor internal monitoring mechanism is aggravated by the fact that there is no external mechanism powerful enough to conduct effective monitoring of the police force. The National Police Commission (Kompolnas) is often misinterpreted as a body which has the authority and duty to conduct the external oversight of police. However, according Article 3 of Government Regulation No. 17, 2005 regarding the National Police Commission, the commission only has two functions: to assist the President in setting the policy direction for the National Police Institution and to provide advice to the President about possible reform actions within the institution.

National Human Rights Commission (Komnas HAM) and the National Ombudsman may be the alternatives but still, their powers are very limited. In human rights violations cases which are not categorized as ‘gross violations on human rights’, the best thing that can be done by Komnas HAM is to give recommendations. Similarly, although according to Law No. 37, 2008 the National Ombudsman has the authority to investigate and to summon people while it is exercising its’ duty to oversee the implementation of public services (including service provided by police), the investigation will also only result recommendations, which are most likely to be ignored by the supervisor of the accused party as the disobedience to the Ombudsman’s recommendations won’t bring any serious legal consequences.

Based on the Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Officials which was adopted in 1989 by the United Nations Economic and Social Council, an effective mechanism shall be established to ensure the internal discipline and external control as well as the supervision of law enforcement officials. According to the code important principles and prerequisites for the humane performance of law institutions are, ‘that every law enforcement agency, in fulfilment of the first premise of every profession, should be held to the duty of disciplining itself in complete conformity with the principles and standards herein provided and that the actions of law enforcement officials should be responsive to public scrutiny, whether exercised by a review board, a ministry, a procuracy, the judiciary, an ombudsman, a citizens’ committee or any combination thereof, or any other reviewing agency’. According to this belief an effective external mechanism to conduct monitoring over police institutions is necessary to ensure a fair and just police force. Establishing a new agency equipped with the proper power and authority whose main task is to monitor police conduct may be one option, but it will be a very costly alternative. The most realistic step to be taken is to add greater powers and authority to existing agencies Kompolnas, Komnas HAM, or Ombudsman.

A new frame for framing?

When discussing the practice framing, people may argue that the police are human and can make mistakes in terms of exercising their powers and authority. Police may claim to have tried to do their best but, as humans, errors are sometimes are unavoidable. If this is really the case –that they have tried to exercise their duties and authorities carefully but later the suspect they arrested, detained, and investigated turns out to be innocent then it’s not framing thus it doesn’t have to be criminalized. There is a significant difference between framing and the failure of police to do their job well. Framing is not only about police’s failure to arrest the real perpetrators of real crimes; it is about arresting innocent people to be processed by the law intentionally and fabricating evidence. The intention to penalize innocent people results in the violation of their basic rights. This is the reason why framing is should not be categorized as a mere violation of the police code of conduct but rather as a serious crime. Moreover, framing should be widely recognized as a human rights violation of which perpetrators should be tried and made to serve an adequate punishment.

However, categorizing framing as punishable crime is only half the battle. A transparent, external and authoritative body is needed to which victims of framing can report their grievances. Facts and experience have shown us that in most cases, investigation of crimes involving police officers won’t be conducted promptly and independently by internal bodies. Thus, widespread police reform is needed.

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This article was written for CAVEAT, a publication of LBH Masyarakat, Vol. 10/II/March 2010 To download the full version of CAVEAT, please visit http://lbhmasyarakat.org/detail_publication.php?id_title=57

The ban has sparked controversy amongst the human rights activists, academician, and those who concern in democracy. Banned author, Darmawan, filed a complaint with the Constitutional Court at the beginning of February this year, asking the Court to declare the legislative authority which enabled the AGO to ban printed materials as unconstitutional and invalid.

Book-banning in Indonesia was legalized during the Soekarno regime under the Law No. 4/PNPS/1963 on Printed Materials Pacification which grants the AGO the authority to ban the circulation of printed materials believed to have the potential to disrupt public order. Under article 1 paragraph (3) of the law, anyone who keeps, owns, delivers, distributes, sticks, sells, or re-prints banned printed materials shall be punished by a maximum light imprisonment (kurungan) of one year or a maximum fine of fifteen thousand rupiahs. The AGO’s authority to ban printed materials was later restated in article 27 paragraph (3)(c) of AGO Law No. 5/1991. When the AGO Law was revised in 2004, this power was preserved.

This power to ban books raises the issues of freedom of expression and freedom of information. Those who criticize the AGO’s authority believe that banning books violates the author’s right to freedom of expression and information. On the contrary, those who support the AGO’s authority argue that human rights, including freedom of expression and information, are subject to limitation.  The power to impose such limitations on human rights is proscribed under article 28J paragraph (2) of the Indonesian Constitution.

The International Covenant on Civil and Political Rights (ICCPR), a key covenant under the International Bill of Rights, also provides that the exercise of the right to freedom of expression and information are subject to limitation (at Article 19 paragraph (3)). Specifically, limitation of these rights in the name of ‘public order’ is permitted.  Notwithstanding this, the question remains, how should we interpret such vague clause in practice?

Let us examine the international human rights standard.

Point 22 of Siracusa Principles defines public order as ‘sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’ and that, ‘respect for human rights is part of public order’. Human rights expert, leading scholar on international law and UN Special Rapporteur on Torture, Manfred Nowak, admitted that ‘public order’ (and also any other interests such as ‘national security’ etc.) is intentionally defined vaguely so that states are basically free to interpret the term as they wish, so long as the interpretation meets the principle of proportionality: is the limitation present a suitable means of achieving a purpose? Does it represent the most lenient means of achieving said purpose? Does it observe moderation? Nowak believes that while states have the right to freely interpret such vague clauses, there are still principles that should guide their interpretation.

What about in Indonesia’s context?

It is stated in the explanation of article 1 of Printed Materials Pacification Law that the authority to decide whether printed materials have the potential to disrupt public order is granted solely to the AGO. It is the right of AGO to judge, on its own subjective opinion, what ‘public order’ means.

This subjective power explains an interesting phenomenon in Indonesia; the ‘theme’ of banned books changes according to the ideology and agenda of the ruling party. Under the Soekarno regime, books which disseminated liberalism were banned as they were deemed to be disruptive to Indonesia’s goal to reach revolution. In contrast, under Soeharto and his New Order (even up to post reformation era), banned books were those which were deemed to be left wing such as Moestopo’s ‘Sosialismus a la Indonesia’, Kim Byong Sik’s ‘Modern Korea’  (both were banned in 1971).  Even books which appeared to support the Indonesian Communist Party (PKI) were banned.  This happened in 2007 when many history books were banned simply because they failed to mention that the 30 September 1965 Movement –the abduction and assassination of six Indonesian Army generals and an aide de-camp of one of the targets, General Nasution- was conducted by PKI.  In light of this, we can not naively believe that the books are banned solely to maintain public order.

To the extent that that freedom of expression and information are subject to limitation, we must ask: Is Indonesia’s current mechanism on book banning compatible with the principles of human rights? Are the limitations imposed upon the freedom of expression and information a ‘suitable means of achieving a purpose?’ and ‘are they the most lenient means of achieving said purpose?’

There are at least two issues emerging from these questions.

First, as states are granted the privilege of defining ‘public order’, they should also define specific criteria and set a threshold for what is deemed to disrupt public order.  These criteria could then be objectively applied to determine whether a book has the potential to disrupt public order and therefore, should be banned.   If proportionate limitations are placed upon freedom of expression, and a book breaches this limitation, banning such a book is arguably not a violation of human rights. For example, if a book advocates racial hatred towards a specific ethnic group or contains propaganda on war – and objectively breaches reasonable criteria for what is deemed to disrupt public order, it may be reasonable to ban such book.

Establishing a set of criteria or a threshold for what has the potential to disrupt public order is alone, an inadequate limitation on the power to ban books.   The AGO should be obligated to provide reasons for their determination.   Further, there should be avenue for appeal of such determinations. As pointed out by John Roosa, in most democratic polities that allow for the banning of books, the decision to ban a book is done through the court system. A proper system of checks and balances is critical to moderate the exercise a power to limit freedom of expression and information. The imposition of checks, balances and controls meets the criteria enshrined in point 24 of the Siracusa Principles which provides that ‘state organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies.’ 

The current power to ban books in Indonesia on the grounds of maintaining ‘public order’ (under ‘Name of Law) is little more than a facade for ‘preservation of the ruling party’s power.’  While there is a place for political agendas and power preservation in a democratic society, these factors cannot be confused with maintaining public order and do not justify a limitation of the freedom of expression and information.

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this article was written for CAVEAT, a publication of LBH Masyarakat, Vol. 09/II February 2010. To download the full version of CAVEAT please visit http://lbhmasyarakat.org/detail_publication.php?id_title=56

This raises the question: What legal avenue can be pursued to protect their right to life, a fundamental human right that applies to all human beings regardless of nationality?

Law No. 24/2003 regarding the Constitutional Court clearly states that the complainant in constitutional review cases must be an Indonesian citizen. If the rights of a foreign citizen living in Indonesia are violated by a prevailing law, he or she cannot request the Constitutional Court to declare the law unconstitutional and legally annulled.

It is often deemed that a state and its constitution can only provide protection to citizens, as they are party to the social contract. Although it is true that an ideal and modern constitution must guarantee protection of the rights of a state’s citizens, this does not mean that the constitution cannot also protect third parties of the social contract, such as foreign citizens who live within the territory of the state.

Many states in the world provide protection not only to their own citizens but also to foreigners under their constitutions. This can be either implicit, as in South Africa and Croatia, or explicit, as in many former Soviet states such as Georgia, the Czech Republic and Russia.

By using grammatical and historical interpretations, we can actually conclude that the amended Indonesian Constitution implicitly provides protection for foreign citizens. Instead of using “every citizen” as in article 28D paragraph (3) of the Constitution, regarding the right to take part in government, other human rights provisions in the Constitution use the term “everyone.”

Historically, intense and thorough discussions never took place as to who was actually protected under human rights provisions in the Constitution. During discussions on the amendment of the Constitution, however, some political parties proposed to use the phrase “every citizen” in all human rights provisions. This proposal was later dropped, and the Indonesian People’s Consultative Assembly deliberately chose to use “everyone” – which again shows that the Constitution was intended to protect the rights of every individual within Indonesia’s territory.

Given that the Constitution provides protection for the rights of foreign citizens, it is logical that the laws and regulations under the Constitution would provide legal avenues for them to pursue when their rights are violated. The article that restricts foreigners from filing complaints with the Constitutional Court therefore violates their right to be recognized as persons before the law.

Further, it also meets the criteria of “discrimination” as determined by the International Convention on the Elimination of All Forms of Racial Discrimination, since it excludes persons from filing a constitutional review solely on the basis of their nationality.

This issue brings up the question of a state’s sovereignty, and of whether persons should be allowed to challenge the policy of a state that is not theirs. This concern is understandable, as a decision by the Constitutional Court applies not only to the complainant but to everyone in Indonesia’s territory.

For this reason it is important to place some limitations if foreign citizens are permitted to file complaints with the Constitutional Court. First, they should be allowed to challenge a law only if they believe it has infringed on their rights guaranteed by the Constitution. Foreign citizens should not be allowed to contest a law that is irrelevant to their rights.

Second, complaints should be filed only by individuals, not legal entities, as human rights are inherent to human beings. Another important aspect that the Constitutional Court must bear in mind in examining a case filed by a foreign citizen is that the national interest should be prioritized. It is important to protect the rights of foreign citizens in the context of the universal value of human rights, but this should not be upheld if it harms the national interest, as the country’s citizens are first party to the social contract.

There are some possible ways Indonesia could accommodate foreigners’ right to file a complaint for constitutional review. The first is by revising the Constitutional Court Law. This may take a long period of time, however. While waiting for Parliament to revise the law, the Constitutional Court actually could set aside the relevant article of the law if a foreigner filed a complaint. The Constitutional Court could then decide whether it wants to declare the article unconstitutional, or conditionally unconstitutional.

One thing is sure: laws and regulations should never restrict a person’s human rights, as these rights apply to the worst of us as well as to the best.

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(this article was originally published by UPI Asia Online in 4 February 2010. http://www.upiasia.com/Human_Rights/2010/02/04/protecting_foreigners_rights_in_indonesia/7122/)

Rivalry between the two law enforcement institutions surfaced in July 2009, when the commission began investigating the national police’s chief detective, Commissioner General Susno Duaji, for allegedly using his power to force Bank Century to return a large amount of deposited funds to their owner unlawfully. In return, it is alleged, Duaji received 10 billion rupiah (US$1.06 million).

The commission’s investigation of Duaji is widely believed to have triggered the police investigation into the alleged abuse of power by the two commissioners. This view is strengthened by the fact that the police charge was inconsistent and apparently fabricated – the police first said that the commissioners were involved in bribery but later said it was abuse of power.

This lack of professionalism is not new among Indonesia’s police. In this case the police reprisal against the anti-corruption commission was on the national level, but such behavior also prevails at the grassroots level.

For example, a case came to light recently in which an underage girl was raped by a 40-year-old man. Her family filed a complaint with the Jakarta police, but no proper inquiry was conducted. Worse, after her family found the perpetrator and brought him to the police station, instead of detaining him the police released him, citing lack of evidence.

In cases such as torture and other police abuses, victims are often reluctant to complain to the police because they are asked to provide witnesses and other evidence. As police torture and abuses take place in a closed setting, it is hard to fulfill such requirements.

The only witnesses in a torture case are the police officers themselves. It would be rare for an officer to testify against his colleagues and support the victim’s complaint.

The police are guilty of negligence in some cases, and abuse of power in others, as is evident from the different handling of the cases involving the commissioners and the young rape victim. While the police acted swiftly to investigate the commissioners, they neglected their duty concerning the young girl.

These are common problems reflecting the lack of professionalism within Indonesia’s police force. The police often fail in their duty. When they are supposed to respond quickly, they are often overly cautious. And when conditions require that they react with care, rash measures are taken.

Professionalism in the police force is important, as it is closely related to human rights enforcement. It is a police obligation to protect human rights. An unprofessional police force can impede people’s access to justice, as it is the only institution with the authority to handle almost all criminal cases.

Furthermore, instead of implementing their slogan “to serve and protect,” Indonesia’s police have caused distrust in people about law enforcement. As a famous cynical saying goes, “Complaining to the police about your lost chicken will only cause you to lose your goat.” This describes the state of policing in Indonesia.

Distrust toward the police can lead to social unrest if people start taking the law into their own hands, as was seen recently in Pelalawan, Pekanbaru when angry residents attacked a red light district, smashing property and setting fire to buildings.

If the police could so hastily launch an investigation into the two commissioners who threatened them, they should be able to quickly launch their own internal reforms, as misconduct within the force in the long term is a much bigger threat to the cause of law enforcement they are pledged to protect.

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this article was published by UPI Asia Online, please visit http://www.upiasia.com/Human_Rights/2009/10/07/double_standards_of_indonesian_police/6551/