Submitted by crinadmin on
[19 December 2007] - After concluding a two-week visit inspecting Indonesia's various correctional facilities, Manfred Nowak, the U.N. Special Rapporteur on Torture, expressed "extreme concern" over the juvenile judicial system.
Although Indonesia has ratified the UN Convention on the Rights of the Child, there is a marked discrepancy between such international agreements and domestic laws. Domestic laws governing the rights of children remain illusory mechanisms that are in place to appease the international community. Crucially, the child's "best interests," as specified by Article 3 of the Convention, are in effect rendered insignificant. The comparatively low age of criminal responsibility is set at eight years of age. Establishing accountability by age, rather than by emotional, mental and intellectual development, negates international regulations such as the Beijing Rules for Juvenile Justice, which clearly emphasize that criminal liability is guided by the best interests of the child. The National Commission for Child Protection (Komnas Perlindungan Anak), which monitors countries' implementation of the Convention, has repeatedly stressed its concern that the age of eight is far too low and must be raised in accordance with international standards. Disturbingly, a large number of young children are detained in correctional facilities with older children and adults, in poor conditions. This is a direct violation of both Article 37 (C) of the Convention and Article 66 (5) of Law No. 39 Year 1999 regarding Human Rights, which state that child detainees must be held separately from adult detainees, unless it is in the child's "best interest" to be held with adults. Needs ignored Detaining young children with adults who may have been convicted of serious crimes fundamentally neglects their needs, deprives them of guidance and protection vital for successful development and exposes them to a host of dangerous influences. Consequently, children who are placed in juvenile detention centers are at greater risk of corporal punishment and ill-treatment. The multitude of inconsistencies between international obligations and the flawed implementation of domestic laws is clearly illustrated by the case of an eight-year-old boy who was allegedly arbitrarily detained in March 2006. Muhamad Azwar, known as Raju, was found guilty of assaulting his schoolmate in North Sumatra. According to Law No 3 Year 1997 regarding the Juvenile Court, children between the ages of 8 and 18 can be taken to court for prosecution. Nevertheless, Raju's age was disputed at the time, whereby the court selected a different date of birth from that given by his family ID card. Furthermore, Raju was detained in the Detention Center of Pangkalan Brandan, Langkat, North Sumatra from Jan. 19 Feb. 2, 2006, which clearly disregards both Article 37 (b) of the Convention and Article 66 (4) of Law No. 39 Year 1999 regarding Human Rights, which both state that the arrest, detention or imprisonment of a child shall be used only as "a measure of last resort" and for the shortest suitable period of time. Additionally, the judge's decision violated the Juvenile Court Law which stipulates that any child below eight years of age prosecuted for a crime must be returned to his or her parents or the Social Affairs Ministry. Raju was denied legal counsel during the trial, despite this being mandatory under law and guaranteed under Article 37 (d) of the Convention. Stigmatised Bringing such a young child before a court exerts substantial psychological pressure on the child and may lead to stigmatisation from the local community. This would have been exacerbated by the substantial amount of media coverage Raju's case received. Similarly, standards for other vulnerable groups in detention are not consistent with international norms. Female detainees are frequently attended and supervised by male officers in police custody and prisons, which contravenes the Standard Minimum Rules for the Treatment of Prisoners, jeopardizes the safety of women detainees and makes them susceptible to sexual assault and violence. Although care and treatment for mothers is now on the whole satisfactory, a case was reported whereby a mother was placed in detention only seven days after giving birth, and was allowed to see her baby only once a week. This clearly defies Article 10 of the International Covenant on Economic, Social and Cultural Rights, which Indonesia is party to, which specifies that "protection should be accorded to mothers during a reasonable period before and after childbirth." In spite of enacting several national laws, including the Juvenile Court Law, the Human Rights Law and establishing the National Commission for Child Protection to safeguard children's rights, the Indonesian state has essentially failed to protect the most vulnerable groups in society while perpetuating a semblance of legality. It is not enough that domestic laws are consistent with international demands; they must be fully implemented. Obstacles to implementation include the psyche of government officials connected with the juvenile justice system, prevalent corruption and a complete disregard for the law. Measures must be taken to overcome these barriers to ensure the laws do not remain a façade for protection. (Philip Setunga, the author, is a staff member of the Asian Human Rights Commission in Hong Kong responsible for the organisation's research on Indonesia. He has a doctorate in sociology.)