THE CHALLENGES OF IMPLEMENTING PROHIBITION OF TORTURE IN TWO LEVELS: ASEAN AND INDONESIA

Erna Dyah Kusumawati

Abstract

This Artivle will address the issue regarding prohibition of torture and its challenges at two levels: ASEAN and Indonesia. The prohibition of torture is considered to be a rule of "jus cogens" or peremptory norm as well as customary law. in addition the prohibition of torture is absolute and non-derogable. Therefore, it entails some obligations for states whether or not they ratify the CAT. States have the universal oblogations to prevent torture and inhuman degrading treatment in their juriscition under international customary law. Since many of ASEAN countries do not ratified ICCPR, the AICHR have to implement the prohibition of torture based on the customary International law. In addition, AICHR needs to monitor the national law regarding the prohibition of torture. However, the AICHRn lacks of protection mandate and might not functioning well especially when dealing with the alllegation of the prohibition of torture or other human right's allegations withun ASEAN juriscdiction . In Indonesia, the use of torture to get hte confession is widely used by the poluice. Not all the prepetrators are brought to the Court of Law and are given an equaitable sentences; although, Indonesia does have a regulation on prohibition of torture; the Criminal Code, the Law no39/1999 concerning Human Righst, and the law No.26/2000 concerning Human Righst Courts. There is lack of competence of the Human Righs COurt to hear the ciolation cases. Also, There is lack of competence of the Indonesian Commision on Human Righs to investiate cases concerning torture.

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