Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

There appears to be no defence of “reasonable chastisement” or similar enshrined in legislation but provisions against violence and abuse in the Penal Code, the Law on Child Protection, the Law on Human Rights, the Law on Domestic Violence and the Constitution are not interpreted as prohibiting all corporal punishment. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment can be considered “reasonable” and explicit prohibition of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have authority over children.

Explicit prohibition of corporal punishment in all education settings (public and private) is necessary.

All legal provisions for judicial corporal punishment should be repealed, including under Shari’a law, and explicit prohibition of corporal punishment as a disciplinary measure should be enacted in relation to all institutions accommodating children in conflict with the law.

Explicit prohibition should also be enacted in legislation applicable to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home.

Children have limited protection from violence and ill-treatment under the Penal Code (1982), the Law on Child Protection (2002), the Law on Human Rights (1999), the Law on Domestic Violence (2004) and the Constitution (1945, amended 2002).

As at May 2008, the Penal Code was under review and a draft new Criminal Law was under discussion in Parliament.

Schools

The Law on Child Protection protects children in school from “violence and abuse from teachers, school managers, and school mates both in the school and other educational institutions” (article 54) but does not explicitly prohibit corporal punishment.

Penal system

Corporal punishment is unlawful as a sentence for crime under provisions protecting children from “inhuman punishment” in the Law on Human Rights (article 66) and the Child Protection Law (article 16), but Shari’a law has been implemented in the province of Aceh and other areas, including flogging and stoning as punishments for crime.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions, although the Constitution, the Law on Human Rights and the Law on Child Protection apply, and the Directorate General of Corrections has stated in policy the right of juvenile offenders to humane treatment. As at May 2008, a draft new Criminal Law was under discussion.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

Prevalence research

Large scale comparative research into the views and experiences of 3,322 children and 1,000 adults in 8 countries in Southeast Asia and the Pacific (Cambodia, Fiji, Hong Kong, Indonesia, Mongolia, Philippines, Republic of Korea and Viet Nam) was carried out by Save the Children in 2005. The research in Indonesia involved 813 children from urban, rural and remote areas, and 16 adults. Methods used included research diaries, drawings, body maps, attitude survey, and discussions. Physical punishments mentioned by children in Indonesia included being hit with implements, kicking, slapping, ear twisting, hair pulling, pinching, throwing object. Of those who were hit, 32.4% were hit with an implement, 23.6% slapped with the hand, 23.6% punched with the fist, and 20.4% kicked. Of those children who mentioned body parts where they were hit, 73% reported being hit on the head and neck, 75% on the limbs, 10% on the back, 15% chest and 15% stomach. (Beazley, H., S. Bessell, et al., 2006, What Children Say: Results of comparative research on the physical and emotional punishment of children in Southeast Asia and Pacific, 2005, Stockholm, Save the Children Sweden)

Save the Children UK carried out research in schools in North Maluku, surveying 541 children in two sub districts as part of a project developing non violent forms of classroom management. Children completed survey forms as follow up to classroom discussions on discipline. Nearly one quarter of the children reported having been hit by the teacher on their legs, hands, ears, cheeks and buttocks, once or more than once, the teachers using their hands, or a stick, ruler or bamboo swathe. (Save the Children UK, Indonesia, 2004, “Violence in schools: report on a survey conducted by the Save the Children Education Programme in North Maluku”, unpublished, cited in Save the Children, 2005, Discipline and punishment of children: a rights-based review of laws, attitudes and practices in East Asia and the Pacific – Save the Children Sweden Southeast Asia and the Pacific, regional submission to the UN Secretary General’s Global Study on Violence against Children, Save the Children Sweden)

A comparative study of 10,073 children aged 9-17 years across East Asia and the Pacific by UNICEF and Research International Asia (Thailand) in 2001 found that 34% of those surveyed in Indonesia reported having been beaten by their parents, and about 50% said that they found it less easy to talk to their teachers because teachers scream at them or beat them. (UNICEF, 2001, Speaking Out! Voices of Children and Adolescents in East Asia and the Pacific)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is deeply concerned that corporal punishment in the family and in schools is widespread, culturally accepted and still lawful.

“The Committee recommends that the State party:

a) amend its current legislation to prohibit corporal punishment everywhere, including in the family, schools and childcare settings;

b) carry out public education campaigns about the negative consequences of ill-treatment of children and promote positive, non-violent forms of discipline as an alternative to corporal punishment.

“… the Committee is very concerned:

e) at the high incidence of violence against children in the schools, including bullying and fighting among students, and that no specific law exists to regulate school discipline and protect children against violence and abuse in the school.”
(26 February 2004, CRC/C/15/Add.223, Concluding observations on second report, paras. 43, 44 and 61)

Committee Against Torture

“The Committee is deeply concerned that local regulations, such as the Aceh Criminal Code, adopted in 2005, introduced corporal punishment for certain new offences. The Committee is concerned that the enforcement of such provisions is under the authority of a “morality police”, the Wilayatul Hisbah, which exercises an undefined jurisdiction and whose supervision by public State institutions is unclear. Furthermore, the Committee is concerned that the necessary legal fundamental safeguards do not exist for persons detained by such officials, including the absence of a right to legal counsel, the apparent presumption of guilt, the execution of punishment in public and the use of physically abusive methods (such as flogging or caning) that contravene the Convention and national law. In addition, it is reported that the punishments meted out by this policing body have a disproportionate impact on women (arts. 2 and 16).

The State party should review all its national and local criminal legislations, especially the 2005 Aceh Criminal Code, that authorize the use of corporal punishment as criminal sanctions, with a view to abolishing them immediately, as such punishments constitute a breach of the obligations imposed by the Convention.... State institutions should supervise the actions of the Wilayatul Hisbah and ensure that fundamental legal safeguards apply to all persons who are accused of violating matters of its concern.

The State party should further ensure that a legal aid mechanism exists to guarantee that any person has an enforceable right to a lawyer and other due process guarantees, so that all suspects have the possibility of defending themselves and of lodging complaints of abusive treatment in violation of national law and the Convention.

The State party should review, through its relevant institutions, including governmental and judicial mechanisms at all levels, all local regulations in order to ensure they are in conformity with the Constitution and with ratified legal international instruments, in particular the Convention.

“While noting the State party’s intention to raise the minimum age of criminal responsibility to 12 years, the Committee is deeply concerned that it remains established at 8 years of age, that detained children are not fully segregated from adults, that a large number of children are sentenced to jail terms for minor offences and that corporal punishment is lawful and frequently used in juvenile prisons, such as in the Kutoarjo prison....

The State party should, as a matter of urgency, raise the minimum age of criminal responsibility in order to bring it into line with the generally accepted international norms on the subject and to abolish all corporal punishment of children....”

(2 July 2008, CAT/C/IDN/CO/2, Concluding observations on second report, paras. 15 and 17)