Exploring readiness for the Ad Hoc human rights court<\/p>\n
Agung Yudhawiranata
\nInstitute for Policy
\nResearch and Advocacy (ELSAM)
\nJakarta<\/p>\n
The ad hoc human rights court is now official. Presidential
\ndecree no. 96\/2001 mandates the establishment of the court to try
\ncharges of human rights violations in the Tanjung Priok shootings
\nand post-referendum East Timor cases. The establishment of the ad
\nhoc court reinforces the implementation of Act No. 26\/2000 (the
\ninitial basis for the court's creation).<\/p>\n
The ad hoc court has at least two essential implications for
\nthe promotion and protection of human rights in Indonesia. First,
\nwe now have an opportunity to try past human rights violations --
\na crucial stepping stone in reforming the legal system.<\/p>\n
Second, the court, which will first address the human rights
\nviolations in East Timor that followed the self determination
\nreferendum in September 1999, will be the first plank of the
\ngovernment's platform on the protection and promotion of human
\nrights.<\/p>\n
There are at least four issues that deserve careful
\nconsideration in terms of their legal and political impacts:<\/p>\n
First is the possibility that evidence of gross violations of
\nhuman rights may have been lost or misplaced, given the foot-
\ndragging in the establishment of the ad hoc court.<\/p>\n
The results of investigations by the independent Commission of
\nInquiry into Human Rights Violations in East Timor were delivered
\nto the Attorney General last year.<\/p>\n
Moreover, two presidential decrees were needed to establish
\nthe ad hoc court. These were issued last year: Decree no. 31 on
\nthe establishment of a human rights court, to be located in the
\ndistrict courts of Central Jakarta, Surabaya, Medan and Makassar,
\nand decree no. 96\/2001. The latter replaced decree no. 53 as the
\ngovernment was of the view that it gave the ad hoc court in the
\nCentral Jakarta district court too broad a jurisdiction regarding
\ncases in East Timor (after the 1999 referendum) and Tanjung
\nPriok.<\/p>\n
In relation to East Timor, the Court's jurisdiction was
\nrestricted to incidents in the three areas of Liquica, Dili and
\nSuai, and limited to cases occurring between April 1999 and
\nSeptember 1999. These restrictions have greatly limited the
\nnumber of cases and perpetrators subject to prosecution.<\/p>\n
The second issue is the selection of judges. Although judges
\nhave already been appointed, on the basis of Presidential Decree
\nno.6\/2002, their recruitment was not conducted in a transparent
\nway, and provided no room for public participation.<\/p>\n
The criteria for candidates -- consisting of professional and
\nnon-professional judges and academics -- remain unclear, and
\ntheir backgrounds were not considered in the assessment process.
\nMost of the candidates, particularly career judges, lack
\nsufficient track-records in dealing with human rights cases,
\nwhile a few even have questionable records in such cases.<\/p>\n
There is also a lack of balance in the composition of the non
\ncareer judges selected; among those chosen are four judges from
\nthe one university, namely, the Syarif Hidayatullah Institute of
\nIslamic Studies in Jakarta.<\/p>\n
There has not been an adequate public explanation of this
\nmatter, only an informal statement from the Supreme Court to the
\neffect that the team's composition reflected the possible need
\nfor the tribunal to provide interpretations of Islamic syariah
\nlaw.<\/p>\n
The selection process was conducted in a manner that could be
\nconsidered below standard. The fit and proper test for candidates
\nby the legislature was inadequate and the required presidential
\ndecree was delayed by a month for no apparent reason.<\/p>\n
The non career judges are not known for their experience in
\neither litigation or due legal process, and view the issue of
\nhuman rights purely as an academic exercise.<\/p>\n
Meanwhile, training for the judges has not been going
\naccording to plan. A proposal to invite experts from Sweden and
\nNorway failed to eventuate.<\/p>\n
The third key issue relating to the human rights court is the
\nrecruitment of prosecutors. The selection of candidates for these
\npositions has suffered similar shortcomings to the recruitment of
\njudges.<\/p>\n
It was quite some time before the names of the prosecutors
\nwere disclosed to the public. The excuse given was that the copy
\nof the presidential decree on the appointment of the court's
\nprosecutors was delivered late to the Attorney General.<\/p>\n
The dossiers on the East Timor and Tanjung Priok cases,
\nprepared by the Attorney General, do not even touch upon the
\nissue of command responsibility ie. the liability of a superior
\nfor acts allegedly carried out by a person under his command.<\/p>\n
Moreover, of the 23 suspects initially proposed for inclusion
\nin the case files, only 18 were ultimately included, in 12 case
\nfiles. One of these people is known to have died, and three
\nothers have disappeared. This sets a dangerous precedent and is
\nan indication of the poor level of planning that went into the
\npreparation of the dossiers.<\/p>\n
There has been no official publicity given to the cases,
\nthereby limiting the degree of public input.<\/p>\n
The fourth issue relates to the preparation of necessary rules
\nand regulations. First, Law no. 26 on the human rights court, now
\nbeing used as the guideline for court procedures, does not
\nspecifically cover all issues needed to guarantee a fair trial.<\/p>\n
The Law excludes the possibility of utilizing any legal
\nprocess other than the Criminal Code.<\/p>\n
It also suffers from a number of other weaknesses. One is its
\nfailure to specify extradition arrangements needed to bring
\nwitnesses from East Timor, an important point since trials for
\ncriminal cases in Indonesia require a direct witness.<\/p>\n
The role of the Ministry of Foreign Affairs will therefore be
\ncrucial, yet it had no involvement in the establishment of the
\ncourt.<\/p>\n
Meanwhile, the Criminal Code, as an alternative basis for the
\nad hoc court, also has some basic weaknesses in terms of its
\ncapacity to deal with gross violations of human rights.<\/p>\n
The Code lacks international standards on admissible evidence,
\ntestimonies and the visum et repertum, among others.<\/p>\n
Several important regulations vital to the successful
\noperation of the court do not yet exist. These include those on
\nwitness protection and victims' compensation.<\/p>\n
These legal instruments are essential to protect both victims
\nand military personnel who act as witnesses, especially those who
\nhave to testify against their superiors.<\/p>\n
These witnesses will need legal protection to ensure their
\nphysical and professional security. The absence of regulations on
\ncompensation may discourage victims from becoming actively
\ninvolved in the trial process, especially those who act as
\nwitnesses.<\/p>\n
The absence of these supporting legal instruments and
\nmechanisms will mean an increased reliance on the capacities and
\nabilities of the court's judges.<\/p>\n
It is therefore understandable why some are saying the human
\nrights court is a waste of money, time, and energy instead of a
\nstepping stone toward the enhanced protection of people's rights
\nhere.<\/p>\n
There will be significant political, legal, and diplomatic
\nconsequences should the court fail to function as planned.<\/p>\n
If the United Nations Security Council could prove that the ad
\nhoc tribunal was unable or unwilling to carry out its
\nresponsibilities, international interference could occur through
\nthe creation of an International Human Rights Court on East
\nTimor, a possibility which so far has been considered a slap in
\nthe nation's face.<\/p>\n
In other words, however unlikely it may be, there is still a
\nchance of justice for the victims of human rights violations
\nhere, whatever the price.<\/p>",
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