Settling human rights abuses crucial to RI's transition<\/p>\n
Eddy O.S. Hiariej, Parliament Watch, Yogyakarta<\/p>\n
The surging demand for the enforcement of human rights in the
\nwake of the New Order's downfall is an urgent issue; but not one
\nof the massive breaches of human rights has been settled so far.
\nThis situation is highly unfavorable to Indonesia's global
\nposition. Respect for human rights has significant political
\nimplications for the achievement of national goals at the
\ninternational level, particularly in efforts to restore the
\nnation's credibility.<\/p>\n
However, resolving a number of severe human rights violations
\nin the past has proved to be very complex, especially amid the
\nshortcomings in the legal system. Improving conditions and
\npolicies for the promotion and protection of human rights hinges
\non the responsibility of the state as well as the active role of
\nprivate institutions.<\/p>\n
Two problems related to the criminal court system and the
\nlegal instruments need serious attention. The main weakness lies
\nin the dichotomy between civil and military courts, whose
\ncompetence is based on a person committing an act instead of the
\ntype of act. This raises doubts of the capacity of the courts to
\nthoroughly settle human rights violation cases of the previous
\nera, notably those involving the military -- individually or
\ninstitutionally.<\/p>\n
Past military involvement in public administration led to
\nabuse of power, politics of violence and human rights violations.
\nUnder existing rules any member of the military charged with such
\nviolations must be tried by a military tribunal.<\/p>\n
The military court, with its competence based on the
\nperpetrator rather than the act committed, has proven to be a
\nvery effective mechanism for the enforcement of hierarchical
\nobedience and military discipline.<\/p>\n
Yet this military court mechanism has also turned out to be
\nvery effective in preserving impunity for criminal acts (like
\nmurder, torture and abduction) and other grave human rights
\nviolations. This kind of judicial process is obviously an affront
\nto the sense of justice because wrongdoers walk away from
\npunishment.<\/p>\n
Some progress has been made since the outset of the reform
\nmovement. We now have the 1998 Decree of the People's
\nConsultative Assembly on human rights; the second amendment to
\nthe 1945 Constitution on human rights protection and the law
\nNo.26\/2000 on the human rights court.<\/p>\n
This law still has major shortcomings.<\/p>\n
First, the constitution is rendered contradictory. Although
\nthe second amendment to the 1945 Constitution includes protection
\nof human rights, articles 28 contradict the above law. Two
\ndifferent principles are followed: the constitution stipulates
\nthe principle of non-retroactivity, whereas the human rights
\njudicial law applies the principle of retroactivity. The
\ndifference indicates the lack of clarity in applying the concept
\nof transition of justice in this period of political transition.<\/p>\n
Hence it raises fears that human rights violations before the
\nlaw was passed will never be resolved.<\/p>\n
Second, the human rights judiciary law will be distorted as a
\nconsequence of the observance of the 1998 Statute of Rome which
\nacknowledges no principle of retroactivity.<\/p>\n
Third, the law only partially adopts what is termed as grave
\nviolations of human rights from the above Statute. War crimes are
\nnot mentioned, which will lead to the difficulty in unveiling
\nsevere abuses such as Aceh and East Timor.<\/p>\n
Fourth, with today's stronger legislature, the settlement of
\nmajor violations of human rights has become a political
\ncommodity. The legislature has assumed authority to determine the
\npast severe human rights violation cases that can be tried by the
\nad-hoc court. This political constellation may confuse the human
\nrights judicial mechanism which applies universally.<\/p>\n
Fifth, the human rights judicial law is not clear on the
\nboundaries of the Commission of Truth and Reconciliation and that
\nof the ad-hoc court of human rights in the settlement of gross
\nhuman rights violation cases.<\/p>\n
Sixth, in terms of criminal law, the law lacks several
\nimportant principles such as those relating to the expiry of
\ncases, the system and adoption of criminal verdicts and the
\nperiod of detention. This means protection for abuse victims, but
\non the other hand the length of detention time exceeds the limit
\nset by the general provisions stipulated in the Criminal
\nProcedural Law.<\/p>\n
Clearly, much needs to be done in addressing this law alone.<\/p>\n
(This article is based on the writer's presentation at a recent
\nhuman rights short course at the International Institute of Human
\nRights, Strasbourg, France.<\/p>",
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