Activists hail draft amendment on human rights

JAKARTA (JP): The People's Consultative Assembly (MPR) was hailed on Tuesday for proposing the inclusion of a human rights chapter into the 1945 Constitution, but at the same time it received a thumbs down for rejecting a retroactive clause, which, it is feared, could discourage investigations into past crimes against humanity.

The draft of the human rights chapter, which received overwhelming support from factions in the Assembly in Tuesday's plenary session, consists of 10 articles, including one that guarantees the right to live free from torture, slavery and charges based on retroactive laws in whatever condition.

Prominent lawyer Todung Mulya Lubis said the human rights articles were comprehensive.

"Learning from the draft amendment, the articles provide protective human rights. It's better than conditional human rights provided by the current Constitution," Todung told The Jakarta Post.

"Furthermore, the draft was made after hearings with several organizations. It means the amendment was made by taking people's aspirations into account," he added.

He was concerned, however, about article 28I which provides people with protection from charges based on retroactive laws.

"The article is crucial because it will allow human rights perpetrators in the country to escape trial," he said.

He said the Criminal Code (KUHP) was not a sufficient instrument to solve human rights violations.

Todung admitted that the modern Criminal Code did not recognize the principle of retroactivity, which allows for trials of past criminal cases.

"But in cases of severe human rights violations, we may use the principle of retroactivity," said Todung.

Contacted separately, Hendardi of the Indonesian Legal Aid and Human Rights Association (PBHI) shared a similar view, saying that it could be used to protect those who were involved in human rights abuses in the past.

"I'm sure there's a certain political motive to protect the human rights perpetrators," he remarked.

He admitted, however, that at present, retroactivity was not necessarily mentioned in the Constitution and suggested the establishment of an ad hoc court to try past atrocities.

Meanwhile, Commission A members denied that human rights violations, such as those which occurred in Tanjung Priok, East Timor and Aceh, could not be tried, suggesting that the cases could still be processed based on the Criminal Code.

"We could use KUHP, since it also carries heavy punishment. The cases could also be brought to an international tribunal," Commission A deputy chairman Slamet Effendy Yusuf told reporters.

He maintained that all criminal cases, including human rights abuses, based on legal principles, could be tried through a law which took effect after the cases occurred.

He said the inclusion of the right to be free from charges based on retroactive laws was aimed at accommodating the basic principles of law.

"Even the Koran could not be used to punish people before the Holy Book was given by God to prophet Muhammad," Slamet, from the Golkar Party, said.

Another Commission A member, Patrialis Akbar, supported Slamet's opinion, saying that the cases could be still tried using KUHP.

"It now depends on the prosecutors to bring the cases to court," Patrialis, from the National Mandate Party (PAN), said.

He admitted that the clause ensuring the freedom of charges based on retroactive laws was never discussed in the Assembly's ad hoc committee prior to the Annual Session.

"The clause was only discussed in a synchronization team in several meetings at the Sheraton Bandara Hotel in July," Patrialis said.

He agreed that based on the Article 28I (1), human rights abuses could not be tried using the new Human Rights Court Law, the draft of which is being deliberated by the House of Representatives.

Legislator Joko Susilo from the Reform faction earlier said that the proposal was suggested by the Indonesian Military (TNI)/National Police faction.

"The proposal was discussed in a fierce and long debate," Joko, from PAN, said on Monday.

On June 5, the government submitted the bill on a human rights court after heavy international pressure to try human rights abuses that occurred in East Timor.

The bill was submitted since the Criminal Code was considered to be lenient and not tough enough to try those suspected to be involved in the abuses.

House Speaker Akbar Tandjung had promised to pass the bill by the end of July, but it has yet to be approved. (nvn/jun)