Cambodian model good for RI rights tribunal

The Attorney General's Office has named 19 "possible suspects" in last year's violence in East Timor. Given the current legal quandaries, lawyer Todung Mulya Lubis suggests there may be lessons to be taken from Cambodia's experience.

Question: How do you view last Friday's announcement of 19 suspects in last year's violence in East Timor?

Answer: The announcement has disappointed various parties who, given the recent report of the National Commission on Human Rights (Komnas HAM) team, expected that the suspects would have included more officials, such as former Armed Forces chief Gen. Wiranto, former pro-Jakarta East Timorese militia chief Joao Da Silva Tavares, and his deputy, Eurico Guterres.

But there is something that makes me feel more concerned.

Q: What's that?

A: The Attorney General's Office has apparently taken for granted that it will be able to proceed with its plan to investigate the violence, and even to bring (suspects) to court; whereas Chapter 28I of the amended 1945 Constitution clearly forbids the retroactive enforcement of laws (meaning past offenses cannot be tried).

It seems that the office's investigation team, which said the constitutional amendment wasn't meant to eliminate the possibility of sending rights violators to court, has overlooked the Chapter's legal impact.

Q: Some legislators said that a new bill on a human rights tribunal being deliberated by the House of Representatives would include a retroactivity principle. Could suspects be brought to court after the bill becomes effective?

A: I think the defendants, with the support of their advocates, will be persistent in trying to use the above Chapter of the amended Constitution in their arguments, so that the proposed human rights law will not be able to be imposed on them retroactively.

And there is no guarantee that the judges, whoever they are, will have the courage to violate the Constitution's nonretroactivity principle, which, according to the legal hierarchy cannot be overridden by laws and other lower (in legal weight) rules.

Q: Hasn't Minister of Justice and Human Rights Affairs Yusril Ihza Mahendra ensured that the perpetrators can be tried under the proposed human rights law?

A: Actually I want to believe him, but I'm afraid I'm deceiving myself. His statement, therefore, is merely for political interests and has no legal impact.

Q: Then what can judges do in trying the suspects?

A: As they will not be able to impose the proposed human rights law on the suspects, they will convert the human rights violations into ordinary crimes, such as killings, robberies and rapes, which are regulated under the Criminal Code.

Punishments for human rights violations are generally heavier than those for ordinary crimes, but finding evidence for human rights violations is easier than that for ordinary crimes.

Testimonies of victims and witnesses, for example, can be adequate for use as evidence of human rights violations but proving ordinary crimes will also need supporting documents.

That is why only field officials are most likely to be tried.

Q: Many people will surely remain disappointed.

A: Of course; East Timorese and human rights activists inside and outside the country. This will lead to waves of systematic pressure against the United Nations Security Council, encouraging it to set up an international tribunal for Indonesian officials allegedly involved in human rights violations in East Timor.

If that happens, it will be a hard blow for Indonesia because the country, just like the ex-Yugoslavia and Rwanda, will be regarded as being unable to take legal action against its own perpetrators of human rights abuses.

Q: What would be the impact of an international tribunal?

A: There might be a snowballing impact, such as the reluctance of the international community to cooperate economically with Indonesia and a slower recovery of our economic activities.

Q: What led legislators to insert the prevention of retroactivity in the Constitution?

A: Some ambassadors have called me, asking whether there was a conspiracy by those who want human rights violators to be free from a human rights tribunal. But I think the insertion of the Chapter was the result of a political compromise, which came from a trade-off between introducing the above clause leading to immunity and the writing into the Constitution of the political role of the military and police.

Such a compromise indicates that a large number of prostatus quo legislators at the People's Consultative Assembly and other members of the political elite have succeeded in their lobbying to securing their political interests.

Q: Who would these prostatus quo people be?

A: They may come not only from the Assembly's military/police faction, but also from elements of political parties like Golkar, the Indonesian Democratic Party of Struggle and the United Development Party. The government, now led by a "reformist" president, also has some (high-ranking) officials who are still in favor of the status quo.

Q: How could an international tribunal be avoided?

A: As it would be difficult for us to introduce an internationally acceptable human rights tribunal, we can learn from the experience of Cambodia, which reached a compromise with the UN by introducing a national tribunal for their human rights violators; but the judges and prosecutors came from both inside the country and the international community. (Rikza Abdullah)