Cambodian model good for RI rights tribunal

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)