Criminal Code 'sufficient to try rights abusers'

Criminal Code 'sufficient to try rights abusers'

JAKARTA (JP): Noted lawyer Todung Mulya Lubis has suggested
the legal process for alleged human rights offenders in East
Timor continue, with suspects being tried under the Criminal Code
rather than searching for constitutional loopholes which exempt
offenders from being tried under a new law.

Todung maintained that there were still sufficient articles in
the Criminal Code to try rights abuse cases.

His comments come in the midst of a debate on whether human
rights violators can be brought to trial after the People's
Consultative Assembly last week passed an amendment to the 1945
Constitution which forbids the prosecution of anyone under a law
that did not exist at the time the alleged crime was committed.

The amendment arguably bars suspects of rights abuse in East
Timor from being tried according to a human rights tribunal bill
which is currently being debated in the House of Representatives.

Many activists have said that the Criminal Code is
insufficient as it does not recognize crimes against humanity.

The recent amendment has caused the Attorney General's Office
to postpone making a decision to name the suspects in the East
Timor case, in order to seek a stronger legal argument.

"The amendment does hamper efforts to bring the perpetrators
to justice, but it does not mean it cannot be done," Todung told
The Jakarta Post here on Friday.

"The East Timor case can still be tried with articles in the
Criminal Code, such as articles on murder and rape," he added.

Criminal Code Article 340 on murder carries a maximum sentence
of life or 20 years imprisonment, while Article 285 on rape
carries a maximum 12-year sentence.

Todung conceded that it may be difficult to try those who were
responsible but did not directly commit the crime, however there
was little other recourse.

He further said that to ensure a fair trial, Indonesia should
perhaps agree to have foreign prosecutors and judges on the team
to preside over East Timor cases.

"Actually in modern criminal law, the international community
does not recognize a nonretroactive clause. However, under the
current condition we should allow an exception to the
Constitution to try gross violations of human rights using the
nonretroactive clause," Todung said.

He added that Indonesia should also accept an international
inquiry to demonstrate commitment to trying suspects in the East
Timor case and avoid an international tribunal.

United Nations officials have stated that the recent amendment
might force them to review their decision to let the Indonesian
government handle the case and instead resort to an international
tribunal.

Separately, political observer Kusnanto Anggoro also suggested
the possibility of including an article in the human rights
tribunal bill which could exempt human rights abuse cases from
the nonretroactive clause.

"In the draft, there should be an addition that gross
violation of human rights is not included in Article 28I of the
1945 Constitution," Kusnanto told the Post on Friday.

He is certain that although the Constitution is the structural
basis of all regulations under it, exceptions on human rights
issues is acceptable.

Kusnanto also said that President Abdurrahman Wahid and
Attorney General Marzuki Darusman should make a political
statement to avoid an international tribunal and ensure the
ongoing legal process of the case.

"If we cannot make an exception, it is possible we won't be
able to avoid an international tribunal," Kusnanto added.(dja)