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)