Culture of impunity detrimental to the economy

This is an excerpt of an interview with Indonesia's noted human rights lawyer Todung Mulya Lubis by The Jakarta Post's Melbourne-based contributor Dewi Anggraeni, during Mulya's short visit to Melbourne at the invitation of the University of Melbourne's Asia Law Center.

Question: When President Abdurrahman Wahid came into power there was considerable hope that there would be a genuine commitment to improve the country's record on human rights. Yet people have been disappointed. What do you think is happening?

Answer: I know people are still unhappy about situations in Papua, Kalimantan and East Timor. Here it is obvious that the government has not been able to manage the horizontal conflicts. Another source of unhappiness is the fact that no corruptors have been brought to trial.

As for improving the human rights record, the Commission for Human Rights Violations in East Timor published a report naming 40 perpetrators for having committed human rights violations. The Attorney General's Office only accepted 19 names. Needless to say that among the 19 names, Wiranto's and Kiki Syahnakri's names were not there. Most disappointing was the lack of trial. There was one in Aceh for the assassination of (religious leader) T. Bantaqiah but not in East Timor.

Indonesia's failure to bring the perpetrators to court only reinforces the drive towards secession and regional demands for independence.

Q: Is it because the government has been preoccupied with overcoming problems caused by the economic crisis?

A: By prolonging the impunity, the government will face additional problems in overcoming the economic crisis. The World Bank, the IMF and other multilateral aid organizations will pressure the linking of assistance to human rights issue, so they cannot expect to get away with it.

Q: Does the human rights issue belong to the 'too hard basket'?

A: As a lawyer, I don't think the Indonesian legal system has given a chance to the trial of human rights violations perpetrators. Only recently the government passed a pertinent law -- Human Rights Courts Law. But it is not retroactive, so this law is unable to be used in the cases that I mentioned.

Even assuming that the House approves the establishment of a tribunal for these offenders, it will still be impossible to proceed. The second amendment to the 1945 Constitution stipulates that no law can be retroactive. So the defense lawyers can argue that no past crimes can be tried. Full stop. Dead end. So it is sad that this so-called reformist government has failed to fulfill its promise.

Q: Minister Yusril Ihza Mahendra said that despite the non- retroactivity of the law, the perpetrators of human rights violations could still be brought to court. Why do you think he said that?

A: With respect, the minister is not a practicing lawyer, so he has never had to work in court situations. Any practicing lawyer can tell you that bringing the perpetrators to court under the current law is totally futile. It is going to be quashed without effort.

Q: So, do you think President Abdurrahman has forgotten his promise regarding human rights?

A: The President himself I believe is still committed to human rights, but he has a very fragile coalition government. Former president Soeharto's people are still in control at both regional and central levels. So improvement is still a long way off. In the meantime, public confidence in the President has eroded considerably.

Q: What has the President done of which he can be proud?

A: He has given the media the freedom they wanted and provided protection to minority groups. But he is not good at combating corruption. What he needs but does not have is a strong legal team. He has to pay a high price for his cabinet's failure to enforce law.

Q: It seems that the problems come back to our judicial system. What is the biggest difference between our judicial system and that of countries that have established democracies?

A: I can name three things. First, we need the universality aspect in our law, meaning that all legal principles, wherever they are, should be universal, not particular or local.

So when we talk of corruption, it has to be equally as indictable as it is in the Philippines, or in Australia, for instance. So does murder have to be an indictable crime in every country. Hence, there should not be any country that could say that its law is so special that it could deviate from international standards.

Second, the predictability aspect. For example, when someone who has committed a crime is brought to court, we should be able to predict that the person will be appropriately sentenced. We shouldn't have a situation where we cannot even tell if a person who has committed a crime will be sentenced or get away with impunity. Otherwise, who would want to invest their capital in a country where the law deviates from universal principles, with an unpredictable court?

Third, the precedence aspect. Take a smuggling case that has been tried in the past. It should be able to be reproduced in a similar smuggling case. We cannot have a situation where in one case the perpetrators were sentenced to say, five years, while in another, the perpetrators were set free.

So in these three aspects, Indonesia leaves a great deal for improvement. Without the required improvement people will feel that they live in uncertainty where the law is concerned.

So if you ask what our tasks are, I can say three things. First we need to improve the country's judicial system, including the rules of the government, so that they will be in line with universal legal principles as accepted by the international community.

Then we need to improve our legal institutions which implement the law. That means improving the courts, including the supreme court, improving the Attorney General's Office, the police force, and other legal professions. So all the institutions have to be overhauled.

Thirdly, we cannot implement the law without the support of the community at large. The community at large can be an instrumental factor in implementing the law, if the legal culture is already strong and widespread.

So it is also our duty to establish this culture. That way support for all law enforcement can be a given.

Q: Can you give an example of the lack of universality or unpredictability of our judicial system?

A: Take the Bank Bali case. It has been so notoriously known, reported in almost all media, and the Price Waterhouse audit on it has indicated clear evidence of abuse of power. Several names have been named in the audit reports. The names also appeared in the reports by a House appointed Special Committee for Investigation into Bank Bali. Yet nothing was done to those people.

One case involving one of the people named, Joko Tjandra came up, but he was eventually set free. That flew in the face of the Special Committee's findings, specifying the evidence of corruption.

So here we can see the unpredictability of our law. People who have been named by the audit and the Special Committee, got away without trial or, if tried, were not convicted.

Q: What about the Soeharto case?

A: Now, that is another case. It is true that he is very old. It is undeniable that he is ill. But is he really unfit to stand trial? Recently the medical team did say that Soeharto was unfit to stand trial. But I see one question that the Indonesian court still hasn't been able to answer. This case involves public interest. Why doesn't the council of judges use its right to communicate directly with Soeharto, to verify and confirm that Soeharto is unfit to stand trial?

If after doing that, they are convinced that that is the case, then they can decide that Soeharto's trial cannot proceed. However, legally there is still another way. That is to place Soeharto in a hospital under state supervision and continuous monitoring. The council of judges haven't done any of these.

So there are big questions for which the public would like answers. How could the court so easily dismiss and delete the Soeharto case from the court register? Has the court done enough to reach that stage?

Q: There have been precedents for these?

A: There certainly have been.

Q: So the precedent system is not widely used in Indonesian courts?

A: That's right. Our judges are not tied to the system. This is one of the things, I think, which makes our judicial system so unpredictable, which makes our law enforcement equally unpredictable. This results in conspiracies, mafia, and "transactions" of court cases with impunity.

Q: Is there no law or provisions of law which tie the judges to the precedent system?

A: None.

Q: In regards to human rights and democracy, what is yet to be done?

A: First, in the amendment to the 1945 Constitution, a clear division of power should be emphasized between the executive, the legislature and the judiciary, and provisions which strengthen human rights should be put in place.

Second, the organic laws regulating political parties, societal organizations, NGOs, election and presidency, must be revoked or amended to make them in line with the principles of democracy. They must be assured of self-governing authority, and there should be limitations to their power.

Third, the law that legalized the military participating in socio-political affairs must be revoked.

Fourth, ratification of international human rights instruments must be done. We need to open more avenues to victims of human rights abuses to seek redress.