Exploring readiness for ad hoc human rights court

Exploring readiness for ad hoc human rights court

Agung Yudhawiranata, Institute for Policy,
Research and Advocacy (ELSAM), Jakarta

The ad hoc human rights court is now official. Presidential
decree no. 96/2001 mandates the establishment of the court to try
charges of human rights violations in the Tanjung Priok shootings
and post-referendum East Timor cases. The establishment of the ad
hoc court reinforces the implementation of Act No. 26/2000 (the
initial basis for the court's creation).

The ad hoc court has at least two essential implications for
the promotion and protection of human rights in Indonesia. First,
we now have an opportunity to try past human rights violations --
a crucial stepping stone in reforming the legal system.

Second, the court, which will first address the human rights
violations in East Timor that followed the self determination
referendum in September 1999, will be the first plank of the
government's platform on the protection and promotion of human
rights.

There are at least four issues that deserve careful
consideration in terms of their legal and political impacts:

First is the possibility that evidence of gross violations of
human rights may have been lost or misplaced, given the foot-
dragging in the establishment of the ad hoc court.

The results of investigations by the independent Commission of
Inquiry into Human Rights Violations in East Timor were delivered
to the Attorney General last year.

Moreover, two presidential decrees were needed to establish
the ad hoc court. These were issued last year: Decree no. 31 on
the establishment of a human rights court, to be located in the
district courts of Central Jakarta, Surabaya, Medan and Makassar,
and decree no. 96/2001. The latter replaced decree no. 53 as the
government was of the view that it gave the ad hoc court in the
Central Jakarta district court too broad a jurisdiction regarding
cases in East Timor (after the 1999 referendum) and Tanjung
Priok.

In relation to East Timor, the Court's jurisdiction was
restricted to incidents in the three areas of Liquica, Dili and
Suai, and limited to cases occurring between April 1999 and
September 1999. These restrictions have greatly limited the
number of cases and perpetrators subject to prosecution.

The second issue is the selection of judges. Although judges
have already been appointed, on the basis of Presidential Decree
no.6/2002, their recruitment was not conducted in a transparent
way, and provided no room for public participation.

The criteria for candidates -- consisting of professional and
non-professional judges and academics -- remain unclear, and
their backgrounds were not considered in the assessment process.
Most of the candidates, particularly career judges, lack
sufficient track-records in dealing with human rights cases,
while a few even have questionable records in such cases.

There is also a lack of balance in the composition of the non
career judges selected; among those chosen are four judges from
the one university, namely, the Syarif Hidayatullah Institute of
Islamic Studies in Jakarta.

There has not been an adequate public explanation of this
matter, only an informal statement from the Supreme Court to the
effect that the team's composition reflected the possible need
for the tribunal to provide interpretations of Islamic syariah
law.

The selection process was conducted in a manner that could be
considered below standard. The fit and proper test for candidates
by the legislature was inadequate and the required presidential
decree was delayed by a month for no apparent reason.

The non career judges are not known for their experience in
either litigation or due legal process, and view the issue of
human rights purely as an academic exercise.

Meanwhile, training for the judges has not been going
according to plan. A proposal to invite experts from Sweden and
Norway failed to eventuate.

The third key issue relating to the human rights court is the
recruitment of prosecutors. The selection of candidates for these
positions has suffered similar shortcomings to the recruitment of
judges.

It was quite some time before the names of the prosecutors
were disclosed to the public. The excuse given was that the copy
of the presidential decree on the appointment of the court's
prosecutors was delivered late to the Attorney General.

The dossiers on the East Timor and Tanjung Priok cases,
prepared by the Attorney General, do not even touch upon the
issue of command responsibility ie. the liability of a superior
for acts allegedly carried out by a person under his command.

Moreover, of the 23 suspects initially proposed for inclusion
in the case files, only 18 were ultimately included, in 12 case
files. One of these people is known to have died, and three
others have disappeared. This sets a dangerous precedent and is
an indication of the poor level of planning that went into the
preparation of the dossiers.

There has been no official publicity given to the cases,
thereby limiting the degree of public input.

The fourth issue relates to the preparation of necessary rules
and regulations. First, Law no. 26 on the human rights court, now
being used as the guideline for court procedures, does not
specifically cover all issues needed to guarantee a fair trial.

The Law excludes the possibility of utilizing any legal
process other than the Criminal Code.

It also suffers from a number of other weaknesses. One is its
failure to specify extradition arrangements needed to bring
witnesses from East Timor, an important point since trials for
criminal cases in Indonesia require a direct witness.

The role of the Ministry of Foreign Affairs will therefore be
crucial, yet it had no involvement in the establishment of the
court.

Meanwhile, the Criminal Code, as an alternative basis for the
ad hoc court, also has some basic weaknesses in terms of its
capacity to deal with gross violations of human rights.

The Code lacks international standards on admissible evidence,
testimonies and the visum et repertum, among others.

Several important regulations vital to the successful
operation of the court do not yet exist. These include those on
witness protection and victims' compensation.

These legal instruments are essential to protect both victims
and military personnel who act as witnesses, especially those who
have to testify against their superiors.

These witnesses will need legal protection to ensure their
physical and professional security. The absence of regulations on
compensation may discourage victims from becoming actively
involved in the trial process, especially those who act as
witnesses.

The absence of these supporting legal instruments and
mechanisms will mean an increased reliance on the capacities and
abilities of the court's judges.

It is therefore understandable why some are saying the human
rights court is a waste of money, time, and energy instead of a
stepping stone toward the enhanced protection of people's rights
here.

There will be significant political, legal, and diplomatic
consequences should the court fail to function as planned.

If the United Nations Security Council could prove that the ad
hoc tribunal was unable or unwilling to carry out its
responsibilities, international interference could occur through
the creation of an International Human Rights Court on East
Timor, a possibility which so far has been considered a slap in
the nation's face.

In other words, however unlikely it may be, there is still a
chance of justice for the victims of human rights violations
here, whatever the price.