More serious uncertainty about the law looms

More serious uncertainty about the law looms

By Hery Susetyo

JAKARTA (JP): After years of pain, recrimination and
frustration over obstructed legal recourse, seven of the victims
of the 1984 military shooting in Tanjung Priok agreed last week
to "reconcile" with those they had accused of slaughtering
hundreds of Muslims.

The ishlah agreement took place at the Sunda Kelapa Mosque in
Jakarta, witnessed by Muslim scholar Nurcholish Madjid and
Jakarta Military Commander Maj. Gen. Bibit Waluyo. A notary
legalized the document while the signatories included former vice
president Try Sutrisno (who, at the time of the shooting, was
Jakarta military commander).

The victims were represented by, among others, Syafruddin
Rambe, Sofwan Sulaeman, and Siti Chotimah.

Immediately after the signing, speculation grew over whether
some form of financial compensation was behind the settlement.
The fact that the settlement was reached when Indonesia was
preoccupied with pressing matters such as the massacre of
Madurese in Central Kalimantan and mounting pressure against
President Abdurrahman Wahid, only fueled further speculation.
Observers, too, questioned whether the ishlah meant termination
of legal recourse.

Another point raised by many was why the forum failed to
represent all victims of the Tanjung Priok shooting -- there are
hundreds of others who insist on keeping their distance from the
military authorities.

Among those not represented in the ishlah were a group known
as the Big Family of Tanjung Priok Victims (Keluarga Besar Korban
Tanjung Priok) led by Mukhtar Beni Biki -- the brother of Amir
Biki who was among those killed in the incident. Beni Biki
claimed the ishlah was a ploy to bury the case.

Regardless of whether Biki's claim is justified, neither the
Indonesian judicial system nor its criminal justice recognizes
the mechanism of ishlah. The reconciliation is a cultural concept
known more popularly as a deliberation to reach consensus
(musyawarah), something that Indonesians apply in settling civil
cases.

But the Tanjung Priok shooting was not a civil lawsuit. It was
a criminal case, not to mention a serious violation of human
rights. Approximately 500 lives were lost in the military
brutality then, and hundreds of others disappeared from that day
without a trace. The government has never given the victims or
the public a satisfactory explanation of the incident.

The Big Family, with the legal assistance of the Coalition of
Legal Counsels for Priok Case, has for years been campaigning to
unravel the mystery surrounding the case and for the restoration
of the victims' rights.

By intensive lobbying, the group persuaded the National
Commission on Human Rights and the House of Representatives (DPR)
to establish commissions to reinvestigate the murders. Even
exhumation of some graves was conducted.

Yet, the mystery surrounding the violence remains. Those who
have for years been "suspected" by many as the parties
responsible for the shooting remain free.

This explains the suspicion that the ishlah was merely an
attempt to bury the case for good -- especially because the
document stipulates that beginning March 1, 2001, all parties
involved will uphold peace, forgive one another, reunite in the
spirit of brotherhood, harmony, love, and will cease all forms of
passion for conflict, hatred and enmity.

Granted the signatories have admitted that the ishlah was not
a legal forum, but a religious one -- Islamic in this case -- as
the Koran enjoins peace-making in the Sura Huud verse of the
Koran.

Another Koranic verse (Sura Al-Baqara: 178) describes how a
person who has committed a crime such as murder could be exempted
from the law of "an eye for an eye" (qishash), which must be
decided by an Islamic court, if the family of the victims
pardoned him and if he paid compensation.

Although some people may draw a comparison, this writer
objects to settling the Tanjung Priok shooting using
interpretations derived from the Koranic verses above. If one
wishes to apply the concept of ishlah in cases of qishash (where
families of the victims pardoned the killers), one needs to
operate in the presence of an adequate judicial system -- namely
the Islamic criminal justice system.

In the absence of the components of the Islamic criminal
justice system, the ishlah settlement amounts to nothing but
another ploy by the perpetrators to escape prosecution.

The legal context of the Tanjung Priok shooting is such that
it cannot be settled by ishlah. As religious people, the parties
involved could certainly forgive and maybe forget. But as
citizens of Indonesia and subjects under the Indonesian law, both
parties should be willing to let the legal machinery run its
course, especially as the principle of presumption of innocence
will continue to be upheld until there is a conviction. Chapter 2
of Indonesia's Criminal Code stipulates equality before the law.

But later developments have shown that the existing criminal
codes were not enough to help solve the Tanjung Priok case --
evidence has been difficult to collect and human memory falters.

Later, the government gave birth to Law No. 39/1999 on human
rights court and Law No. 26/2000 on the Truth and Reconciliation
Commission in the hope of empowering the legal system in dealing
with such cases.

But the first law was established on the principle of non-
retroactivity -- it therefore cannot be used to try past
violations. The second legislation, on the other hand, has to be
equipped with directives before it can be effective.

Given the weaknesses of the existing legal system, the former
military officers involved in the Tanjung Priok shooting might
have wasted their resources in establishing the ishlah. It would
have been understandable had they pursued the option out of
guilt, but aside from that the public would only see it as yet
another attempt to evade the law.

Sympathy, however, should go to the seven victims who signed
the settlement. Years of futile campaigning to seek legal
compensation might have sapped their energy, so it would be
understandable that they may accept the ishlah as a quick and
practical solution.

It is my belief that a human rights trial would still be the
best solution for the Tanjung Priok case. The ishlah must never
be used as a reason to terminate criminal justice demands --
otherwise it would be a very bad precedent for Indonesian law
enforcement.

A more serious uncertainty about the law would be perpetuated.

The writer is director of the Center for Legal and Human
Rights Advocacy (PAHAM) and lecturer at the University of
Indonesia's Law School.