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.