Fri, 18 Aug 2000

Past rights crimes may get protection under Constitution

JAKARTA (JP): The People's Consultative Assembly is almost certain to pass a controversial constitutional amendment which will protect anyone from being charged for crimes committed in the past, including human rights abuses, using a newly invoked law.

The amendment, which is expected to be endorsed on Friday, effectively bars the retroactive application of any state law.

The passing of the amendment comes at a critical juncture. Indonesia is debating a new rights tribunal bill which includes a provision for an adhoc tribunal which could, with the permission of the president and the House of Representatives, prosecute those guilty of past human rights abuses, including crimes committed in East Timor and Tanjung Priok.

The bill is still being debated by the House of Representatives.

Assembly Speaker Amien Rais admitted on Wednesday that the introduction of the amendment was an oversight, unnoticed by many legislators.

Amien could only plead ignorance when reproached about the amendment by the Commission for Missing Persons and Victims of Violence (Kontras) chairman, Munir, during a meeting here on Wednesday.

"Unfortunately, you came when the food has already been served," Amien remarked metaphorically.

He admitted he was not really aware of the legal issues involved in the constitutional amendment.

He also acknowledged that leaders of the Assembly's Commission A assigned to discuss the constitutional amendments were also people with little knowledge on legal and human rights issues.

"Probably (in the future), you should come earlier so we can discuss it for a longer time," Amien told Munir without commenting on the demand to revoke part of the article.

Munir was angry that the Assembly could pass an amendment that diminishes hope of trying past human rights abuses.

"All laws and bills which carry a retroactive principle will be defeated by this article of the Constitution," he remarked.

He said human rights abuses in Tanjung Priok, Aceh and East Timor could not be tried as suspects would hide behind the article.

The controversial clause is included in Article 28 I (1) of the draft amendments to the 1945 Constitution.

It states: "The right to life, the right to be free from torture, the right of freedom of thought and consciousness, the right of religion, the right not to be enslaved, the right to be recognized as an individual before the law, and the right not to be prosecuted based on a law which can be applied retroactively are human rights which cannot be diminished under any condition".


Munir rejected the arguments of some Assembly members who said that the explanation of the article, which is also an integral part of the Constitution, states that past rights violations can be tried.

"The article is higher (in power) than its explanation. So it cannot be defeated," Munir argued.

He also refuted suggestions that human rights abuse cases can be processed under the Criminal Code since it only deals with ordinary crimes.

"The Criminal Code does not recognize human rights crimes, such as war crimes and crimes against humanity," he said.

Separately, Commission A chairman Jacob Tobing of the Indonesian Democratic Party of Struggle (PDI Perjuangan) insisted that past human rights abuses could still be taken to court.

He pointed that the explanation includes provisions that past cases can be brought to trial.

"I will be personally responsible if these cases cannot be processed. We could also revoke it in the future if it proves that way," he remarked.

Without elaborating, he added that subsequent articles also acted as "limitations" to Article 28 I (1).

It is unclear which articles he was referring to.

The remaining points of Article 28 I merely state that everyone should be free from discrimination; ensure equality between men and women and the protection of traditional cultures; and assert that the development and protection of human rights shall be the responsibility of the government.

Meanwhile, Article 28 J only states that everyone should respect each others' human rights.

Assembly member Joko Susilo from the Reform Faction said the inclusion of the controversial article may have been after a suggestion by the Indonesia Military (TNI)/Police faction.

Joko implied that the proposal, which was never formally suggested in the adhoc meetings prior to July, may have been introduced in a secluded "synchronization team meeting" held at Sheraton Bandara Hotel at the end of July.(jun)