Past rights crimes may get protection under Constitution
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".
Explanation
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)