Peace, justice, stability must go hand in hand

Paul Dalton and Fergus Kerrigan, Jakarta

Since 1998, foreign observers have followed with hope and concern the progress of Indonesia on its uneven path towards democracy, the rule of law and accountability in government. While the challenges are many, there have been impressive achievements, including significant reforms of the legal system.

Article 1 (3) of the revised Constitution of Indonesia now affirms that Indonesia is a state ruled by law (negara hukum). Article 4 (1) states that the President of the Republic -- and hence the executive power in general -- holds the power of government "in accordance with the Constitution".

Meanwhile, Article 28 D of the Constitution guarantees legal protection to everybody and equality before the law. One result of these provisions is that the executive power is bound to obey the law and constitution like everybody else, and its representatives should be held accountable for violating it, like other citizens.

This is easier said than done. In every country, ensuring accountability in government is a never-ending struggle demanding vigilance and courage. Indonesia has had limited prior experience of state officers and institutions being held accountable, either politically in parliament or judicially through the court system.

Too often, there has been impunity for theft and corruption, or for serious violations of human rights committed by members of the security forces. Impunity damages the reputation of Indonesia abroad, but this is nothing compared to the damage at home. People evade taxes with a cynical shrug if they know their money is misused.

Honest police officers find it harder to protect the public if their reputation is damaged by the corruption or brutality of a colleague. The armed forces cannot count on the loyalty of the population if their proud reputation is tarnished by incidents of murder, rape and violence against innocent civilians.

Human rights violations, besides being morally repugnant, damage the legitimacy of the state and its institutions. They make it much harder to peacefully end conflicts and ensure the trust and loyalty needed to hold this great and diverse country together.

Accountability does not come of itself. It has to be systematized and understood, laid down in legal rules, public institutions and cultural behavior. Through a series of seminars over the past eighteen months, we have had the privilege to discuss accountability for human rights violations with men and women of the law -- judges, prosecutors and police investigators from across Indonesia.

The starting point for these discussions was Law 26/2000 -- the legislation adopted to create the so-called "Human Rights Courts". We can summarize here a few of the conclusions we have drawn from the process.

First, while there are important issues arising from the East Timor cases that need to be addressed, it is also necessary to look to the future. The history and politics of the East Timor issue made it exceptionally difficult for Indonesia (and Timor Leste too) to treat them on strictly legal criteria. For this reason, the process surrounding them and the judgments issued are of limited value for the future.

Second, the jurisdiction of the Human Rights Courts is far too limited to make them an effective vehicle against impunity. Human Rights Courts can only try crimes classified as crimes against humanity or genocide. Often acts of torture, murder, rape, or enforced disappearance can not be classified as crimes against humanity, because there is no proof of an official policy to commit attacks against civilians.

Serious violations of human rights should be punished, also where they are isolated acts without official approval. One solution would be to allow the Human Rights Courts to apply the ordinary Penal Code and parts of the Military Penal Code as well as the special provisions of Law 26/2000.

The second possibility is to recognize the role of the ordinary courts and penal law in punishing violations of human rights. Serious violations of human rights are also crimes according to the Penal Code. It is simply a question of enforcing the law equally and impartially.

One obstacle is that there is no independent body that oversees the police or which can undertake investigations of police who commit crimes. In some countries, this is the function of the prosecution. Currently in Indonesia, the prosecution cannot bring a case, including one against the police, unless the police themselves investigate it first.

There must be some system to ensure the fair and independent investigation of allegations of serious criminal misconduct made against police officers, either by the prosecution or by some other body. Those against whom there is reasonable suspicion should be removed from any position from where they can influence the investigation until it has been completed and the findings made public.

The third observation relates to the military justice system. At present, military personnel can only be tried in civilian courts in two circumstances. The first is in Law 26/2000 cases, the second is where koneksitas courts try military personnel and civilians accused together. Military courts, in Indonesia and elsewhere, are rarely trusted by the public.

There is a strong perception that they protect their own. While it can be argued that only members of the military are qualified to judge conduct in combat situations, this should not be used to cover up or condone serious crimes against civilians. Some countries undergoing reforms have limited the jurisdiction of military courts to service related acts, which by definition cannot include acts such as murder of civilians, rape, torture or abduction.

Others take measures to try to ensure an effective and impartial system of military justice, including the removal of military police, prosecutors and judges from the line of command, ensuring ongoing education of military justice officials in human rights in the administration of justice, and nurturing a culture within the armed forces that firmly rejects methods that are unworthy of military honor. Other possible measures include (as practiced in the Philippines) making military promotions subject to a clean record certified by the National Human Rights Commission.

Measures to prevent impunity are not only in the interest of ordinary Indonesians. They exist also to protect the legitimacy of the state and its institutions, as well as the honest and upright citizens who serve them.

The writers work for the Danish Institute for Human Rights (DIHR). Since late 2003, DIHR has, in cooperation with the Supreme Court of Indonesia, run a program of educational seminars mainly for judges and prosecutors associated with the Human Rights Courts established under Law 26/2000. The program was financed by the Danish Government. The views expressed here are entirely the authors' own.