Peace, justice, stability must go hand in hand

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.