Settling human rights abuses crucial to RI's transition

Eddy O.S. Hiariej, Parliament Watch, Yogyakarta

The surging demand for the enforcement of human rights in the wake of the New Order's downfall is an urgent issue; but not one of the massive breaches of human rights has been settled so far. This situation is highly unfavorable to Indonesia's global position. Respect for human rights has significant political implications for the achievement of national goals at the international level, particularly in efforts to restore the nation's credibility.

However, resolving a number of severe human rights violations in the past has proved to be very complex, especially amid the shortcomings in the legal system. Improving conditions and policies for the promotion and protection of human rights hinges on the responsibility of the state as well as the active role of private institutions.

Two problems related to the criminal court system and the legal instruments need serious attention. The main weakness lies in the dichotomy between civil and military courts, whose competence is based on a person committing an act instead of the type of act. This raises doubts of the capacity of the courts to thoroughly settle human rights violation cases of the previous era, notably those involving the military -- individually or institutionally.

Past military involvement in public administration led to abuse of power, politics of violence and human rights violations. Under existing rules any member of the military charged with such violations must be tried by a military tribunal.

The military court, with its competence based on the perpetrator rather than the act committed, has proven to be a very effective mechanism for the enforcement of hierarchical obedience and military discipline.

Yet this military court mechanism has also turned out to be very effective in preserving impunity for criminal acts (like murder, torture and abduction) and other grave human rights violations. This kind of judicial process is obviously an affront to the sense of justice because wrongdoers walk away from punishment.

Some progress has been made since the outset of the reform movement. We now have the 1998 Decree of the People's Consultative Assembly on human rights; the second amendment to the 1945 Constitution on human rights protection and the law No.26/2000 on the human rights court.

This law still has major shortcomings.

First, the constitution is rendered contradictory. Although the second amendment to the 1945 Constitution includes protection of human rights, articles 28 contradict the above law. Two different principles are followed: the constitution stipulates the principle of non-retroactivity, whereas the human rights judicial law applies the principle of retroactivity. The difference indicates the lack of clarity in applying the concept of transition of justice in this period of political transition.

Hence it raises fears that human rights violations before the law was passed will never be resolved.

Second, the human rights judiciary law will be distorted as a consequence of the observance of the 1998 Statute of Rome which acknowledges no principle of retroactivity.

Third, the law only partially adopts what is termed as grave violations of human rights from the above Statute. War crimes are not mentioned, which will lead to the difficulty in unveiling severe abuses such as Aceh and East Timor.

Fourth, with today's stronger legislature, the settlement of major violations of human rights has become a political commodity. The legislature has assumed authority to determine the past severe human rights violation cases that can be tried by the ad-hoc court. This political constellation may confuse the human rights judicial mechanism which applies universally.

Fifth, the human rights judicial law is not clear on the boundaries of the Commission of Truth and Reconciliation and that of the ad-hoc court of human rights in the settlement of gross human rights violation cases.

Sixth, in terms of criminal law, the law lacks several important principles such as those relating to the expiry of cases, the system and adoption of criminal verdicts and the period of detention. This means protection for abuse victims, but on the other hand the length of detention time exceeds the limit set by the general provisions stipulated in the Criminal Procedural Law.

Clearly, much needs to be done in addressing this law alone.

(This article is based on the writer's presentation at a recent human rights short course at the International Institute of Human Rights, Strasbourg, France.