Settling human rights abuses crucial to RI's transition

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.