Thinking retributive justice

Thinking retributive justice

Todung Mulya Lubis, Lawyer, Jakarta

Can justice be replaced with another means of social avenue?

A fair and lasting reconciliation can only be achieved by
emphasizing the rights of victims.

In Indonesia, efforts to make peace with the past through the
formation of a truth and reconciliation commission are more
guided by the interest to prevent national disintegration.

Reconciliation is deemed more important than accountability.

There are fears that demanding accountability for past human
rights abuses will invite new conflicts and spark a reaction from
the military -- or the "disintegration of the nation". Upholding
justice for victims is thus not a priority.

The predominant thought on the suitability of "reconciliation"
is driven by information on the success of the restorative
justice model in South Africa in stopping violence and revenge.

Amnesty is used as an incentive to encourage confession and
testimony from perpetrators of human rights crimes. This is done
to formulate an "official truth" about past abuses which were
hitherto concealed or deliberately forgotten.

This model has been lauded a success in setting the wheels in
motion toward a "truth seeking process", where victims' suffering
receive public recognition through "truth telling" sessions. The
process is said to enable the healing of trauma, encouraging
victims to put the past behind and forgive.

But morally, can we truly give amnesty to perpetrators of
human rights abuses? The choice of the South African model for
Indonesia would be a leap into the void: Debate on the model has
not been exhausted, and its true possibility has not been
examined.

Can amnesty be given to a perpetrator of a crime against an
individual? International human rights defenders offer two
arguments for the upholding of what is called retributive
justice. They reject the giving of amnesty to perpetrators of
human rights abuses.

The first argument is that amnesty may be given by the state
only to those who commit crimes against the state, for example
subversion, separatism or an attempted coup d'etat. However, the
state cannot take over an individual's decision to offer
forgiveness for a crime that the state did not itself experience.

Further, gross human rights violations are crimes caused by
abuse of the state's power. Amnesty cannot be given by the state
because the state itself has committed the crime.

The second argument refers to the political consequences in a
country of transition. In the event that a government, in a
transitional phase, enforces the sentencing of these
perpetrators, this could cause a political backlash. Justice,
deliberately and consciously, is sacrificed to maintain or
achieve social harmony.

This view should consider the consequence that granting of
amnesty has toward democratic transition. If amnesty is chosen as
a result of fear of military might, the granting of amnesty will
strengthen the military itself.

As in Guatemala and El Salvador, granting amnesty to the
military has made the military even more powerful and feared.
Hence involuntary disappearances, torture, extrajudicial killings
and rape continue.

Before amnesty is granted, certain conditions have to be met.
In South Africa, the main reason why former actors of the
apartheid regime chose to apply for amnesty is because they were
fearful of the relatively strong judicial system. So without a
real judicial stick, the incentive of amnesty is not attractive
enough and therefore truth seeking is not promoted.

The promoters of the "restorative" justice model for Indonesia
argue that the law and its instruments here cannot be trusted to
uphold legal justice.

Because of this, they promote the extrajudicial process, such
as truth seeking and reconciliation, to face the past. However,
how can this model be applied without legal authority?

Such a model thus faces a big problem because it does not
produce the political push toward legal reform. A corrupt legal
system remains a problem.

The retributive justice model upholds accountability and legal
justice. It pushes for legal reform, for without it retributive
justice is like a toothless tiger. This model is seen as having a
more just and lasting contribution to achieving reconciliation.
Retributive justice also prevents the recurrence of past
injustices through the formation of a moral society. The
arguments for this are as follows:

First, to achieve reconciliation, solution through justice
must have a stronger basis to prevent revenge since the outcome
ties both parties.

Second, if public recognition of the suffering of victims is
the core toward healing -- and if this healing is the heart and
soul of reconciliation -- then there is no more powerful
recognition than the upholding of justice for violators of human
rights abuses.

Third, solution through the courts will demand proof,
witnesses and confessions. All demand serious investigation. The
whole process will give input to truth seeking and the
establishing of official truth, the objective of restorative
justice.

Fourth, emphasis on accountability will make the public more
aware that even crimes committed in the name of the state are
wrong and cannot be condoned. This awareness will contribute to a
moral society which will not accept the recurrence of past
injustices. But where the legal system is weak and corrupt, won't
amnesty give rise to total military impunity?

The heart of the question on transitional politics here is the
denial of justice for victims of past human rights abuses.
Accountability is an anathema fought at every front by
perpetrators of human rights violations in Indonesia, many of
whom are still sitting on high seats of power.

Impunity is the reason why political tensions in Indonesia
continue to persist until today.

However, the cycle of impunity can only dance on the death of
the rule of law. Without the rule of law, an open and free
economic life and structure will face serious threats due to
legal uncertainty.

There is a strong and clear connection between justice and
efforts for economic recovery. The bridge for this is the
upholding of the rule of law. Endeavors to uphold the rule of law
will be helped by the people's struggle to combat the cycle of
impunity by pushing for retributive justice.

The above is a condensed version of the writer's presentation
at the joint annual conference of the Indonesian-Australian and
Australian-Indonesian Business Councils held in Nusa Dua, Bali on
March 13 to March 15.