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.