Transformation to democracy a painful process: Lawyer

Colin McDonald,a prominent human rights lawyer and an expert on international law based in Darwin, Australia, talked to The Jakarta Post recently following the killing of three United Nations workers in Atambua, West Timor.

Question: The United States Secretary of Defense William Cohen recently warned Indonesia that it risked international sanctions if it failed to disarm the militias in East Timor. What do you think about such pressure?

Answer: It's hard for me to give an accurate assessment on who's to blame. One important thing, Indonesia is undergoing a transformation into a democratic country. It's not easy and will not be easy. But it's very important for the democratic development to continue to take place.

After one year, the new government has advanced and they have worked to strengthen the judicial institutions. They announced the supreme court judges that comprise very prominent names. It will be wrong to focus on the negative entirely and not to look at the positive development taking places quietly.

I think one has to be very fair in the assessment and also to understand that in changing a system of 40 years to a new democratic system, there will be pains of change. The crucial thing is democracy. The rule of law and the strengthening of the judicial institutions and tribunals are central to the success of democratic governance in Indonesia.

Q: But a poor judicial system is itself the main problem...

A: I heard the criticisms and I am aware of them. But I also see it is to change. If you look at Western democracies, there is the elected government, the congress with the house of parliament and the judiciary. Indonesia has been showing much interest in the parliament in the last couple of years. But there is another element that helps make the democracy strong, the judiciary. I think it should be given top priority.

Q: Do you expect the world community to be tolerant to what is happening in Indonesia?

A: There are two aspects. The international community has to have an understanding of the pains of growing into a wider democracy which Indonesia is undergoing. However, comments such as those from the U.S defense secretary indicates frustration and a very understandable and natural concern on the killing of the UN humanitarian workers.

One can understand the international concern because the UN is a global institution which promotes peace and Indonesia is a member of the UN.

They have to understand that the process will take time. But in terms of here and now, the Atambua killings and the militia activities is such that it questions the strength of the democratic government in Indonesia.

I do accept that urgent action is needed in relation to the disarming of the militias, how painful it might be, and also in investigating and holding fair trials in court.

Q: In respect to human rights violations following the August 1999 referendum in East Timor, how big is the possibility for an International Criminal Court (ICC) to try the case?

A: Indonesia has named 19 persons in crimes against humanity in East Timor. It will be interesting to see how the investigation proceeds. Many people in the world will be watching.

If Indonesia were unable or unwilling to try the suspects, there's the possibility of a war crime tribunal. But I think the initial investigation needs some patience, investigation is not easy. There can be no prejudgment on this issue. One must be very careful.

I can see a very pragmatic and sensible reason why Indonesia should now sign and ratify the convention on the ICC. It will be very helpful if Indonesia were to sign and ratify it. This will be a positive move for the whole world, that Indonesia is taking a very serious step on human rights and crimes against humanity.

Q: What are other important human rights issues in Indonesia seen from an international perspective?

A: The human rights issue in East Timor is important, but it's not the only one today. Obviously there are concerns on what is happening in Aceh and Maluku. Again, what is interesting is that the focus is on East Timor, but Aceh has been a problem for a long time. Maluku recently erupted. The important thing is the establishment of the rule of law and to make meaningful the constitution that provides for everyone to have the right to live. This is the real, biggest challenge for Indonesia's democracy. The elected government seems to be able to provide justice to all citizens.

Q: What is the general perception of people in Australia on Indonesia at this point in time?

A: It's very hard to make a generalization. But geography has made Indonesia and Australia next door neighbors and good friends. Between 1989 and 1994, I was involved in person-to- person contacts (between Australia and Indonesia) across many fields such as sports, youth, science, history, education and health in a constructive way. I see today, despite all the things occurring, those (person-to-person contacts) are continuing.

Over 20 years, the number of Indonesians studying in Australia has increased dramatically and many Australians spend their holidays in Indonesia.

I think many Australians have been fascinated by the sudden collapse of the New Order and the first steps in the process of democracy. I'm sure there's a strong good will among the Australian people for this democracy to succeed.

In terms of other perceptions, I have to be careful because those perceptions are channeled through many organizations ...

We see now a new country in the region (East Timor) that wants to have economic prosperity and social and political stability in the region.

Reconciliation between Indonesia, Australia and East Timor indeed has to take place in concrete ways. I'm confident that Australia and Indonesia will continue to have good relations not just at formal levels but also at other levels of communication.

Q: You also often voluntarily extend legal advice to Indonesian fishermen who illegally enter Australia. What have you learnt from this experience?

A: I have genuine human rights experience. Sometimes Indonesian fishermen find themselves in trouble and are taken to court in Australia. But there are also refugees from Vietnam, Cambodia, China and Myanmar.

Having done refugee cases for 10 years and also cases on fishermen, my eyes have opened to the world, to human suffering. It's important to look after and care for people who usually have very tragic backgrounds. I have never ever witnessed such human sufferings as that caused by the Pol Pot genocide (in Cambodia), for instance. I find there's a redemptive quality in human compassion.

I understand a lot of people who are happy don't necessarily have more material things, but they have happiness.

In the case of the Indonesian fishermen, it's not unique. There are similar problems in Malaysia, the Philippines, Vietnam and so on. Most of the fishermen are very simple people from very isolated islands. They are not very knowledgeable or sophisticated. So if they must be punished, it has to be justified. I understand that their boats were burnt, this means their economic future have been destroyed. Such a punishment, in a way, is a crime.

There's an organized human cargo trafficking to the U.S. or Canada. Australia doesn't want to have unorganized arrivals but if there are refugees who want to flee their country, who will organize their departure?

Q: Are there also refugees from Indonesia?

A: I am not aware of Indonesian refugees but some Indonesian boats were discovered carrying human cargo.

Q: Do you see any increase in human trafficking?

A: I don't have any figures but I'm sure the human trafficking cases (to Australia) have increased. (I. Christianto)