The Jakarta Post
March 4, 2002
Exploring readiness for ad hoc human rights court
Agung Yudhawiranata, Institute for Policy, Research and Advocacy (ELSAM),
Jakarta
The ad hoc human rights court is now official. Presidential decree no.
96/2001 mandates the establishment of the court to try charges of human
rights violations in the Tanjung Priok shootings and post-referendum East
Timor cases. The establishment of the ad hoc court reinforces the
implementation of Act No. 26/2000 (the initial basis for the court's
creation).
The ad hoc court has at least two essential implications for the promotion
and protection of human rights in Indonesia. First, we now have an
opportunity to try past human rights violations -- a crucial stepping
stone
in reforming the legal system.
Second, the court, which will first address the human rights violations
in
East Timor that followed the self determination referendum in September
1999,
will be the first plank of the government's platform on the protection
and
promotion of human rights.
There are at least four issues that deserve careful consideration in
terms of
their legal and political impacts:
First is the possibility that evidence of gross violations of human rights
may have been lost or misplaced, given the foot-dragging in the establishment
of the ad hoc court.
The results of investigations by the independent Commission of Inquiry
into
Human Rights Violations in East Timor were delivered to the Attorney General
last year.
Moreover, two presidential decrees were needed to establish the ad hoc
court.
These were issued last year: Decree no. 31 on the establishment of a human
rights court, to be located in the district courts of Central Jakarta,
Surabaya, Medan and Makassar, and decree no. 96/2001. The latter replaced
decree no. 53 as the government was of the view that it gave the ad hoc
court
in the Central Jakarta district court too broad a jurisdiction regarding
cases in East Timor (after the 1999 referendum) and Tanjung Priok.
In relation to East Timor, the Court's jurisdiction was restricted to
incidents in the three areas of Liquica, Dili and Suai, and limited to
cases
occurring between April 1999 and September 1999. These restrictions have
greatly limited the number of cases and perpetrators subject to prosecution.
The second issue is the selection of judges. Although judges have already
been appointed, on the basis of Presidential Decree no.6/2002, their
recruitment was not conducted in a transparent way, and provided no room
for
public participation.
The criteria for candidates -- consisting of professional and
non-professional judges and academics -- remain unclear, and their
backgrounds were not considered in the assessment process. Most of the
candidates, particularly career judges, lack sufficient track-records
in
dealing with human rights cases, while a few even have questionable records
in such cases.
There is also a lack of balance in the composition of the non career
judges
selected; among those chosen are four judges from the one university,
namely,
the Syarif Hidayatullah Institute of Islamic Studies in Jakarta.
There has not been an adequate public explanation of this matter, only
an
informal statement from the Supreme Court to the effect that the team's
composition reflected the possible need for the tribunal to provide
interpretations of Islamic syariah law.
The selection process was conducted in a manner that could be considered
below standard. The fit and proper test for candidates by the legislature
was
inadequate and the required presidential decree was delayed by a month
for no
apparent reason.
The non career judges are not known for their experience in either litigation
or due legal process, and view the issue of human rights purely as an
academic exercise.
Meanwhile, training for the judges has not been going according to plan.
A
proposal to invite experts from Sweden and Norway failed to eventuate.
The third key issue relating to the human rights court is the recruitment
of
prosecutors. The selection of candidates for these positions has suffered
similar shortcomings to the recruitment of judges.
It was quite some time before the names of the prosecutors were disclosed
to
the public. The excuse given was that the copy of the presidential decree
on
the appointment of the court's prosecutors was delivered late to the Attorney
General.
The dossiers on the East Timor and Tanjung Priok cases, prepared by the
Attorney General, do not even touch upon the issue of command responsibility
ie. the liability of a superior for acts allegedly carried out by a person
under his command.
Moreover, of the 23 suspects initially proposed for inclusion in the
case
files, only 18 were ultimately included, in 12 case files. One of these
people is known to have died, and three others have disappeared. This
sets a
dangerous precedent and is an indication of the poor level of planning
that
went into the preparation of the dossiers.
There has been no official publicity given to the cases, thereby limiting
the
degree of public input.
The fourth issue relates to the preparation of necessary rules and
regulations. First, Law no. 26 on the human rights court, now being used
as
the guideline for court procedures, does not specifically cover all issues
needed to guarantee a fair trial.
The Law excludes the possibility of utilizing any legal process other
than
the Criminal Code.
It also suffers from a number of other weaknesses. One is its failure
to
specify extradition arrangements needed to bring witnesses from East Timor,
an important point since trials for criminal cases in Indonesia require
a
direct witness.
The role of the Ministry of Foreign Affairs will therefore be crucial,
yet it
had no involvement in the establishment of the court.
Meanwhile, the Criminal Code, as an alternative basis for the ad hoc
court,
also has some basic weaknesses in terms of its capacity to deal with gross
violations of human rights.
The Code lacks international standards on admissible evidence, testimonies
and the visum et repertum, among others.
Several important regulations vital to the successful operation of the
court
do not yet exist. These include those on witness protection and victims'
compensation.
These legal instruments are essential to protect both victims and military
personnel who act as witnesses, especially those who have to testify against
their superiors.
These witnesses will need legal protection to ensure their physical and
professional security. The absence of regulations on compensation may
discourage victims from becoming actively involved in the trial process,
especially those who act as witnesses.
The absence of these supporting legal instruments and mechanisms will
mean an
increased reliance on the capacities and abilities of the court's judges.
It is therefore understandable why some are saying the human rights court
is
a waste of money, time, and energy instead of a stepping stone toward
the
enhanced protection of people's rights here.
There will be significant political, legal, and diplomatic consequences
should the court fail to function as planned.
If the United Nations Security Council could prove that the ad hoc tribunal
was unable or unwilling to carry out its responsibilities, international
interference could occur through the creation of an International Human
Rights Court on East Timor, a possibility which so far has been considered
a
slap in the nation's face.
In other words, however unlikely it may be, there is still a chance of
justice for the victims of human rights violations here, whatever the
price.