Pages from Indonesia's history - past abuses remain unresolved

INDONESIA: Pages from Indonesia's history -- past abuses remain unresolved

19 May, 2010

An Article by Daud Bereuh from KontraS, the Commission for the Disappeared and Victims of Violence in Jakarta, Indonesia 

The violence on 13, 14 and 15 May 1998 followed as a culmination of a series of violence that occurred in Indonesia before the fall of President Suharto, who had been in power for 32 years. Two major events led to this violence on 13-15 May, namely the kidnappings and disappearances in the period 1997-1998 and the shootings that killed four students of Trisakti university. These incidents are part of the dark period in Indonesia 12 years ago.

The economic crisis that hit Indonesia in this period led to people looting stores and malls in Jakarta and other big cities. During these incidents many people died or were injured. In addition, sexual violence was committed against ethnic groups, which has left the female victims still deeply traumatized. The damage that victims have suffered because of these incident is great, both in a material and in an immaterial sense.

Legal Process to Resolve the Cases
As a result from pressure from civil society to resolve the May 1998 case, the Tim Gabungan Pencari Fakta (TGPF or Joint Fact Finding Team) was established by a Joint Decree by the Defense and Security Minister/Commander of the Indonesian Army, Justice Minister, Home Affairs Minister, Foreign Affairs Minister, State Minister for Women Empowerment and Attorney General issued on 23 July 1998.

This Fact Finding Team investigated and revealed facts, including those with regard to the perpetrator who was allegedly involved in the May riot case; these were some the Indonesian Military Commanders and the background of the 13-15 May 1998 incidents. The Team was comprised of government officials, the National Commission for Human Rights (Komnas HAM), NGO's and other civil society organizations and individuals.

In addition to the Fact Finding Team, Komnas HAM formed an ad hoc Inquiry Team to investigate the May 1998 riots. This team investigated the suspicion that serious human rights violations had taken place during the incidents in May. Komnas HAM concluded that serious human rights violations had indeed occurred. On 19 September 2003, Komnas Ham submitted its findings to the Attorney General and requested him to conduct investigations.

Obstacles against case resolution at Attorney General Office
The legal process for the May riot case was halted at the Attorney General Office. After receiving the documents from Komnas HAM, the Attorney General did not immediately start investigations as mandated by Law No 26/2000 regarding a Human Rights Court as mentioned in the article 21 and article 23. Instead, the Attorney General refused to conduct inquiries because it was waiting for the formation of an ad hoc Human Rights Court.

In addition to the May riot case, a number of other serious human rights violations cases are also halted by the Attorney General, being the Trisakti case, the Semanggi I and II cases, the Kidnappings and Enforced Disappearances of Activists case of 1997-1998 and the Wasior-Wamena case in Papua. The Attorney General repeatedly returned the relevant documents to Komnas HAM, the last one being on 28 March 2008. Komnas HAM then completed the documents on the case of Kidnapping and Enforced Disappearances against Activists in 1997-1998, Trisakti case, Semanggi I and II, as well as the May Riot 1998 case before submitting the documents to the Attorney General again on 28 April 2008. The documents for Wasior-Wamena case in Papua was completed and re-submitted by Komnas HAM to the Attorney General on 15 September 2008. However, those cases are still halted at the Attorney General Office.

The Attorney General has refused to enforce law and comply with human rights. As a reason for this refusal, the Attorney General has asserted that he is awaiting the decision about the establishment of an ad hoc Human Rights Court. Clearly, this is a fabricated excuse.

The Decision of the Constitutional Court must be used as Reference
The decision of the Constitutional Court (MK) of the Republic of Indonesia No. 18/PUU-V/2007 concerns a a judicial review of article and explanation of 43 (2) of Law. No. 26/2006 regarding Human Rights Court, mention the recommendation from the House of Representatives to establish an ad hoc Human Rights Court for gross violations of human rights that were perpetrated before 2000.

The Constitutional Court decided that this article remains valid. The Constitutional Court stated that in order to determine the necessity to establish an ad hoc Human Rights Court for a particular case, the involvement of a political institution is required to reflect the presentation of the House of Representatives. The House of Representatives should in its recommendations about the establishment of such a Court take into consideration the results of investigation and inquiry conducted by authorized bodies, in this case Komnas HAM and the Attorney General.

According to the Constitutional Court, the explanation of Article 43 paragraph (2) regarding the word "alleged" is contradictory to the constitution and is therefore not legally binding. The House of Representatives can no longer speculate about the existence of serious human rights violations; instead, it has to take into consideration the results of investigations carried out by Komnas HAM and Attorney General with regard to the recommendation for the establishment of ad hoc Human Rights Court. The decision of the Constitutional Court is final, which means that it is immediately legally binding after issuance and no legal action can be taken against it.

Referring to the Constitutional Courts' decision, the Attorney General should not avoid or refuse to commence and conduct inquiries. The decision has clarified the mechanism and process of establishing the ad hoc Human Rights Court, in which Komnas HAM is the institution that is authorized to investigate if serious human rights violations have taken place. The results of Komnas HAM’s investigation were submitted to the Attorney General for a following investigation. After that, the House of Representatives will recommend the establishment of ad hoc Human Rights Court. However, the AG does not follow up on the decision of the Constitutional Courts.

Obstacles within the House of Representatives
The House of Representatives plays a very important role in human rights enforcement. However, it has a bad track record as several human rights violation cases were halted in its watch, namely the Special Committee which was established by the House of Representative for Trisakti, Semanggi I and II in its 1999-2004 period. The House of Representatives has annulled Komnas HAM's conclusions by declaring that no serious human rights violations occurred in the Trisakti, and the Semanggi I and II cases.

In March 2007, the 2004-2009 House of Representatives exerted the same obstacle against human rights enforcement effort. Through its Consultation Body (Bamus), the House of representatives rejected the recommendation by Commission III of the House of Representatives to bring the issue of establishing ad hoc Human Rights Courts for Trisakti, Semanggi I (1998) and Semanggi II (1999), and May 1998 cases to the House’s Plenary Meeting. Six factions rejected the recommendations and only four factions supported it. This mechanism is an internal process in the House of Representative to make decision for resolve some problems.

The above situation leads to questions about the House of Representatives' position in representing the people of Indonesia. In its true role, the House should be at the people’s side, especially the side of those who suffer. As a manifestation of and commitment to upholding human rights, the House of Representatives must maximize its role of supervising the government in order to safeguard the process of human rights enforcement. This can be done by urging the Attorney General to conduct investigations; not with the purpose of intervening legally, but to commence the process of human rights enforcement, which process the Attorney General has been unwilling to start.

The President should Repair Victims’ Rights Immediately
Twelve years have passed since the May incidents. The State, who is responsible to ensure justice, remains passive. There has been no serious effort by the State in the past 12 years to give justice to the victims, namely by punishing the perpetrators according to Human Rights Court mechanisms and providing quick and appropriate reparation to the victims’ families.

There are three basic rights for victims of serious human rights violations that are part of the State’s responsibility. The first is the right to know, reserved by the victims and their families to know about everything related to past human rights violations. The second is the right to justice, meaning that the victims have the right to an effective and fair trial and that the State has to ensure that the perpetrators are punished. The third is the right to reparation, which includes four aspects, namely compensation, restitution, rehabilitation and guarantees of non-repetition.

Therefore, the State has to be committed to upholding human rights by immediately providing justice to victims. The State should not let victims wait too long as they and their families have suffered and been traumatized enough by the past violations. Indonesia must prove its commitment not only by ratifying international human rights instruments but also by ensuring that the existing human rights provisions are more than mere accessories or decorations. By resolving past human rights abuses, Indonesia can move toward a great nation. Indonesia's black pages should be whitened to ensure that similar cases do not recur to our future generations.

Daud Berueh is a staff member of the Impunity Watch and Fulfillment of Victims’ Rights division of the Commission for Disappeared and Victims of Violence (KontraS). He is also the son of a victim of the Tanjung Priok Tragedy 1984.

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About AHRC: The Asian Human Rights Commission is a regional Non-Governmental Organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.