Settlement of Human Rights Cases

KOMPAS/WISNU WIDIANTORO

Sumarsih, whose son Wawan was one of the victims of the Semanggi 1 tragedy, joins the 500th Aksi Kamisan on July 27, 2017 at Merdeka Palace, Jakarta. Hundreds of human rights activists participated in the 500th Aksi Kamisan – the weekly Thursday rallies that have been held since 2007 –was themed "Sweet Empty Promises" and demanded the government to settle past human rights violations.

One of the major problems of the government and the people of Indonesia that appears to be making no progress toward resolution lies in gross violations of human rights that occurred in the past, especially during the New Order era.

The energy of this nation is eroded in the back and forth of pros and cons between the following options: never to forget and never to forgive, never to forget but to forgive, to forget but never to forgive (no court trials but condemned forever), to forget and forgive or simply to forget it altogether.

In another discourse, the parties who agree and disagree are revealed, as well as those who are for or against judicial or nonjudicial settlement. Will we continue to be trapped in uncertainty and let it become a debt that will always be billed to the next government?

Coordinating Political, Legal and Security Affairs Minister Mahfud MD in his remarks at the opening of a focus group discussion on Dec. 3 in Bandung gave a very clear message, that this nation must no longer continue to indulge itself in the pros and cons of resolving these very serious humanitarian problems. The government and all elements of the nation must immediately find a solution, whether through judicial or nonjudicial mechanisms, or both. But whatever the way, according to Mahfud, there must be a solution.

Read more : Learning from PISA

ANTARA/AKBAR NUGROHO GUMAY

Human rights activists join the 520th Aksi Kamisan on Jan. 4, 2018 at Merdeka Palace, Jakarta. In their action they raised awareness about the Indonesian Military (TNI) going beyond their duties and functions as defenders of national and state sovereignty, and also demanded that the government resolve past cases of human rights violations.

The possible way

The government\'s statement, expressed through Mahfud MD, certainly needs to be appreciated, because this is the clearest attitude of the government so far, and hopefully it does not stop there but really comes true.

Resolving human rights violations is not easy compared to resolving ordinary crimes (conventional crime, corporate crime or organized crime), because the perpetrators, victims, motives, context of the event and the mechanism/procedure for disclosing the cases are specific. Moreover, human rights violations occurred in the distant past. Ideology, political problems, emotional sentiment and technical (legal) difficulties are the main obstacles to solving them.

We have experienced it in resolving human rights violations in East Timor, Tanjung Priok through the ad hoc human rights court, and the permanent Abepura court. All three events ended without convictions of perpetrators by the court; both because of weak indictments and due to weaknesses in the evidence.

This is the clearest attitude of the government so far, and hopefully it does not stop there but really comes true.

Meanwhile, the path of the Truth and Reconciliation Commission (TRC) provided through Law No. 27 of 2004 failed to be carried out following a Constitutional Court (MK) ruling that annulled the law.

Therefore, our perspective in deciding on the model or method of settlement is no longer about the best way or method, the correct or the ideal, but the most likely to be done.

At this point, there must be full awareness to accept the shortcomings of the way to be taken, because if not, we will again fall into endless debates on the pros and cons, even though the way cannot be separated from the substance. Therefore, in deciding on the option it is worth assessing from various aspects: political, legal, financial, emotional and cultural.

The choice of options for resolution also depends on the case, necessitating an assessment on which cases might be resolved through litigation and which may not. If the choice is settlement through legal ways, cases that have already been investigated by the National Human Rights Commission (Komnas HAM) will continue to be carried out by the Attorney General\'s Office. if necessary, there must be joint identification/verification/validation on the alleged perpetrators, victims and evidence.

The second thing is to explain to the people, especially the victims or their families, the serious weaknesses of Law No. 26 of 2000 as the legal basis for the legal settlement process, so that they will accept the process and results of the legal process, especially the possibility of a repeat of the process and the results of the ad hoc Human Rights Court on East Timor, Tanjung Priok and the Abepura permanent human rights court, which ended without any sentencing of perpetrators.

The important thing is that the formation and process of the legal path is objective, open and accountable.

However, if the preferred legal path is to wait for a revision of Law No. 26 of 2000, the government and the House of Representatives must share a commitment and political willingness to revise it quickly in order to overcome the humanitarian problems that have plagued the nation for decades.

If it is not there, it is better to go ahead with the existing law and leave it to the commitment and dedication of the prosecutors and judges to establish true justice.

KOMPAS/RADITYA HELABUMI

Activists and volunteers join the 602nd Kamisan protest in front of Merdeka Palace in Jakarta on Thursday, (19/9/2019). Besides calling on the government to settle past cases of human rights abuse, they also criticized the government and the House of Representatives over the revision of the Corruption Eradication Law and called for the postponement of the planned revision of the Criminal Code, arguing that the bill contained several controversial stipulations that threaten the freedom of speech.

Nonjudicial path

If the choice falls on the nonjudicial path, the following must be taken into account: First, this mechanism requires a willingness and readiness of (mainly) the victims. Second, nonjudicial mechanisms should be made on a case-by-case basis, not general; even examining the possibility of utilizing local cultural power because each case entails its own set of problems.

Third, the nonjudicial methods taken by the government since the previous administration were evaluated again, because some of them were counterproductive and suspected to be exploited by political adventurers and money hunters.

Fourth, the legal basis. Will it revive the Truth and Reconciliation Commission Law, through regional regulations, such as in Aceh and Papua, or other legal instruments, including local legal mechanism?

Fifth, the government should not be the direct actor in formulating the design of the nonjudicial mechanism, but rather form a working group filled with credible figures, who have integrity, are trusted by the public, and have a strong spirit to solve the problems, not to question the problems. This is the work team that will formulate various possible solutions to be submitted to the President.

And finally, the government must throw away doubts to act, so that the government\'s commitments and promises can be realized, and we can walk into a challenging future. There will certainly be pros and cons, as experienced in South Africa, Argentina, Chile, Rwanda and so on.

Suparman Marzuki, Director of the Center for the Study of Human Rights, Indonesian Islamic University 2000-2010.