1. Introduction: Process of drafting of the Bill and political context
This assessment is based on interviews or discussions that were conducted with six persons from the Indonesian community of NGOs and victims of human rights violations in Jakarta between 11/12/2004 and 02/01/2005, as well as on my own reading of the Indonesian Bill on the Truth and Reconciliation Commission (TRC).
The interviews were aimed at assessing the different views, criticisms and strategies of these groups concerning the TRC. Regarding the low number of interviews, it is of course not possible to claim that these draw a general picture of the NGO and victim communities. Nevertheless, it can be a starting point for further assessment, provide ideas for a campaign and ways to cooperate with local NGOs.
This report is divided into thematic sections. First, it looks at the debate preceding the enactment of the TRC Bill and the different expectations from the TRC. It then presents the opinions on potential problems with the TRC with regards to its relations to the courts and Indonesian National Human Rights Commission (KomnasHAM), and to its various functions, i.e. investigation and amnesty; compensation, restitution and rehabilitation; reconciliation; as well as several miscellaneous issues. Finally, the report presents the different existing strategies of NGOs and victims group towards the TRC
2. The Debate Preceding the TRC Bill
The idea of an Indonesian TRC was first voiced in 1999 under the Wahid administration, and then again under Megawati in 2002 or 2003 . The original draft Bill was developed by the NGO Elsam and KomnasHAM at a time where KomnasHAM did not include any representative of the victim communities , and then discussed in a special parliamentary commission chaired by Sidharta Dhanusobroto (PDI-P). During the discussion changes weakening the TRC were introduced, instrumental in this process was Yusil Mahendra . Since the only occasion when they could express their concerns was one public DPR hearing, victims criticize that they were not sufficiently involved in this drafting process . From this viewpoint, the characterization of TRC Bill as a political compromise between the interest groups concerned is not correct, since one of the most concerned groups, the victims, were apparently not consulted.
Several discussants stressed the importance of this political context in which the Indonesian TRC comes into being. Unlike its ‘role model’, the South African TRC, the Indonesian version is not the result of a compromise between the old and the new regime, which would make it a medium of compromise within the political transition. In Indonesia, however, many of the perpetrators are still powerful, and there is no clear distinction between old and new regime, between government and opposition, as there is no stable government coalition and as representatives of the old regime hold positions in all major parties. This potentially puts severe constrains on the TRC ability to address past crimes and highlight the role of the still powerful perpetrators.
Besides the bureaucratic and military elites of the old regime, opposition against the TRC also comes from religious groups such as NU, which state that they want reconciliation, but imply that this has to be conducted without debating and reopening past crimes .
In some cases, whether somebody is classified as a victim or perpetrator might even be ambiguous. The example of Megawati, who was victimized in 1996 but now does not seek remedy, was mentioned.
3. Expectations from the TRC
Expectations towards the TRC differ, both between NGOs and between victims.
One group stressed the need to investigate past state crimes, which by their perpetrators were portrayed as ‘law enforcement’ against ‘subversive’ groups, e.g. communists and Islamists, and to officially and publicly recognize that these were actually violations of human rights . Similarly, victims seem to hope that the TRC can help to give them recognition of their status as a victim and to classify their experiences as human rights violations.
An investigation into the background of past crimes is hoped to serve as an impetus for a broad public debate on the past regime which in turn could prompt a rectification of historical narratives and establish and imperative of ‘never again’ . Victims stressed the need for historical rectification, especially the rehabilitation of Sukarno, but doubted that the TRC will be able to achieve this.
Few discussants hoped that the TRC’s investigation could serve a court trial at a later stage, and that it can provide just compensation to the victims and give amnesty to regretful perpetrators .
When talking to victims’ groups and individuals, skepticism seemed prevalent. Their notion is that when the government says ‘reconciliation’, it actually means to forget past human rights violations and unconditional forgiveness from the victims. This impression is reinforced by the ‘trade-off’ between compensation, rehabilitation or restitution and amnesty/forgiveness, so that some victims hold the cynical view of the TRC as a tool of amnesty and whitewashing the past . Other victim groups, however, welcomed the TRC as a minimal solution, and hope for recognition and compensation .
4. The Relations of the TRC with the Courts and KomnasHAM
In theory, a TRC should gather evidence about abuses of the past regime to clarify and rectify history and to render justice to the victims outside of the legal system. The information collected can function as evidence in a court trial. Moreover, in the environment of the weak Indonesian legal system, where judges lack commitment to try powerful perpetrators, the information gathered by the TRC can add pressure to improve that system and render justice to the victims. However, a TRC is not to deal with the criminal responsibility of individual perpetrators, as this is the task of courts and would violate the victims’ right to a fair trial .
In violation of this right, paragraph 44 of the TRC Bill stipulates that cases successfully handled by the TRC cannot be reopened by the Ad Hoc Human Rights Court. This intention of the TRC as a substitutive, not complementary institution to the courts, outrages victims and fosters their impression of the TRC as a tool to white-wash the past .
However, paragraph 29 enables the TRC to refer perpetrators to the Ad Hoc Human Rights Court if in the eyes of the commissioners they did not satisfyingly confess the truth. This gives rise to the hope that if the TRC is comprised of individuals with a positive attitude towards the human rights movement, it will make use of this stipulation .
Confusion is expected to arise about the TRC’s authority to handle cases that are already investigated by KomnasHAM, or where KomnasHAM has already submitted its report to the Supreme Court, such as the case of the May ’98 riots .
5. Investigation & Amnesty
Two main concerns were raised concerning the investigative task of the TRC: first the method, reliability and scope of the research; second any unlikely cooperation of parties, especially perpetrators of human rights violators.
Some victims were concerned that the TRC might only aim to obtain superficial information like names, time, numbers of victims and the circumstances of a particular human rights violation, i.e. that the TRC will ask ‘who, when, how much, and what’, but not ‘why’ the incident took place. This can be understood as a demand from the TRC to address the historical circumstances and the wider political context in which human rights violations took place, which is seen as a precondition to achieve thorough reconciliation and historical rectification .
In this regard, it is important to bear in mind the possibility of groups in favor of the Indonesian status quo trying to manipulate the research results of the TRC by deliberately giving false testimonies, for example testifying ‘violence of the PKI’ to consolidate the narrative of the PKI as a violent threat to the Indonesian society prior to 1965. Similar groups, for example Aliansi Antikomunis are expected to threaten actual victims or witnesses to prevent them from testifying. Hence, the TRC needs methods and criteria for the verification of the reliability of informants.
Moreover, it will have to be watched which issues the TRC decides to investigate, whether these are the issues that lie at the heart of the Indonesian transition. By no means, for example, it should be taken for granted that a TRC will include the 1965-incident in its agenda, since in Indonesia. it is not recognized as a violation of human rights, and would first have to be designated as such by the TRC. Moreover, a status quo-oriented TRC member might only want to investigate the violence committed by, but not against (alleged) PKI-members .
The second issue that perpetrators of past human rights violations, especially those in high positions and responsible for coordinating violations, are unlikely to cooperate with the TRC, was a concern uttered by all interviewees. NGOs have collected information about ‘petty’ human rights violators in the past, and the TRC could draw on this evidence for its investigations. However, evidence about large scale perpetrators is scarce, many documents were destroyed or purposely lost, and it is unlikely that perpetrators will testify, nor that institutions like the TNI will surrender sensitive documents to the TRC. Even though the TRC has the power of subpoena, it is expected that it will not be able to force perpetrators to cooperate, since, in cases of non-compliance with the TRC’s request for testimonial, they do not have to fear legal sanctions or the law enforcement agencies, as the judicial system is weak and easily bypassed by powerful perpetrators. A precedence was General Wiranto’s non-cooperation with Komnas HAM during its investigations of the May ’98 riots, where Komnas HAM achieved subpoena through the courts, but this did not compel Wiranto to testify in front of Komnas HAM. Moreover, the TRC does not have the means to protect a cooperative perpetrator from assaults from his/her own group, for example TNI.
The amnesty provision of the TRC Bill was not seen as an incentive for perpetrators to cooperate with the TRC. Unlike in the case of South Africa, where the TRC had more authority, the Indonesian version stipulates that amnesty recommendations shall be made to the DPR and the President who then decide in a lengthy process about the granting or denying of amnesty. Hence, at the time of confessing, there is no guarantee for a perpetrator the he/she will receive amnesty . Moreover, leaving it with the DPR and the President makes the decision over amnesty a political process open to ‘horse trading’, political bargaining and corruption.
Only one NGO appeared to be optimistic that it is possible to develop “smart mechanisms” to force perpetrators to cooperate with the TRC. These should be developed and carried out in cooperation with the police and Komnas HAM. Political support of the president for the TRC was seen as a requirement for this.
Other NGOs are less optimistic about possible cooperation of the perpetrators, and therefore stated that the efforts of NGOs and the TRC in the truth finding and reconciliation process should focus on the victims of human rights violations, a stance that Elsam takes as well, despite their optimism. However, while Elsam hopes that through the victims, names of perpetrators can be obtained and they can subsequently be pressured to testify in front of the TRC, other NGOs stressed that the cooperation of the victims with the TRC is not guaranteed either, for many fear to be targeted if they do so. Moral and legal support from NGOs, as well as the enactment of the Victims and Witness Protection Bill, are important in this matter.
5. Compensation, Restitution and Rehabilitation
The most frequently mentioned criticism of the TRC Bill was the linking of a victims’ forgiving his/her perpetrator and the eligibility for compensation, restitution and rehabilitation (CRR) in paragraph 27, which outrages the victims and deprives them of their genuine right to CCR .
A second unresolved question is the criteria for CCR, which has yet to be established by the sub-commission for amnesty. According to some victims, compensation and restitution should not only be monetary. South Africa was mentioned as a model case. Moreover, CCR is only to be given after a case is ‘solved’, which might mean a substantive delay in the transfer of CCR.
There seem to be many different understandings of what is meant by the term. Victims seem to have developed an aversion against it, because they seem to believe that for the Indonesian government and other societal groups, reconciliation is equated with unconditional forgiveness and a forgetting of past human rights abuses. From this angle, to some of the victims, the TRC with its loopholes and weaknesses looks like a tool of burying the past and consolidating impunity for the perpetrators of human rights abuses. For victims, however, that justice is done to the perpetrators and that the historical narratives of events like the 1965-incident are rectified seems to be a precondition for forgiveness to and reconciliation with the perpetrators .
Contrastingly, other societal groups, especially religious groups (NU), by and large oppose the idea of a TRC, i.e. the re-investigation and judging of past human rights abuses. However, their cooperation is crucial for successful reconciliation.
Before reconciliation initiatives are conducted by NGOs or the TRC, a clear understanding of the meaning of ‘reconciliation’ would have to be developed. According to one organisation, it must be seen as a social process, not as a question of single individuals forgiving each other. Achieving reconciliation at the grassroot level, where perpetrators are still respected, would be a great success for the TRC. Maybe, other NGO’s experiences from the conducting of grassroot reconciliation a basis for such activities, and certainly, it is desirable that NGOs share their experiences in this field with the TRC. Especially since so far, the TRC Bill does not clearly define and regulate how reconciliation is to be conducted, especially for massive cases like the 1965 incident . Hence the regulations the TRC itself issues on this matter should be monitored and, if possible, positively influenced.
This section touches on several other issues that have been raised but do not full under any of the main categories above
One problem that was mentioned is that the Bill lacks a definition of the term ‘perpetrator’, which indicates the general bias of the Bill in favor of the perpetrators, putting most pressure on the victims of human rights abuses .
The most immediate issue that calls for action of NGOs is the question of TRC personnel, in form of commissioners, research and administrative staff. All NGOs who make the TRC a part of their agenda found it crucial that the TRC is staffed with members from the human rights/NGO-scene, and not from societal groups which are opposed to reconciliation and a reopening of past human rights abuses, so that the commissioners can use the unclarity and high amount of detailed regulatory authority the Bill gives to them in favor of victims of human rights abuses and a just and objective rewriting of the recent Indonesian history. Groups are currently in the process of conducting forums with different societal segments, such as human rights victims, professionals, academics etc. in order to identify potential TRC-members that enjoy high trust of society and then propose these individuals as commissioners to the selection committee which is to be established to choose the members of the TRC .
Another issue that has to be monitored carefully is the allocation of budget to the TRC, since the Bill only features a general stipulation that the budget is going to come from the national budget and ‘other sources’, but does not state a concrete figure. Budget allocation might easily be used as a means to delay and make the work of the commission more difficult, as precedented for example by the Komnas HAM investigation into the May ’98-riots, when the delivery of wages and facilities was delayed by two months, thereby de facto shortening the granted research period of six months to four months .
Also, it is problematic that the Bill does not at all address how the work of the TRC is going to be publicized, which is crucial for it to achieve a nation-wider debate about the past regime of Suharto, about its human rights abuses and about the prevention of similarly abusive regimes in the future, which is desired at least by the NGO community. It is important that the public has access to data and reports of the TRC, so that its work is transparent at all stages and therefore can serve as a tool of political education and rewriting of the recent history. So far, the TRC lacks regulations providing for transparency. One related issues is the question of media coverage. Should all hearings of the TRC be broadcasted, is this desirable and possible, legally as well as technically, and how should it be done? Again, the TRC has much regulative authority at its hand in this matter.
Lastly, the TRC seems to be designed to only address violations of political and civil rights, but not of social, economic and cultural rights, which is certainly a lack in a country where past and present disputes over land rights and violations of these are extremely pressing .
8. Strategies Towards the TRC
Judging from the interviews conducted, it seems that the NGO-community is divided along two different strategies towards the TRC, although were seen complementary to each other by discussion partners. It remains to be decided which of these strategies AHRC wants to support or whether it wants to support both, and what means and possibilities of support are available.
The first strategy aims to improve the existing TRC Bill and assist the TRC in its activities once it is formed. To improve the Bill, groups pursuing this strategy are planning to push for a judicial review of the Bill by the Constitutional Court, which of course can only force a change of the Bill in regards to those parts of the Bill which are in contradiction with the constitutions, e.g. the basic rights of victims. Once the TRC is formed, it is deemed important to provide commissioners and staff of the TRC with the expertise necessary to conduct its work justly and effectively, for example through workshops and seminars, as well as constant monitoring of the work of the TRC. In the sharing of expertise, as well as monitoring and pressuring the TRC to conduct its work effectively, the involvement of international NGOs is seen to be crucial
The second, more realist strategy, is followed by those NGOs which initially rejected the TRC Bill as a whole. This stance was an outcome of the deliberations of the umbrella committee SKKP-HAM, formed as a response to the TRC . However, it is unclear how far the collaborations under this umbrella are continued. The NGOs pursuing the ‘realist strategy’ are the majority of the NGOs interviewed. In view of the weaknesses of the existing Bill, they seem to accept the TRC as an ‘unavoidable reality’ rather than a potential tool of coming to terms with the past, and thus plan to conduct or continue independent research into past human rights abuses and reconciliation on their own initiatives. One group for example plans seminars at the grassroot level to socialize the debate on the crimes of the past regime and educate people about the importance of bringing to justice the perpetrators and upholding the memory of past wrongdoings. The TRC will be part of these discussions which are supposed to address the various means of addressing past crimes, among the TRC is only one. This is not meant as a boycott of the TRC, since cooperation with it is still seen possible, but rather a reaction to the obvious weakness of the TRC and the perceived lack of power on part of the NGO-community to change the law through lobbying and campaigns.
The victims community seems to be similarly divided. Jakarta-based groups that conducted several discussions with victims in the countryside found that they are hardly aware of the developments regarding the TRC, hence their decision to focus on the promotion of the debate at the grassroot level.
With regards to the victims of the 1965-incident, there is conflicting information. According to one organisation, the victims are planning a judicial, while others prefer to focus on other measures of promoting justice, e.g. bringing the 1965-incident before the UNCHR, and pushing for a trial of Suharto .
Victims are said to be generally willing to cooperate with the TRC, which they see as a practical solution to their concerns, i.e. recognition of their status as victims, truth, and compensation, since the 1965-incident happened long ago and they doubt that sufficient legal evidence for trials can be obtained . However, community of victims of the 1965-incident, is apparently very divided, so that this information needs to be substantiated. The division makes it likely that both, support and opposition for the TRC, exist in this community.
On the other hand, victims might be reluctant to cooperate with the TRC because of fears that they will be persecuted and discriminated if they do so. Out of this consideration, one group stated that it is most important to support the victims in and push them to confess before the TRC, so that at least official documentation of their cases can be achieved .
Generally, most NGOs, seemed to be unclear about the detailed contents of their strategies and activities towards the TRC. Upcoming NGO forum discussions on the topic were hoped to bring more clarity and coordination.
Posted on 2005-04-11