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DECISION
Number 006/PUU-IV/2006
FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
Examining, hearing and deciding upon constitutional cases at the first and final level, has passed a Decision on the Petition for Judicial Review on Law of the Republic of Indonesia Number 27 Year 2004 concerning Commission for the Truth and Reconciliation against the 1945 Constitution of the Republic of Indonesia, filed by:
1. Lembaga Studi dan Advokasi Masyarakat (ELSAM) having its address at Jalan. Siaga II Number 31, Pejaten Barat, South Jakarta, Telephone (021) 7972662, 398 99777, in this case represented by Asmara Nababan, S.H., born in Siborong-borong, on the 2nd of September 1946, Christian, Indonesian Citizen, the Chairperson of the Executive Board of Lembaga Studi dan Advokasi Masyarakat (ELSAM);
Hereinafter referred to as -------------------------------------PETITIONER I;
2. Komisi untuk Orang Hilang dan Korban Kekerasan (Kontras) having its address at Jalan Borobudur Number 14, Central Jakarta, in this case represented by Ibrahim Zakir, born in Jakarta, on the 31st of May 1951, Muslim, Indonesian Citizen, the Chairperson of the Executive Board of Perkumpulan Komisi untuk Orang Hilang dan Korban Kekerasan (Kontras);
Hereinafter referred to as ------------------------------------------ PETITIONER II;
3. Solidaritas Nusa Bangsa (SNB), having its address at Perumahan Depok Mulya III Blok AF 3 Tanah Baru, Depok, West Java, Telephone (021) 775 0677 in this case represented by Ester Indahyani Yusuf, S.H., born in Malang, the 16th of January 1971, Christian, Indonesian Citizen, The Chairperson of the Executive Board of Solidaritas Nusa Bangsa (SNB);
Hereinafter referred to as ----------------------------------------- PETITIONER III;
4. Inisiatif Masyarakat Partisipatif untuk Transisi Berkeadilan (Imparsial), having its address at Jalan. Diponegoro Number 9, Central Jakarta, Telephone (021) 319 00627 in this case represented by Rachland Nashidik, born in Tasikmalaya, on the 27th of February 1966, Muslim, Indonesian Citizen, Executive Director;
Hereinafter referred to as ----------------------------------------- PETITIONER IV;
5. Lembaga Penelitian Korban Peristiwa 65 (LPKP 65), having its address at Jalan. Kramat V No. I C, Central Jakarta in this case represented by Soenarno Tomo Hardjono, born in Solo, on the 24th of November 1934, Muslim, Indonesian Citizen, Chairperson of Lembaga Penelitian Korban Peristiwa 65 (LPKP 65)
Hereinafter referred to as ------------------------------------------ PETITIONER V;
6. Lembaga Perjuangan Rehabilitasi Korban Rezim ORBA (LPR-KROB) having its address at Jalan. Taman Singotoro Number 13, Candi Baru, Semarang, Central Java, in this case represented by Sumaun Utomo, born in Surabaya, on the 18th of August 1923, Christian, Indonesian Citizen, General Chairperson;
Hereinafter referred to as ----------------------------------------- PETITIONER VI;
7. Raharja Waluya Jati, born in Jepara, on the 24th of December 1969, Muslim, Indonesian Citizen, provate entrepreneur, having his address at Jalan. Mede II No. 11 Utan Kayu Utara Matraman, East Jakarta, Telephone (021) 813 8274;
Hereinafter referred to as ---------------------------------------- PETITIONER VII;
8. H. Tjasman Setyo Prawiro, born in Semarang, on the 3rd of March 1924, Muslim, Indonesian Citizen, provate entrepreneur, having his address at Jalan. Raya Pondok Gede No 19, Rt. 015/Rw. 011, Kramat Jati Sub-district, Kramat Jati District, East Jakarta, Telephone (021) 9147026;
Hereianfater referred to as -------------------------------------- PETITIONER VIII;
• Petitioners I to VI are Petitioners in the form of Private Legal Entities;
• Petitioners VII and VIII are Individual Petitioners;
Based on the Special Power of Attorney, dated the 29th of August 2005, the following persons have been authorized, namely:
1. A.H. Semendawai, S.H., LL.M;
2. Asfinawati, S.H;
3. Betty Yolanda, S.H;
4. Chrisbiantoro, S.H;
5. Edwin Partogi, S.H;
6. Erna Ratnaningsih, S.H;
7. Fajrimei. A. Gofar, S.H;
8. Gatot, S.H;
9. Haris Azhar, S.H;
10. Hermawanto, S.H;
11. Ignatius Heri Hendro Harjuno, S.H;
12. Indria Fernida, S.H;
13. Indriaswati D. Saptaningrum, S.H., LL.M;
14. Ines Thioren Situmorang, S.H;
15. Poengki Indarti, S.H., LL.M;
16. Sondang Simanjuntak, S.H., LL.M;
17. Sri Suparyati, S.H;
18. Supriyadi Widodo Eddyono, S.H;
19. Taufik Basari, S.H., S.Hum., LL.M;
20. Uli Parulian Sihombing, S.H;
21. Wahyu Wagiman, S.H;
22. Yusuf Suramto, S.H;
23. Zainal Abidin, S.H;
All of whom are Advocates and Solicitors of the Jakarta Legal Aid Agency, Lembaga Studi dan Advokasi Masyarakat (ELSAM), Komisi untuk Orang Hilang dan Korban Tindak Kekerasan (KONTRAS), Solidaritas Nusa Bangsa (SNB), and Perkumpulan Inisiatif Masyarakat Partisipatif untuk Transisi Berkeadilan (IMPARSIAL), Yayasan Pengabdian Hukum Indonesia (YAPHI), joined together in the Advocacy Team for Justice and Truth selecting its legal domicile at the Office of the Jakarta Legal Aid Agency, at Jalan. Diponegoro No. 74, Central Jakarta, who are acting both individually and jointly;
Hereinafter referred to as ------------------------------------------------ The Petitioners;
Having read the Petition of the Petitioners;
Having heard the testimonies of the Petitioners;
Having heard and read the affidavits of the Government;
Having heard and read the affidavits of the People’s Legislative Assembly of the Republic of Indonesia;
Having heard and read the affidavits of domestic and foreign experts as well as witnesses presented by the Petitioners;
Having heard the testimonies of the National Commission for Human Rights;
Having heard and read the testimonies of the former Chairperson of the Special Committee for the Draft Law on the Commission for Truth and Reconciliation;
Having read the concluding opinion of the Petitioners.
Having read the concluding opinion of the National Commission for Human Rights;
Having examined the evidence;
LEGAL CONSIDERATIONS
Considering that the purpose and objective of the petition is as described above.
Considering that there are three matters to be considered by the Court in this case, namely:
1. The authority of the Court to examine, try and decide upon the petition filed by the Petitioners;
2. The legal standing of the Petitioners to file the petition;
3. The subject matter of the petition regarding the constitutionality of the laws on which a judicial review is petitioned by Petitioners.
With regard to the aforementioned three matters, the Constitutional Court is of the following opinions:
I. THE AUTHORITY OF THE COURT
Considering whereas based on the provision of Article 24C paragraph (1) of the 1945 Constitution of the Republic of Indonesia (hereinafter shall be referred to as the 1945 Constitution), the Constitutional Court has the authority “to examine cases at the first and final level, the decisions of which shall be final, to conduct judicial review on laws against the Constitution, to settle disputes on authorities between state institutions whose authorities are bestowed by the Constitution, to decide upon the dissolution of political parties, and to decide upon electoral disputes”. The provision is restated in Article 10 paragraph (1) of Law of the Republic of Indonesia Number 24 Year 2003 concerning Constitutional Court (State Gazette of the Republic of Indonesia Year 2003 Number 98, Supplement to State Gazette of the Republic of Indonesia Number 4316, hereinafter shall be referred to as the CC Law);
Considering that the petition of the Petitioners is regarding judicial review on Law of the Republic of Indonesia Number 27 Year 2004 concerning Commission for the Truth and Reconciliation (State Gazette of the Republic of Indonesia Year 2004 Number 114, Supplement to State Gazette of the Republic of Indonesia Number 4429, hereinafter shall be referred to as the KKR Law) against the 1945 Constitution, so that the aforementioned petition is within the jurisdiction of the Constitutional Court.
II. LEGAL STANDING
Considering whereas Article 51 paragraph (1) of the Constitutional Court Law (UUMK) stipulates that petitioners in the review of law against the 1945 Constitution are those who deem that their constitutional rights and/or authorities are harmed by the stablishment of law, namely:
a. Indonesian Citizen individuals (including group of people having the same interest);
b. units of customary law communities insofar as still in existence and in accordance with the development of the community and the principle of the Unitary State of the Republic of Indonesia regulated in a law;
c. public or private legal entities; or
d. state institutions.
Considering also that since the issuance of Decision Number 006/PUU-III/2005, the Constitutional Court has determined 5 (five) requirements for the existence of constitutional losses as intended in Article 51 paragraph (1) of the Constitutional Court Law (UUMK) as follows:
a. petitioners must have constitutional rights granted by the 1945 Constitution;
b. such constitutional rights shall be deemed to have been harmed by the coming into effect of a law;
c. the constitutional right losses shall be specific and actual in nature or at least potential in nature which pursuant to a logical reasoning will take place for sure;
d. there is a causal connection (causal verband) between the constitutional right losses and the law against which review is petitioned;
e. there is a possibility that upon the granting of a petition, the constitutional right losses argued shall not come into existence or shall not occur any longer;
Considering that to examine whether the Petitioners have the proper legal standing to file the petition, the Court must observe (i) into which category the Petitioners can be classified, and (ii) which constitutional rights are harmed by the establishment of the KKR Law;
Considering whereas Petitioners I up to VI argued that they are private legal entities, as intended in Article 51 paragraph (1) point (c), however based on the evidence presented, there is no legalization as legal entity issued by the Ministry of Law and Human Rights as required by applicable regulations. On the other hand, Petitioners I up to VI, who claim to have what they call as organizational standing, are only associations, which have not had a status as legal entities in accordance with applicable regulations, so that the Court is of the opinion that the Petitioners can only be classified as individual citizens or groups of individuals having common interests. Therefore, their qualification is similar to that of Petitioners VII and VIII as individual Indonesian citizens.
Considering the Petitioners argued their constitutional rights are human rights not to be tortured, to live, and to obtain equal treatment without any discrimination which are guaranteed by the 1945 Constitution. They argued that the establishment of the KKR Law harm their constitutional rights, because the KKR Law is deemed to provide guarantee, respect and protection for the basic rights of the Petitioners as intended in Article 27 paragraph (1), Article 28D paragraph (1), Article 28I paragraph (2) and paragraph (5) of the 1945 Constitution, especially because Article 1 point 9, Article 27, and Article 44 of the KKR Law provide that the compensation and rehabilitation depend on the granting of amnesty, the provision of which can negate the right to rehabilitation and compensation as human rights which must be unconditionally guaranteed, protected and fulfilled based on the 1945 Constitution and render them uncertain.
Considering whereas Article 1 point (9) of the KKR Law reads as follows: Amnesty shall be the pardon granted by the President to the perpetrators of gross human rights violation by taking into account the considerations of the People’s Legislative Assembly.”
Article 27 of the KKR Law reads as follows, ”Compensation and rehabilitation as intended in Article 19 can be granted if the request for amnesty is granted”.
Article 44 of the KKR Law reads as follows, “The cases of gross violation of human rights which have been disclosed and settled by the Commission cannot be filed again to an ad hoc human rights court”.
The Petitioners argued that the aforementioned articles are contradictory to the 1945 Constitution, as described below:
1. Article 1 point (9) of the KKR Law is contradictory to Article 28D paragraph (1) of the 1945 Constitution, which provides acknowledgement, guarantee, protection, and equitable legal certainty, and Article 28I paragraph (5) of the 1945 Constitution, which stipulates that to uphold and protect human rights in accordance with the principle of democratic constitutional state, the application of human rights must be guaranteed by laws that are in line with the constitution.
2. Article 27 of the KKR Law is contradictory to Article 27 paragraph (1) of the 1945 Constitution, which provides for equal treatment before the law and the government and respect for the law and government, Article 28D paragraph (1) of the 1945 Constitution, which provides for guarantee, protection and equitable legal certainty as well as equal treatment before the law, Article 28I paragraph (2) of the 1945 Constitution which reads, ”Every person shall be entitled to be free from discriminative treatment based on anything and shall be entitled to obtain protection from such discriminative treatment” and Article 28I paragraph (4) of the 1945 Constitution which reads, ”Protection, advancement, upholding, and fulfillment of the human rights shall be the responsibility of the state, especially the government.”
3. Article 44 of the KKR Law is contradictory to Article 28D paragraph (1) of the 1945 Constitution provides for guarantee, protection and equitable legal certainty as well as equal treatment before the law, Article 28I paragraph (2) of the 1945 Constitution which provides that every person shall be entitled to be free from discriminative treatment based on anything and shall be entitled to obtain protection from such discriminative treatment, and Article 28I paragraph (4) of the 1945 Constitution which provides that protection, advancement, upholding, and fulfillment of the human rights shall be the responsibility of the state, especially the government.
Considering Petitioners VII and VIII are individuals arguing that they are respectively victim of abduction and forced disappearance in 1997-1998 and former political prisoner for 14 years for alleged involvement in the G-30-S coup, without being tried before a court of law and being found guilty. Based on an assumption that the KKR Law is contradictory to the aforementioned articles of the 1945 Constitution and harms the constitutional rights of Petitioners VII and VIII especially with regard to Article 28D paragraph (1) which reads as follows, ”Every person shall be entitled to acknowledgement, guarantee, protection, and equitable legal certainty and equal treatment before the law”, Article 28I paragraph (1) which reads, ”The right to live and the right not to be tortured ...”, Article 28I paragraph (4) which reads, ”Protection, advancement, upholding, and fulfillment of the human rights shall be the responsibility of the state, especially the government”, the Court is of the opinion that the aforementioned constitutional rights of Petitioners VII and VIII are deemed as having been harmed by the KKR Law so that the Court can accept them as parties meeting the requirements set forth in Article 51 paragraph (1) of the CC Law. Therefore, Petitioners VII and VIII have the required legal standing to file this petition. Whereas with regard to Petitioners I up to VI, who are acting as social organizations providing advocacy and attention and striving for defending the basic rights of victims of human rights violation and participating in the public hearing with the People’s Legislative Assembly during the discussions of the KKR Draft Law and considering the human rights set forth in the Constitution as their rights and interests as citizens, in accordance with the Decisions of the Constitutional Court Number 002/PUU-I/2003, Number 058-059-060-063/PUU-II/2004 and Number 008/PUU-III/2005, as well as Number 003/PUU-III/2005, the Court is of the opinion that Petitioners I up to VI have the proper legal standing to file the aforementioned petition.
Meanwhile, two constitutional judges, namely H. A. S. Natabaya and H. Achmad Roestandi, are of the opinion that Petitioners I up to VI do not have a proper legal standing to engage in legal proceeding before the Court. This is based on the argument that the claim made by Petitioners I up to VI as associations of acting in their capacity as victims based on the a quo law is not founded, because according to the criminal law the
Petitioners as associations cannot possibly be qualified as victims of gross human rights violation based on Law Number 26 Year 2000 concerning Human Rights Court. Whereas Petitioners VII and VIII, as individuals, cannot also be qualified as victims under the a quo law because the Petitioners do not mean the definition of victim as set forth in Article 1 point 5 juncto Article 1 point 4 of the KKR Law. Moreover, the KKR institution having the authorities to reveal the truth of gross human rights violations has not been established, and especially the authority to conduct investigation and clarification on gross human rights violations is still premature.
III. THE PRINCIPAL ISSUE OF THE PETITION
Considering whereas the arguments in the Petitioners’ petition state that Article 27, Article 44, and Article 1 point (9) of the KKR Law are contradictory to the 1945 Constitution for the following reasons:
1. The provision of Article 27 of the KKR Law renders the rights of the victims to compensation and rehabilitation depending on the granting of amnesty, not on the substance of the case.
2. Amnesty as provided in Article 27 of the KKR Law requires the existence of perpetrators. As the consequence, if the perpetrators cannot be found, it is impossible that the amnesty would be granted, so that the victims are deprived from guarantee for reparation;
3. This provision has placed the victims in an unequal and depressed position because the victims are subject to a burdensome requirement for obtaining their rights, namely depending on the granting of amnesty.
4. The formulation of Article 27 of the KKR Law creates in-equal positions between the victims and the perpetrators and discriminates the victims’ rights to reparation and not to depend on the perpetrators and it also fails to respect the victims suffering from the gross human rights violation.
5. Article 44 of the KKR Law placing the KKR as a pseudo-judicial body closes the access for every person to obtain settlement through a judicial process.
6. The provision of Article 44 of the KKR Law, which does not allow judicial examination by an ad hoc human rights court if the case has been settled through the KKR, deprives citizens of their rights to sue perpetrators of gross human rights violation as set forth in the international law, either international practices or international treaties.
7. Amnesty for the perpetrators of gross human rights violation is a violation of the international law, but the provision of Article 1 point (9) of the KKR Law in the contrary states that amnesty may be granted to the perpetrators of gross human rights violation and therefore this article is contradictory to the legal principles acknowledged by the international community.
Considering whereas to support their arguments, the Petitioners presented documentary evidence marked as P-1 up to P-36b, two witnesses, and six experts the testimonies of which have been described in full in the principal issue of the case, which principally stated as follows:
Witness Testimonies.
1. Witness Marullah:
- Whereas the witness is a victim of torture in the Tanjung Priok case who was detained in Guntur and Cimanggis detention centres, and then relocated to Salemba penitentiary. The witness was tried in a juvenile court and was sent to prison for 20 months less the detention period, the remaining term of 17 months was served in Cipinang penitentiary;
- Whereas the witness is an eye-witness who informed the authorities about the places where the victims killed in the incident were buried, such as in the Pondok Rangon cemetery, Mengkok cemetery, and Tipar Cakung cemetery. The witness is one of 13 victims who received a compensation in the amount of Rp.21,000,000.- (twenty-one million Rupiah).
2. Witness Mugiyanto:
- The witness was an activist of Solidaritas Mahasiswa Indonesia untuk Demokrasi (SMIK - Indonesian Students’ Solidarity for Democracy) fighting for campus autonomy and refusing military intervention in campus. He was abducted on March 13, 1998 from his rented house in Klender at around 19:00 West Indonesia Time by the authorities and was taken to the Duren Sawit Military Post. After being interrogated, he was then taken to the East Jakarta Military District Headquarters;
- The witness was charged with violation of the anti-subversion regulations and detained at the East Jakarta Military District Headquarters, before being transferred to the Headquarters of Jakarta Military Region and then to the Headquarters of Jakarta Regional Police, for three months as from March 15 up to June 6, 1998. The witness was released following the downfall of Soeharto and the revocation of the anti-subversion law by the new president, Habibie;
- The witness is one of nine surviving victims. According to his fellow activists, among those abducted during the period of 1997 – 1998 there were 13 persons who are still missing and one of them was found dead after missing for several days;
- According to the witness, the judicial process on the “Rose Team” did not implicate the perpetrators. It was far from what was expected by the victims, the victims’ families and the witness;
- The witness is very upset because to date despite of the fact that he is a good citizen, people still perceive him as a communist, a rebel and a fundamentalist. As the consequence, the witness has been subject to discrimination, impoverishment and deception. This was an unfair government policy.
Testimonies of Expert Witnesses:
1. Expert Witness Dr. Tamrin Amal Tomagola:
- Whereas omission of human rights is contradictory to the first sentence of the Preamble of the 1945 Constitution and it is the duty of the state to protect the human rights of its citizens;
- Whereas to achieve settlement among the parties involved in order to uphold the national unity of Indonesia and solidarity among all components of the nation, the KKR is expected not to leave behind untreated wounds or a gap and distrust among different groups or components of the nation;
- Actually, the focus and the point of concern of all processes of the KKR should be placed on the victims and their rights, including the right to forgive and to give pardon. The main and ultimate aspect is the victims’ right to give pardon, or, in relation to the President, amnesty;
- Therefore, the right to give pardon belongs to the victims, which must be endeavored through a full mechanism in the KKR to be settled by the parties involved, without any necessary judicial process;
2. Expert Witness Dr. Asvi Warman Adam, APU.:
- Before 1965, political power was dominated by three parties, namely President Soekarno, the Army and the Indonesian Communist Party (PKI). However, conflicts were common at the lowest level of the hierarchy, involving PKI, BPI, as well as their community organizations and Muslim groups. Those conflicts were triggered by unilateral actions;
- On September 30 or October 1, 1965, the balance between Soekarno, the Army and PKI collapsed. Soekarno was gradually cast aside and PKI was alleged of masterminding the incident. Between 1965 – 1966, massacres were rampant in Central Java, East Java and Bali;
- RPKAD troops then trained local youths, especially Muslim youths, which was followed by mass arrests and massacres;
- Indonesia case was very different from the South Africa case, where many of the perpetrators agreed to give their testimonies/confession for obtaining amnesty. They were afraid that they would be brought before the court if they refused to give testimonies or confession;
- If the victims are to receive compensation after the granting of amnesty, there may be a connivance, because the victims want the compensation and they can arrange a compromise with the perpetrators, by not telling the whole story;
- The article that makes the fate of the victims depending on amnesty for the perpetrators is very unfair and impossible to be implemented. The victims’ right to obtain compensation is vested to them and not related to the perpetrators;
- History is again used as an agent of freedom, in this case the KKR provides the opportunity for the victims to tell their stories. This is also a part of psychological healing, namely healing the wounds by telling their past sufferings.
3. Expert Witness Rudi Muhammad Rizky, S.H., LL.M.:
- The Commission for the Truth and Reconciliation has formally met the requirements for such commission based on the Dougatt Principle. The minimum requirement for such a commission is that it is established by the legislative and executive bodies that are elected democratically and such commission must have far-ranging authorities as well as far-reaching mandates;
- Such commission must have the authority to recommend reparation for the victims of gross human rights violation. While perpetrators refusing to cooperate with the commission or refusing to disclose their crimes openly will not obtain amnesty;
- Punishment for the perpetrators is actually an obligation of the mankind as a whole. Whereas victim compensation is only for the benefits of the victims or their heirs;
- One of the basic reasons for establishing the KKR Law is to reveal the truth for the interests of the victims and their heirs to obtain compensation, restitution and rehabilitation. The most important thing is the victims and is related to the obligation on an effective remedy;
- Article 27 of the KKR Law provides for ”compensation and rehabilitation” that can be granted if the request for amnesty is granted. Amnesty must be granted if the perpetrators give their confession of their crimes, actual facts, remorse and agreement to apologize to the victims and their heirs;
4. Expert Witness Prof. Douglas Cassel:
- The KKR Law has failed to fulfill the obligation of Indonesia as a state and failed to respect the rights of the victims, their families and Indonesian people based on the international human rights law in three ways:
First, it has failed to investigate and reveal the truth about any case related to genocide and crime against humanity before 2000;
Second, it has failed to provide reparation to the victims and their families;
Third, it has failed to prosecute and properly punish the perpetrators;
- Indonesia as a member of the UN, based on Articles 55 and 56 of the UN Charter as an international treaty, is responsible for human rights;
- Since 1927, the World Court has stipulated that all states have the obligation to conduct thorough and effective investigations, to provide effective reparation for the victims, as well as to prosecute and punish the perpetrators. The victims have the right to know the truth and are entitled to obtain justice in the form of the prosecution and punishment of the perpetrators;
- The scope of such effective reparation must include not only access to justice, but also the following five elements:
1. Restitution, namely the restitution of the victims’ properties or good reputation;
2. Compensation, in the form of cash money for the losses;
3. Rehabilitation, including medical or psychological care;
4. Satisfactory measures, including acknowledgement by the public that it is the responsibility of the state and also public apology by a high-ranking official;
5. Guarantee that such violation of human rights will not be repeated or recur;
- There is a limitation in the granting of amnesty based on the international law and such limitation is specifically applicable for genocide and crime against humanity, which are the subjects of the KKR Law;
5. Expert Witness Prof. Paul Van Zyl:
- Whereas the currently existing form of the Indonesian Truth Commission fails to meet the standard made by the UN to achieve truth and justice, rather than truth or justice;
- The only KKR granting amnesty for gross violation of human rights is the KKR of South Africa. However, the KKR of South Africa, which allowed amnesty, was an exception, rather than a rule. The reason was that such limitation was made because the apartheid government said that democracy could not arrive in South Africa if amnesty was not given and Nelson Mandela as well as the leaders of South Africa Human Rights movement agreed and gave their constitutional covenants on the amnesty. Therefore, the new constitution of South Africa includes a clause allowing amnesty for perpetrators of gross human rights violation. If such clause was not included in the constitution of South Africa, the Constitutional Court of South Africa would not give its approval on such amnesty;
- Whereas the convention on civil and political rights has been adopted into the domestic law, along with the convention against torture. Article 7 of Law Number 39 Year 1999 concerning Human Rights stipulates that international regulations on human rights which have been ratified by the Republic of Indonesia shall be applicable and legally binding in Indonesia;
- Whereas several articles in the KKR Law constitute violations of the international law, as set forth in the international convention on civil and political rights and convention against torture. Those articles are Article 1 paragraph (9), Article 27, Article 28, and Article 44 of the KKR Law, the articles of which allow the Commission to recommend to the President to grant amnesty to the perpetrators of gross human rights violation;
- The amnesty as provided in the KKR Law is contradictory to Article 6 and Article 2 paragraph (3) of the ICCPR;
- Whereas Human Rights Commission has now been replaced by Human Right Council, and Indonesia has an important role in the council;
6. Expert Witness Prof. Naomi Roht-Arriaza:
- The state is not only required to provide reparation for the victims, but must also ensure or guarantee that at least its national law provides the required protection for human rights in accordance with international liabilities or obligations. The state must also provide effective access to justice for those claiming themselves as victims of human rights violation;
- Based on the international law, the victims of gross human rights violation are the victims whose human rights have been violated. At the time such a crime is committed, those people at the same time have the status as victims. The state will grant to the victims the rights to obtain access to justice and to obtain reparation or reparation.
Those rights are two separated but interconnected rights;
- Amnesty may be granted after a conflict. However, there is a limitation, based on which amnesty cannot be grated for certain crimes. According to the current practices and based on the law, amnesty cannot be granted for genocide or crimes against humanity. This is an international agreement included in various treaties, such as the anti-torture treaty, to which Indonesia is also a party;
- The Truth and Reconciliation Commission of South Africa allows amnesty in return for the truth. However, those who fail to convey the whole truth will be prosecuted;
- The Truth and Reconciliation Commission of East Timor has a procedure for reconciliation in the community as a part of the procedures of the Commission. However, this procedure applies only for minor crimes. There is no such commission in Columbia, but this country has a law on peace and justice, which allows reduction of prison term by five years. In this matter, Columbia only provides the truth and reparation, but does not provide amnesty;
Considering whereas the Government, the People’s Legislative Assembly, the former Chairperson of the Special Committee for KKR Draft Law, and the Chairperson of the National Commission for Human Rights have given their testimonies, in writing and verbally before the court, which are included in full in the explanation on the case and basically state as follows:
1. The Government:
a. Whereas the establishment of the Truth and Reconciliation Commission was a collective initiative which gave an emphasis on "the values of peaceful settlement" of the Indonesian people in the context of the protection and enforcement of human rights. In the past (before the application of Law Number 26 Year 2000 concerning Human Rights Court, hereinafter Law on Human Rights Court), gross violations of human rights were often disregarded or even deemed non-existent, without any examination and investigation on the perpetrators, the victims and the number of the victims.
b. Whereas one of the most important issue in the settlement of gross violation of human rights occurring in the past is that there is a reconciliation between the perpetrators and the victims (Article 29 of the KKR Law), in order to achieve national reconciliation for stabilizing the national unity and integrity as mandated by the Stipulation of the People’s Consultative Assembly of the Republic of Indonesia Number
V/TAP/MPR/2000 concerning Stabilization of National Unity and Integrity.
It is expected that such incidents will not recur in the future, as described in the motto of the Truth and Reconciliation Commission of Argentina saying "Nunca Ma'as" (Never happen again), or that of South Africa saying "to forgive but not to forget";
c. Whereas if the perpetrators give voluntary confession of their crimes, admit the truth of the facts, convey their regret for their crimes and are willing to apologize to the victims or their heirs, but the victims or their heirs refuse to forgive them, the Truth and Reconciliation Commission shall independently and objectively decide the submission of recommendation to the President for granting amnesty. This is intended to avoid protracted settlement of gross violation of human rights, which may finally hamper the achievement of the national reconciliation;
d. Whereas if the perpetrators refuse to give voluntary confession of their crimes, admit the truth of the facts and convey their regret for their crimes, they shall lose their right to obtain amnesty from the President and their cases of gross violation of human rights may be referred to an ad hoc human rights court based on Article 43 paragraph (1) of the Law on Human Rights Court.
e. Whereas if the request for amnesty is refused by the President, this shall not be the end of the efforts to uphold justice on gross violation of human rights occurring in the past, especially for the victims and their heirs. In fact, such refusal of the request for amnesty provides an opportunity for the victims or their heirs to claim for their rights to obtain compensation, restitution and rehabilitation to the state (please refer to Government Regulation Number 3 Year 2002 concerning Compensation, Restitution and Rehabilitation for the Victims of Gross Violations of Human Rights), as the follow up to the provisions of Article 35 of the Law on Human Rights Court;
f. The establishment of the Truth and Reconciliation Commission in various countries has lead to a shift in the concept of justice in settlement of criminal cases, namely from retributive justice/prosecutorial justice to restorative justice/community based justice, which emphasizes the importance of the restorative aspect for those suffering because of the crimes.
g. Whereas lately the UN recommends wider application of the concept of restorative justice in the criminal courts through the United Nation Declaration on the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. This is in line with the purpose and objective of the establishment of the KKR Law, which emphasizes the settlement of gross violations of human rights through the out of court system.
For that reason, it can be concluded that amnesty is the right of the perpetrators showing good faith, who sincerely admit their crimes and apologize for their crimes in the past, whereas compensation, restitution and/or rehabilitation are the rights of the victims or their heirs that must be granted by the state;
2. The People’s Legislative Assembly:
a. Whereas the establishment of the KKR Law was based on the following considerations:
The settlement of gross violations of human rights committed in the past before the Law on Human Rights Court comes into effect is very urgent because dissatisfaction and political friction should not be allowed to persist without any certainty as to the settlement. With the disclosure of the truth about gross violations of human rights committed in the past before the Law on Human Rights Court comes into effect through the Truth and Reconciliation Commission, it is expected that national reconciliation can be achieved. This is also in line with Article 47 of the Law on Human Rights Court, concerning the legal basis for the establishment of the KKR as a means for the settlement of gross violations of human rights, other than the matters under the jurisdiction of the Human Rights Court.
b. Whereas the objective of the establishment of the KKR is to settle past gross violations of human rights outside the court, in order to achieve national unity and amity as well as to create national reconciliation and unity with the spirit of mutual-understanding.
c. Whereas the KKR Law is based on the principles of independence, freedom and impartiality, honesty, transparency and peace;
d. Whereas the provision of Article 27 of the KKR Law, which provides for the granting of compensation, restitution and rehabilitation to the victims or their heirs of gross violations of human rights following the granting of request for amnesty by the President, is intended to create balanced positions of the perpetrators and the victims of gross violations of human rights, which will eventually create the sense of justice in the community. Amnesty is the constitutional right of the President granted by the Constitution (by taking into account the considerations from the People’s Legislative Assembly) as intended in Article 14 paragraph (2) of the 1945 Constitution. Therefore, the victims of gross violations of human rights the perpetrators of which have obtained amnesty are entitled to obtain compensation and rehabilitation from the state;
e. Whereas the Truth and Reconciliation Commission is not intended merely for punishing or pillorying or prosecuting a person, but primarily for finding the truth which in the end will be useful for supporting the restoration of harmonious relationship between the perpetrators, the victims and the people, all of whom are basically victims of the crime;
Justice in the KKR is synonymous with the complete disclosure of all incidents by bringing together and confronting the perpetrators and the victims, while avoiding complicated procedural law. The process of the KKR is intended to avoid the recurrence of similar incidents in the future through a reconciliation process and is not aimed merely at criminal prosecution based on humanity and awareness of the existence of community interdependence;
The protection and restoration of the rights of the victims and the people at large are considered as equally important as the criminal prosecution and/or rehabilitation of the perpetrators.
f. Whereas Article 44 of the KKR Law, which stipulates that cases of gross violations of human rights which have been disclosed and settled by the Commission cannot be brought to an ad hoc human rights court, is not contradictory to Article 28D paragraph (1) and Article 28I paragraph (1) of the 1945 Constitution, because the KKR does not have the function to substitute human rights court under the Law on Human Rights Court. In this matter, the KKR Law does not provide any prosecution procedure, instead it only provides for:
Procedure for the disclosure of the truth;
¬ Procedure for the granting of compensation, restitution and/or rehabilitation to the victims; and
¬ Procedure for the granting of amnesty to the perpetrators;
Therefore, to provide legal certainty, cases of gross violations of human rights which have been disclosed and settled by the Commission cannot be brought to Human Rights Court.
g. Whereas the perpetrators of gross violations of human rights who refuse to admit the truth and their crimes and refuse to show their remorse for their crimes shall lose their right to obtain amnesty and may be brought before an ad hoc human rights court, as set forth in Article 29 paragraph (3) of the KKR Law. Therefore, the provision of Article 29 paragraph (3) can be construed that the KKR Law does not close the access for any person to obtain settlement through a judicial process;
h. Whereas Article 1 Paragraph (9) of the KKR Law provides that amnesty shall be the pardon granted by the President to the perpetrators of gross violation of human rights by taking into account the consideration of People’s Legislative Assembly. It can be explained that universally amnesty in the context of KKR Law has a special meaning and is more measurable. Amnesty in the KKR Law may only be granted to those who are fully admitting their involvement in gross violations of human rights and solely associated with political objectives proportionately;
3. The Former Chairperson of the Special Committee for KKR Draft Law [Mayjen. Pol. (Ret.) Drs. Sidarto Danusubroto, S.H.]:
a. The People’s Legislative Assembly has made every effort to perform the duties mandated by the people in accordance with the mandate of the Stipulation of the People’s Consultative Assembly Number V/MPR/2000 at its best ability, although it realizes that it has not achieved the optimum results to satisfy all interested parties. The final results of the work of the People’s Legislative Assembly (the Special Committee for KKR Draft Law) is deemed to have been better compared to the preliminary draft conveyed by the Government.
b. Two important matters inciting lengthy debates in the discussion of KKR Draft Law were Article 1 Paragraph 1 and Article 5 of the KKR Law concerning disclosure of the truth and Article 27 of the KKR Law. Some parties expressed their ”objection” to the inclusion of disclosure of the truth in the Law, as it would provide for an opportunity to disclose various national problems for which various attempts have been made to ”leave them behind”. Meanwhile, objections to Article 27 were raised by the victims and their families, as this Article 27 can be construed as a means to eliminate the existence of Article 19.
c. When the Special Committee dealt with Article 27, there were about 15 victims’ organizations expressing their objection to this article, including Forum Komunikasi Eks Menteri Kabinet Dwikora Korban Penyalahgunaan Supersemar, Tim Advokasi Jajaran TNI AD, Tim Advokasi Jajaran TNI AU, Tim Advokasi Jajaran TNI AL, Tim Advokasi Jajaran Polri Paguyuban Korban Orde Baru, Lembaga Perjuangan Rehabilitasi Korban Rejim Orde Baru, Solidaritas Korban Pelanggaran HAM, Komite Aksi Pembebasan Tapol/Napol, Lembaga Penelitian Korban Peristiwa '65 Bali.
The objection or refusal to the provision of Article 27 of the KKR Law conveyed by the victims and agencies fighting for the victims’ rights was acceptable. However, political constellation existing at that time forced the factions in the People’s Legislative Assembly to accept the formulation of Article 27 of the KKR Law as it is now. The approval of the People’s Legislative Assembly to this article was some kind of a compromise to avoid protracted discussion on the KKR Draft Law that would lead to a deadlock, and there was a concern about the diminishing number of surviving witnesses, so that the existence of the KKR would no longer be significant as it would have lost the momentum. Therefore, when the KKR Draft Law was ratified, most of the members of the Special Committee were of the opinion that the objection raised by unsatisfied parties can actually be accommodated by the existing instruments, such as submitting ”Judicial
Review Petition” to the Constitutional Court, as what they are doing now.
d. According to Article 44, cases of gross violation of human rights which have been disclosed and settled by the Commission, cannot be filed again to an ad hoc Human Rights court.
Gross violations of human rights constitutes ”extraordinary crimes” so that they cannot be settled using the available legal provisions, such as Indonesian Criminal Code, but must use ”special treatment”. Therefore, in accordance with the mandate of Article 104 of Law Number 39 Year 1999 concerning Human Rights, a Law on Human Rights Court has been established, which is expected to be able to protect Human Rights
of individuals and the people, and serves as a basis of law enforcement, legal certainty, justice, and secure feeling, both for individuals and the people, from gross violations of Human Rights.
In addition to Ad Hoc Human Rights Court, the Stipulation of the People Consultative Assembly Number V/MPR/2000 also mentions about the need to establish a Truth and Reconciliation Commission, as an extra-judicial institution having the duty to uphold the truth by disclosing power abuses and Human Rights violations occurring in the past, in accordance with the applicable laws and regulations and pursuing reconciliation in the context of national interests.
The first issue to be agreed upon by all parties was that reconciliation, which also includes national reconciliation, constitutes a mandate of the Stipulation of the People’s Consultative Assembly Number V/MPR/2000 concerning Stabilization and National Unity, which is followed up by the application of the Law on Ad Hoc Human Rights Court, and forms a part of the implementation of constitution order to all state officials, in line with the purpose and objective of the Amendments to the 1945 Constitution of the Republic of Indonesia, particularly Article 28A – 28 J concerning Human Rights (HAM).
4. National Commission for Human Rights represented by Abdul Hakim Garuda Nusantara, S.H., LL.M.:
a. Whereas, Law Number 39 Year 1999 provides for Human Rights court, however this Human Rights Court issue is stipulated further in the Law on Human Rights Court.
b. Whereas, violations of human rights occurring in the past can be settled through two legal avenues, in order to achieve justice. The first avenue is through the ad hoc Human Rights Court, the establishment of which is based on the proposal of the People’s Legislative Assembly to the President, and then the President would issue a Presidential Decree. The second avenue is through the KKR.
c. If it is true that the case contains an uncontestable truth, the compensation and rehabilitation cannot be related to the granting or refusal of amnesty by the President.
d. Amnesty cannot used as a requirement for the granting of compensation and rehabilitation because amnesty is a separate process and conditional in nature. Article 29 Paragraph (2) of the KKR Law states, ”In the event that the perpetrators give voluntary confession of their crimes, admit the truth of the facts, convey their regret for their crimes
and are willing to apologize to the victims or their heirs, but the victims or their heirs refuse to forgive them, the Truth and Reconciliation Commission shall independently and objectively decide the submission of recommendation to the President for granting amnesty.” Therefore, making decisions independently and objectively cannot be related to the compensation and rehabilitation, as compensation and rehabilitation are the responsibility of the state and relates to the facts found by the Commission for the Truth.
e. With regard to the Article 44 of the KKR Law which provides that in the cases of gross violation of Human Rights which have been disclosed and settled cannot be filed again to an Ad Hoc Human Rights Court, the petitioners are of the opinion that the provision is contradictory to Article 27, Article 28D, and Article 28 of the 1945 Constitution. Article 44 is a logical consequence of the concepts set forth in Article 29 Paragraphs (2) and (3). Amnesty may only be granted by the President, and be recommended by the KKR to the President if the requirements have been met.
f. If the KKR is processed through an ad hoc Human Rights Court, the ad hoc Human Rights Court will be held when the request for amnesty is refused. With regard to this matter, Article 7 Paragraph (1) point 9 of the KKR Law provides that in performing the duties as set forth in Article 6, the Commission has an authority to reject the request for compensation, restitution, rehabilitation, or amnesty, if the case has been filed to a human rights court. Therefore, the refusal of requests for compensation, restitution, rehabilitation, or amnesty is depending on whether the case has been filed or not to a Human Rights Court.
g. If a gross violation of Human Rights cannot be settled through the KKR, it can be settled through an Ad Hoc Human Rights Court. However, it is more appropriate to settle certain gross violations of Human Rights through the KKR.
THE OPINION OF THE COURT
Considering whereas before entering the case substance, basically the decision of the legislators determining reconciliation policies as one of settlement to gross violations of Human Rights occurring prior to the issuance of Law on the Human Rights Court, is not merely a political decision, but it is also a legal mechanism set forth in the KKR Law. As the consequence, assessment on this matter is conducted specifically from the aspects of legal and constitutional principles, including philosophy and viewpoint of the nation constituting the spirit of the 1945 Constitution. In addition, the adoption of Section XA as a part of the 1945 Constitution in the second amendment to the 1945 Constitution made in 2000, which also provides for guarantee and protection of Human Rights, also leads to the condition where the review on the constitutionality of the KKR Law is based on the guarantee and protection of Human Rights as provided in the 1945 Constitution, in which considerations will be given to its consistency with the guarantee and protection of Human Rights provided in the 1945 Constitution.
Considering whereas as a nation claiming that its national and state philosophy is based on Pancasila as legal aspirations (rechtsidee) and state aspirations (staatsidee), the open mindness and openheartedness to observe this issue must be in the context of the broader interests of the Unitary State of the Republic of Indonesia, with the purpose of investigating gross violations of Human Rights in order to disclose the truth, uphold justice and adapt to establish respect for Human Rights, so that reconciliation and national unity can be achieved. This must be done by applying an appropriate approach, by previously obtaining more objective comprehension of the conflicts, despite of the necessity to take possible serious risks, in
Posted on 2007-02-26
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