Asia Times March 8, 2002

Indonesia going about rights trial the wrong way

By Richel Langit

JAKARTA - Barring the unexpected, Indonesia's long-awaited human-rights trials will kick off next Thursday, with military and police personnel as well as civilian authorities responsible for the bloody violence in East Timor in 1999 taking the defendant's chair.

While the tribunal may herald a new beginning in the country's respect for human rights, the trials are very unlikely to bring to justice those responsible for the killings of tens, or even hundreds, of innocent East Timorese before, during and after the United Nations-organized referendum in 1999, and the destruction of almost 80 percent of the former Portuguese colony's infrastructure.

A corrupt judicial system and ill-equipped state prosecutors and judges, as well as a severe lack of understanding of human rights themselves among Indonesians, raise severe doubts that the trials will see justice served.

The Attorney General's Office has named 18 suspects in the East Timor mayhem, which also drove almost 200,000 East Timorese into West Timor, of whom at least 120,000 are still living in refugee camps. Seven of the suspects have been charged with committing gross human-rights violations, including genocide, which carries the death sentence. The Central Jakarta Human Rights Court has set Thursday, March 14, as the first day of hearings.

But, even before the trials start, it looks increasingly clearer now that they are merely court exercises designed to clear military and police personnel as well as civilian authorities of their human-rights abuses in East Timor after Indonesia's former 27th province voted to break away from the country.

After already numerous delays, the administration of President Megawati Sukarnoputri is seeking yet another indefinite delay for the first hearing, pending the issuance of two regulations - one on witnesses' protection and another on rehabilitation and compensation. The drafts of the two regulations have been submitted to the office of the president, but until now she has not signed them and there are no indications exactly when she will.

The stakes are very high for Indonesia. The United Nations has vowed to bring the rights violators before an international court if it finds the court proceedings here to be insufficient. If the UN Security Council determines that these ad hoc trials do not bring justice to rights victims, international interference could take place through the creation of an International Human Rights Tribunal on East Timor.

Law No 26/1999 on the Human Rights Court, which serves as the legal basis for the whole rights trial proceeding, does not specifically cover the many issues needed to guarantee a fair trial. The law excludes the possibility of using any other legal process than the country's Criminal Code, which, unfortunately, has some fundamental weaknesses when dealing with gross human-rights violations - that is, it lacks international standards on admissible evidence, testimonies and visum et repertum (seen and discovered), among others.

It also fails to specify extradition arrangements needed to bring witnesses from East Timor, an important point since the trials for criminal cases in Indonesia require a direct witness. The role of the Foreign Affairs Ministry will therefore be crucial, but it has not been involved in the establishment of this tribunal. The absence of a regulation protecting witnesses is likely to prevent human-rights victims or military personnel to come forward and testify against the suspects who are mostly security personnel including three army generals, one police general and several middle-ranking military officers.

Given all these legal loopholes, the quality of the upcoming trials will depend very much on the judges and prosecutors. Unfortunately, however, both the judges and prosecutors were chosen quietly by the Supreme Court and Attorney General's Office respectively, depriving the people at large the opportunity to scrutinize their past track records and affiliations.

The fact is that none of the 17 ad hoc judges has ever been known to have any involvement in human-rights issues. As all of them are university lecturers, neither are they known for their experience in litigation or due legal processes. The chance is they will view human-rights issues purely as an academic exercise. The ad hoc judges are also still new and still have to learn about formalities of court proceedings, but at the same time they are confronted with the people's demands for justice. As the ad hoc judges will be accompanied by about 12 career judges, much of the career judges' time is likely to be spent on lecturing the ad hoc judges on formalities in court trial.

To make matters worse, one of the ad hoc judges once worked as a legal consultant for military and police personnel accused of gross human-rights violations in East Timor and another one is a retired army lieutenant-colonel. And even among the 12 career judges, most of them have experience dealing with human-rights cases, while some have questionable past track records. Furthermore, on the prosecution side, two of the 24 ad hoc state prosecutors appointed by the Attorney General's Office are active military officers.

Against such a backdrop, Indonesia seems to be depending on a child who is still learning to walk when it comes to these trials. Both the ad hoc judges and state prosecutors are inexperienced in regard to a rights tribunal. The judges and prosecutors will have all the excuses they need since a human-rights court is still new in Indonesia. Again, the fact is that the very idea of human rights is still new to most Indonesians.

Regardless of the outcome of the trials, the tribunal will at least put an end to the Indonesian military's (TNI) impunity, thanks to strong pressure from the international community to bring to justice those responsible for the genocide in the former Portuguese colony, which will earn for itself the recognition as the first country to declare independence in the 21st century.

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