Court Throws Out 'Illogical Law' on Rights Tribunal

The Jakarta Post - Friday, December 8, 2006

Ary Hermawan, Jakarta

The Constitutional Court scrapped Thursday an 2004 law mandating the establishment of the Truth and Reconciliation Commission (KKR) because judges said it made no sense.

The surprising ruling further sets back the chances of victims of human rights violations to have their cases resolved and receive compensation.

Eight of the nine judges were of the opinion that articles in the law on the commission were "problematic" and did not encourage people to settle their cases through the commission.

"The aims of the establishment of the commission cannot be achieved because the law that accounts for its legal basis does not give legal certainty. The court rules that the law goes against the Constitution and has to be dropped," presiding judge Jimly Asshidiqque said.

The court ruling has shot down the commission before it was ever established.

President Susilo Bambang Yudhoyono had not yet selected the commission's 21 members, although a team screened and submitted 42 names to him last August. For the delay, Yudhoyono was accused of protecting alleged human rights abusers, especially those in the military.

The judges in their ruling said immunity from prosecution could only be given to people who had admitted to committing rights violations. The right to give immunity was the President's prerogative, not the commission's, they said.

"It is legally illogical if requests for compensation, restitution, rehabilitation and amnesty are filed simultaneously to the body before it has conducted any investigation to discover if gross human rights violation actually occurred," the judges said.

The court's decision to declare the entire law unconstitutional surprised rights activists, who had requested the judges review only three articles in it. These ruled compensation for victims could only be given after perpetrators were granted amnesty and stated resolved cases could not be tried again in other courts.

Asmara Nababan of the Institute for Policy Research and Advocacy (Elsam) said the ruling showed how bad the government and legislators were at law-making.

"They should apologize to the people, especially taxpayers, for having spent a lot of money to make a law that turns out to be against the Constitution," he said.

Activists and victims of rights abuses had hoped that the establishment of KKR would resolve rights cases that had occurred before the 2000 Law on Human Rights Trials was passed.

"I didn't expect this (decision to drop the law)," Nababansaid. However, he said he understood the court's reasons for doing so and respected them.

"What concerns us is the fate of the victims. They have waited for years to see the truth (behind their cases) revealed. Now they have to wait longer," he said.

Suratih, a former teacher jailed for six years without trial for suspected affiliation with the banned Indonesian Communist Party (PKI), said she would continue fighting for justice despite the ruling.

"I know the truth will prevail. If I fail, my children will continue my fight. And if they fail too, the people will take it over," said the 81-year-old, who flew from Surakarta, Central Java, to Jakarta to hear the verdict read.

The judges, however, said the ruling should not prevent the government from finding other legal ways to solve rights abuses.

They recommended it create new legislation that was in line with the Constitution and international law.