|Subject: JP editorial/Retroactivity Amendment:
A far-reaching oversight
Jakarta Post Monday, August 21, 2000
A far-reaching oversight
Confusion is perhaps too mild a word to describe the situation that has arisen in the wake of the publication of the amendments to the Constitution which the People's Consultative Assembly (MPR) passed on Friday.
But even as activists decry the continued military presence in the MPR as constituting, in effect, a betrayal of the nation's aspirations for democratic reform, of more immediate concern is the constitutional amendment that prohibits the retroactive application of any state law. A person cannot be tried for any crime or offense under a law that was nonexistent at the time the crime or offense was committed.
Of course, for the legal system to operate under such a principle is commonplace in any democratic country where the rule of law and human rights are respected. The problem in this case, however, is that the constitutional amendment passed on Friday does not specifically say to what categories of crimes or offenses it applies and what categories, if any, it excludes.
The amended article states that "the right to life, the right to be free from torture, the right of freedom of thought and consciousness, the right of religion, the right not to be enslaved, the right to be recognized as an individual before the law and the right not to be prosecuted based on a law which can be applied retroactively are human rights that cannot be diminished under any condition."
Little wonder that legal aid and human rights activists have lambasted the MPR for passing an amendment that could prevent human rights offenders from being prosecuted under Indonesian laws, even as they protect ordinary citizens against arbitrary acts by the state. Luhut Pangaribuan, who is a member of a team of experts monitoring the government's investigation into human rights abuses committed in East Timor, said since Indonesia had no law of its own to try war crimes or crimes against humanity, it now would have to face the probability of an international tribunal handling the East Timor case.
Past human rights abuses, it must be noted, occurred not only in East Timor. Mass killings of communist sympathizers are believed to have occurred in many areas in Java in the wake of the 1965 abortive coup. Similarly, gross human rights abuses have occurred until quite recently in Aceh. Even in Jakarta, prodemocracy activists have been kidnapped and tortured and student protesters have been killed by gunshots. Many of those who were kidnapped still remain missing to this day.
The perpetrators of all those crimes are now likely to remain free, thanks to the amended Article 28I of the Constitution -- which some analysts see as proof that the Indonesian Military (TNI) is still quite powerful despite its reduced stature in politics. The question is, how can such a foul-up have occurred?
When reproached over the issue by the chairman of the Committee for Missing Persons and Victims of Violence, Munir, MPR Speaker Amien Rais conceded that the introduction of the amendment was an oversight that went unnoticed by many legislators. He admitted that he was not really aware of the legal issues involved in the constitutional amendment. Leaders of the commission assigned to discuss the amendment also were people with little knowledge of legal and human rights issues.
It will be interesting to see how the country's legal experts and practitioners of law will go about trying to solve this complication. A valuable lesson that can be drawn from this occurrence is that decisions concerning issues of fundamental importance such as human rights should not be taken lightly or in haste. The Constitution, being a document on which the country's entire legal system is based, is too important an instrument to be treated lightly.
In the future, where necessary, members of the Assembly would do well to consult experts in related fields before such decisions are taken. The MPR will be in session again next year. But since the Assembly obviously cannot amend the Constitution every year, it probably will not be until 2004 that the oversight can be corrected.
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