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Indonesia: Constitutional Court strikes down flawed Truth Commission law

International Center for Transnational Justice Press release - December 8, 2006

Decision presents opportunity to address legacy of impunity

Jakarta/New York – The decision by Indonesia's Constitutional Court to strike down a deeply flawed law establishing a Truth and Reconciliation Commission (TRC) is a significant first step toward affirming the rule of law and defending the rights of victims, the International Center for Transitional Justice (ICTJ) said today. By deeming the law unconstitutional, the Court has prevented the granting of amnesty to perpetrators of serious human rights abuses and reaffirmed victims' rights to reparations.

"We are encouraged that the Constitutional Court has taken such a strong position on legislation that was significantly flawed from its inception," said Paul van Zyl, Executive Vice President of the ICTJ and one of the first foreign experts to deliver testimony before the Court in an effort to lobby against the law. "The real challenge that Indonesia now confronts is how to ensure that victims secure the justice, truth, and reparations they deserve."

After months of deliberation, the Constitutional Court declared that provisions of the TRC law violate Indonesia's obligations under international law, the Indonesian Bill of Rights, and domestic human rights laws. The decision comes after two years of legal challenges brought before the Court by six Indonesian human rights and victims groups who – since the law was passed by the Representative Assembly of Indonesia in September 2004 – have argued against two of its most worrying provisions. One granted the TRC the power to award amnesties to perpetrators of past crimes and barred victims from taking any future legal action against them. The second made the provision of reparations to victims contingent upon the signing of a formal statement exonerating their perpetrators.

In an amicus curiae brief submitted to the Constitutional Court in July 2006, the Center's Paul van Zyl, accompanied by international legal experts Doug Cassel and Naomi Roht-Arriaza, further argued that the law would contravene international legal obligations and standards.

The Court's decision has significant implications for the Indonesian and Timorese people who have long suffered the cumulative effects of Indonesia's state-sanctioned impunity. The serious crimes process in Timor-Leste and the ad hoc trials in Jakarta are both striking examples of efforts that have been undermined by the Indonesian government's lack of commitment to delivering genuine accountability for past abuses. In light of this unaddressed legacy and the persisting need to provide justice for victims, the ICTJ believes that the Constitutional Court's decision must be followed by credible and comprehensive efforts to uncover the truth, promote justice, and ensure reparations for victims.

"This decision should be used as an opportunity to set Indonesia on the right path, not as an excuse to sidestep efforts to promote accountability," said Galuh Wandita, head of the ICTJ's Indonesia Program. "The law was flawed because it violated the rights of victims, but dispensing with the TRC won't change the fact that those victims and their families are still waiting for truth and justice. If the government fails to pursue a credible effort to tackle past abuses, this decision will be nothing but a hollow victory and will merely serve as a continuation of the impunity that has plagued Indonesia for decades."

Recommendations

The Center urges that the process of establishing a new TRC begins immediately and that it adheres to the following priorities:

TRC mandate must explicitly state the period, perpetrators, and crimes under investigation. An explicit mandate would help establish patterns and the systematic nature of certain serious violations rather than presenting past crimes as exclusively isolated incidents committed by individuals.
TRC legislation should explicitly reject the possibility of amnesties. Amnesties for gross violations of human rights contravene accepted international standards and perpetuate cycles of impunity by allowing perpetrators to walk free under the guise of "reconciliation".
Protection of victims and transparency of TRC proceedings should be increased. The TRC should make robust efforts to protect victims during the proceedings, particularly because many perpetrators remain at large and hold positions of influence and power. The TRC law must also clearly establish the extent to which proceedings will be made public to reduce confusion, increase participation, and foster public confidence in the truth-seeking process. The law must also commit the TRC to publishing and making publicly available a final report that would include comprehensive recommendations to the government.
TRC staffing process must be open and fair. The TRC should be staffed by people who have proven reputations of integrity, legal skill, and who are not implicated in past abuses, with a fair representation of gender and regional diversity. The selection process must therefore be public and not left to the decision of the president or a private panel of decision-makers.
The TRC must urgently craft a comprehensive reparations package for victims and their families and make clear its criteria for issuing such awards. Previous legislation which made reparations to victims conditional on exonerating perpetrators placed an unnecessary burden on victims by forcing them to forgive in order to receive financial awards owed to them by the government. Future legislation must ensure a transparent and fair process for determining reparations that is completely independent from any formalized forgiveness and amnesty provisions. Non-monetary reparations should also be explored, such as communal development projects, health care, and other social benefits.
The TRC should be granted power to recommend future prosecutions. In line with the tenet that amnesties subvert accountability efforts, the TRC should reserve the power to recommend prosecutions for certain categories of violations, particularly crimes against humanity, including enforced disappearance and torture.

Background

In 1998, Indonesia began a political transition after 33 years of widespread human rights abuses committed by the armed forces and other groups under the "New Order" regime led by General Soeharto. Amid a deepening financial, economic, and social crisis, Soeharto stepped down in May 1998 in favor of his vice president, B.J. Habibie, who was succeeded in 1999 by Abdurrahman Wahid. Both Habibie and Wahid made some progress in the areas of democratization and human rights, including giving Timor-Leste the opportunity to decide its status, sponsoring broad constitutional reforms, and setting up a Human Rights Court. Despite these advances, officially addressing Indonesia's long legacy of abuse continues to be a daunting task.

Under the watch of Megawati Sukarnoputri who assumed the presidency in July 2001, the Human Rights Court prosecuted some of those alleged to be responsible for crimes in Timor-Leste, but overall the trials were seen as biased and ineffective. Despite brokering the successful conclusion of a peace agreement ending a 30-year old conflict in Acheh, current President S.B. Yudhoyono has also failed to promote accountability for the massive violations committed during previous regimes.

For more information contact:

Suzana Grego
Director of Communications
Tel: +1.917.703.1106
E-mail: sgrego@ictj.org

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