2004 is a super-election year in Indonesia: On April 5th, Indonesians were called to the polls to vote into office Members of Parliament on all administrative levels. Three months later, the country is scheduled to see its first direct Presidential and Vice Presidential elections – or more precisely: the first round of the same. If during this first round of voting no candidate duo receives more than 50 percent, Indonesians will have to exercise their voting right a third time another three months later.
Does this mean that Indonesia is doing pretty well in its democratic transition? When taking a closer look at recent developments, doubts as to this interpretation quickly emerge. In the official vote tally – the election results will not be known before the end of April – the ruling party under the Suharto regime, Golkar, is currently in the lead. With its roughly 21% it has overtaken the party of the incumbent President Megawati Soekarnoputri, the Indonesian Democratic Party – Struggle (PDI-P), whose support has dropped from 33,7% in 1999 to roughly 19,5% in the official vote tally to date.3 One of the upstart parties that profited from the loss of the PDI-P is the Democratic Party, the support base for the popular Presidential candidate, General (ret.) Susilo Bambang Yudhoyono, who had until his recent resignation been Coordinating Minister for Political Affairs and Security in Megawati’s Cabinet. The former ruling party Golkar had decided to have its official Presidential candidate elected by a party convention. Among the candidates that made it to the last round were: 1) the current Head of the national Parliament and Golkar Chairman Akbar Tandjung whose conviction to a three year prison term for corruption had under much criticism only recently been overturned by the Supreme Court;4 2) the ‘singing general’5, former Defence Minister and Commander-in Chief of the Armed Forces, General (ret.) Wiranto, who is facing charges of crimes against humanity; and 3) Suharto’s son-in-law, retired Army Lieutenant General Prabowo Subianto, who has admitted to being responsible for kidnappings of pro-democracy activists.6
Shortly before Golkar’s decisive vote, Akbar Tandjung caused a stir in the media when he announced that he was thinking about making the current Commander-in-Chief (C-in-C) of the Indonesian Armed Forces, Endriatono Sutarto, his official Vice Presidential running mate.7 The next day, the results of Golkar’s party internal elections were announced; human rights and pro-democracy activists (among others) were stunned and voiced great concern when it became known that Wiranto had won the race.8 It might be remembered that General Wiranto had been C-in-C during the time of the referendum on East Timor’s independence. At least 1,300 people were killed in the lead-up and the aftermath of this crucial event. Whereas Wiranto never had to face charges in Indonesia,9 he has now in East Timor where the UN-backed prosecution authority, the Serious Crimes Unit, has filed an indictment on charges of crimes against humanity. The decision to issue an international extradition warrant is still pending10, in the US, Wiranto is, however, already on the visa watch list.11
Thus, apart from the incumbent President Megawati, whose support is waning as can be seen from the election results, and other candidates with less prospect to win, two former generals are entering the Presidential race. The chances are not bad that one of them will become Indonesia’s sixth President. At present, the more likely outcome seems that Susilo Bambang Yudhoyono12 who is considered to be a Wiranto protégé will beat his senior.
The above is indicative for at least three trends in Indonesia six years after the fall of the long-term authoritarian ruler General Suharto: First and foremost it demonstrates the important standing military figures enjoy in politics – this regardless of the fact that the security forces have eventually relinquished their seats in Parliament. The power of the security forces seems to be constantly on the increase, a tendency especially strong since the declaration of martial law in Aceh in May 2003.13 Secondly, it hints at the deplorable state of the Indonesian justice system. Indonesian judicial reality is still a far cry from the constitutionally stipulated rechtsstaat or constitutional state under the rule of law. And thirdly, it can be seen as yet another manifestation of the tendency that key features of the Suharto regime are resurrected albeit in a garb which is adapted to the new – national and global - fashion trend.
Below it shall be shown how the mentioned restorative trends are mirrored
in recent legislation. However, before we turn to the same, some (initially)
encouraging trends after the fall of Suharto shall be sketched.
Encouraging developments after the fall of Suharto
In the ensuing era reformasi after the resignation of General Suharto on May 21st, 1998, Indonesia witnessed a number of positive developments such as a hitherto unknown press freedom, a mushrooming of new political parties, relatively free and fair Parliamentary elections in June 1999, a working Parliament, the separation of the police from the military, trials before newly established Human Rights Courts, the abolition of the notorious Anti-Subversion Law, the enactment of new human rights legislation, the end of indoctrination with the state ideology Pancasila (lit. ‘Five Principles’)14 and of the latter being regarded as the ‘source of all sources of law’.
The manifestation of steps towards more democratic rechtsstaat in Indonesia is predominantly found in the Four Constitutional Amendments enacted since 1998. These codify amongst others a long catalogue of provisions on human rights, stipulate that Indonesia is a rechtsstaat and the judiciary an independent power, determine the establishment of a Constitutional Court no later than August 2003, provide for direct Presidential and Vice Presidential elections and contain numerous other important provisions on the political system.
However, in order for the Basic Law15 not to end up as a paper tiger, implementing legislation is necessary – implementing legislation that is, which does not subvert the constitutional stipulations in its small print as had been a pattern in Suharto-era legislation.16 Already the original 1945 Constitution had declared Indonesia to be a rechtsstaat, if only in its Elucidation17 - with not much of a consequence when it came to New Order judicial reality.
Three areas of legislation shall concern us in following. Therein, I
hold, one can see the old pattern of circumscribing and subverting constitutional
supporting principles in implementing legislation continued. And therein
we also see the above mentioned trends manifest: The increasing strength
of the security forces is mirrored in attempts to subvert the Human Rights
Courts Law as well as in the new anti-terrorism legislation and deliberations
on new security legislation. The latter are at the same time the most obvious
examples for attempts to resurrect key features of Suharto’s New Order
system. Moves to circumscribe the authority of the new Constitutional Court,
potentially an institution to implement the constitutional
stipulation, are manifest in the Law on the Constitutional Court. I chose
to close this article with focussing on a glimmer of hope and shall end
with a portrayal of the new Court in action.
Ending or continuing impunity? - The new Human Rights Courts Law and related legislation
The violence perpetrated at the time of the referendum on the independence of East Timor will still be in the reader’s memory. How many people were killed before, during and after this crucial date in East Timorese history, August 30th, 1999, will probably never be known. United Nations sources estimate their number to be at least 1,300.18 Already months before the so-called popular consultation, pro-Indonesian militias, created and equipped by the Indonesian military, had launched a terror campaign. Numerous massacres were perpetrated. The violence climaxed when the outcome of the referendum became clear. Scorched-earth operations left large parts of the Eastern island-half destroyed and forced hundreds of thousands of people to flee to West Timor. In the aftermath, the Indonesian Government did all it could to avoid an international tribunal for the trial of the perpetrators as had been recommended amongst others by an UN-mandated Commission of Inquiry.19 Eventually, the international community agreed that Indonesia brought those responsible for the atrocities to court under its national jurisdiction. This was the background for the enactment of Law No. 26/2000 on Human Rights Courts.
With this piece of legislation a legal basis to try crimes of gross
violations of human rights was introduced into Indonesian law. The Human
Rights Courts Law includes various provisions from international documents,
most notably from the Rome Statute of the International Criminal Court.
Amongst others, the Law employs almost the same definition of ‘Genocide’
and ‘Crimes against Humanity’ as is laid down in the Rome Statute.20
The latter defines Crimes against Humanity as
“... any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender ... or other grounds that are universally recognised as impermissable under international law...;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.
This means that the most recent and most comprehensive international definition has found entry into the Indonesian Law – few omissions and slight differences on the Indonesian part notwithstanding. Another provision of the Rome Statute included in the Indonesian Law is the crucial stipulation on the responsibility of commanders and superiors.
That the enactment of the Law was a reaction to the calls for an international tribunal which continued unabated, has even been written into the Law: The legislators explicated in its Elucidation that the Human Rights Courts Law shall “protect” (melindungi) Indonesian citizens who have perpetrated gross violations of human rights outside the territorial boundaries in the sense that they be tried in Indonesia under the same Law.21 Against this background it can not surprise the reader to find attempts to circumscribe and subvert the positive provisions in the Law in other pieces of legislation.22 Here, only two shall be mentioned.
The gravest such attempt was the codification of an unqualified retroactivity prohibition in the Constitution: During the time of their final deliberations of the Human Rights Courts Law the same legislators (among others) enshrined in the Second Constitutional Amendment as non-derogable the right not to be prosecuted on a retroactive legal basis.23 It was feared that with this constitutional prohibition the East Timor trials would never take place. The right that nobody shall be prosecuted on a retroactive legal basis is, of course, a crucial internationally recognised right, which is included in the Universal Declaration of Human Rights as well as in the International Covenant on Civil and Political Rights (ICCPR).24 However, other than the Indonesian constitutional provision, the one in the ICCPR has a crucial addition, namely that “… nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”25
The explanation, that the constitutional codification of an unqualified prohibition of retroactive application of law was simply an oversight,26 as put forward by the Chairman of the People’s Consultative Assembly,27 Amien Rais, is unconvincing, to say the least, given the fact that a qualified retroactivity prohibition in the sense of the above quoted ICCPR provision was already part of Indonesian law: The same had been codified in the Human Rights Law, enacted in 1999.28
Whereas this attempt to render the Human Rights Courts Law inapplicable for the crimes perpetrated in East Timor was eventually not successful, an attempt to subvert the above quoted crucial Rome Statute provisions in the Indonesian Law had serious consequences for the outcome of the trials: In August 2001, President Megawati issued a Presidential Decree in which she ordered a limitation of the Court’s jurisdiction concerning time and place of perpetration. In the Decree it was determined that the Court’s jurisdiction only covered the months of April and September 1999 and only crimes perpetrated in Dili, Liquiça and Suai.29 A trial observer has explained at length that this political limitation is, in fact, legally irrelevant, as under Indonesia’s inquisitory system it is the duty of the Court to investigate all relevant facts.30 However, the Court seems to have strictly abided by the limitations of its jurisdiction. For this reason, amongst others, it was difficult, if not impossible, to prove the ‘widespread’ or ‘systematic’ nature of the attacks, which are according to the Rome Statute and the Human Rights Courts Law the defining characteristics for murder, extermination, torture and the other crimes to be categorized as gross violations of human rights.31
The outcome of the trials was therefore not surprising: Of the 18 defendants,
12 have been acquitted, the others have been handed minimum or even sub-minimum
sentences. Pending appeal, all convicts remained free and have pursued
their careers – amongst others in the crisis regions Aceh and Papua.32
By mid-April 2004, the Supreme Court had confirmed six of the verdicts,
i.e. five acquittals and one sub-minimum sentence.33
The ‘protection’ of Indonesian perpetrators has indeed been successful
– impunity to the largest extent prevails.
Resurrecting New Order features in a new garb - Anti-terrorism laws and draft security legislation
Steps towards re-establishing key features of Suharto’s New Order system can most clearly be seen in the anti-terrorism legislation enacted after the Bali bombings as well as in the deliberations on new security legislation. Anti-terrorism legislation had already been on the legislators’ agenda before the attacks on the island which is renowned as a holiday resort. Numerous provisions in the Draft Law were, however, controversial; agreement had not yet been reached. After the terror attacks, the Government of Megawati Soekarnoputri unilaterally enacted the contested legislation by decreeing the Draft Law to be effective as emergency legislation and at the same time made it retroactively applicable for the Bali bombings. Parliament eventually succumbed and four months later transformed the two pieces of emergency legislation into regular statutes.
The anti-terrorism legislation contains a number of provisions on law of procedure which not only violate internationally codified principles of due process of law, but also deviate from provisions in Indonesia’s relatively liberal Code of Criminal Procedure. The most vociferous criticism was levelled against a provision that vests the police with the authority to detain a suspect for up to six months without Court order and without formal charge.34 Another procedural provision that was subject to harsh criticism was the one that stipulates that intelligence reports can be used as sufficient preliminary evidence for arrests. The corresponding Elucidation to the Article at hand now mentions that so-called ‘safeguarding rules’ have been introduced and determines that the Head of a District Court has to conduct a so-called legal audit, meaning that he or she has to rule – in a closed session – on the validity of intelligence material as evidence.35 In my understanding this so-called safeguarding provision might much rather turn out to be a device to circumscribe yet another clause in the Code of Criminal Procedure, namely the right to pre-trial.36 The question here is whether a pre-trial hearing will still be granted, if a Court has already determined that the intelligence material is sufficient as preliminary evidence.37
Furthermore, one definition of the crime of terrorism in the new legislation has been much criticized as it is very broad which makes it open for abuse. Interestingly, the wording of the mentioned definition resembles parts of the definition of the crime of subversion as had been included in the notorious Anti-Subversion Law which had only been revoked in 1999.38
No provisions concerning implementing institutions are included in the
Anti-Terrorism Law. For this President Megawati issued a Presidential Instruction,
wherein she empowered the State Intelligence Agency BIN (Badan Intelijen
Negara) to coordinate intelligence activities.39
This enhancement of authority did, however, not suffice for the Agency.
BIN has since lobbied for further increase of its power. As far as the
anti-terrorism legislation is concerned, BIN has so far failed to push
through its aim to be granted powers of arrest, interrogation and investigation.40
Another attempt to increase its authority is manifest in the Draft Law
on State Intelligence. When at the beginning of the year 2003 a version
of the Draft Law became known to the public, vociferous protest was voiced.
Amongst others, the Draft authorized the State Intelligence Agency to detain
suspects for up to 90 days, with the option to extend this period three
times. This means that the total of the detention period envisaged in the
Draft equals the one year detention period that had been included in the
Anti-Subversion Law. Furthermore, if the Draft became Law, BIN would be
authorised to conduct investigations and to take a whole range of measures
against a person suspected of having engaged in activities which endanger
national security. Amongst others, the defendant’s rights to counsel, his
or her right to refuse to give evidence and to get into contact with persons
outside the prison or place of detention could then be suspended.41
Had already the provisions in the new anti-terrorism legislation been a
step towards resurrecting elements of the notorious Anti-Subversion Law,
a restoration of a Suharto-era style legal framework would even more so
be the case if this Bill became Law. It remains to be seen how matters
develop. In recent months it has been rather silent as concerns the state
of affairs of the deliberations on new security legislation.
The struggle to implement the constitutional rechtsstaat stipulation - The legal basis for the new Constitutional Court and landmark verdicts by its Judges
The Third Constitutional Amendment has codified substantially more provisions concerning the judiciary: Previously, judicial independence had only been determined in a limited way in the Elucidation of the Constitution.42 Now it is stipulated in the Body of the Indonesian Basic Law and without reservations that the judicial authority is an independent authority. Furthermore, the establishment of a Constitutional Court has been codified, and this even with a time limit attached.43 Only four days before the constitutionally stipulated deadline of August 17th, 2003, an according law was signed by President Megawati, namely Law No. 24/2003 on the Constitutional Court.
The delimitation of authority of the new Constitutional Court and the Supreme Court as laid down in the Constitution is such that the Supreme Court retains the authority to conduct judicial review of legislation ranking below the status of statutes against statutes.44 And the Constitutional Court is granted the authority to conduct judicial review of statutes against the Constitution. The new institution furthermore holds the authority to decide on cases concerning authority vested in State institutions under the Constitution, to decide on the banning of political parties and to rule in cases of disputes concerning election results. Furthermore, the Constitutional Court is granted a role in impeachment proceedings as it needs to approve of a corresponding proposal by Parliament.45
Will the Constitutional Court be the necessary institution to promote the implementation of the constitutional determinations that Indonesia is a rechtsstaat, a constitutional state under the rule of law, and that the judiciary is an independent power? If one takes a look at the implementing legislation concerning the determination of the Court’s authority, any hope in this respect will be quickly disappointed: The Law on the Constitutional Court sets a time frame on the jurisdiction of the Court, thus limiting its authority of judicial review to laws passed after the First Constitutional Amendment, i.e. after October 19th, 1999.46 That with this one provision the legislators have simply excluded the entire body of Suharto-era (and earlier) legislation from the Court’s jurisdiction, serves as yet another example that the Suharto-era pattern of circumscribing rechtsstaat supporting provisions in implementing legislation is still continued.
However, hope as regards to a crucial rechtsstaat implementing role of the new Constitutional Court comes up again when looking at how the Constitutional Judges have decided to deal with the matter: By no means do they acquiesce to and abide by the legal limitation of their constitutionally determined authority. In a verdict which concludes the case of a judicial review of a law dating from 1985, the Judges have elaborated at length on the matter. Their majority opinion on the question of their jurisdiction (with three dissenting opinions) is that they “put aside” (“mengeyampingkan”) the crucial provision, i.e. Article 50 of the Law on the Constitutional Court. Their key argument is as follows: The constitutional provision in which the authority of the Court is codified is to be characterised as “limitatif”. This means that only these constitutional stipulations define the authority of the Court, which, consequently, can be enlarged or diminished solely by way of constitutional amendment. Although the Constitution also stipulates that, amongst others, regulations concerning appointment and dismissal as well as concerning law of procedure are to be determined in a statute, what has been done with the Law on the Constitutional Court, “… this can not mean that the legislator can determine regulations which contradict the substantial provisions that are laid down in the Constitution.”47 The Court is of the opinion that the limitation of its jurisdiction as stipulated in Article 50 of the Law on the Constitutional Court diminishes the authority that the Constitution vests in the Court and contradicts the accepted hierarchy of norms. As the legislator can neither add to nor reduce the Court’s constitutional authority, the legal basis upon which the decision whether or not an application for judicial review falls under the Court’s jurisdiction is to be based, remains the Constitution, not a statute.
A different line of reasoning is pursued when the Court continues its argument as follows: Suppose the contested Article 50 is understood as a delegation of authority which is covered by the constitutional provisions – an opinion which the Court does not share, as is mentioned again at that point – a legal vacuum would occur. No institution would then be authorised to conduct judicial review of laws enacted before October 19th, 1999. Also in this case was the Court obliged to investigate and decide the case. The Court argues that it could not simply reject a case on the grounds that a legal basis was lacking. Rather, it was the duty of the Court to abide by the corresponding norms, so that regardless of the existence of Article 50 the Court was authorised to decide the case at hand. After all, one reason for the existence of the Court was that differences of opinion concerning the constitutionality of a statute would be solved by a neutral and impartial institution based on law and justice.
This verdict of the Court has not been the only groundbreaking one: In February 2004, the Constitutional Judges ruled that the article in the Election Law which withheld former members of the Indonesian Communist Party their passive voting right was unconstitutional and thus no longer valid.48 Although the verdict was not effective for the Parliamentary elections in April 2004, its importance can not be underestimated. The ruling shakes one of the decade-old ideological foundations of the Indonesian state. Suharto had erected his staunchly anti-communist regime on the mass graves of real or alleged Communists; the massacres of 1965/66 may be recalled, during which hundreds of thousands of people had been killed. Estimates reach from 500,000 to 2 and even 3 million. Discrimination of former real or alleged Communists in many different spheres of life outlived the mass murder and mass incarceration of the 1960s and continues until today. The argument in the Court’s verdict gives reason for hope that a door has now been opened for the dozens of pieces of legislation with discriminatory regulations eventually to be brought into accordance with the Constitutional discrimination prohibition.
With already two groundbreaking rulings in the short period of its existence, the Constitutional Judges have demonstrated that Indonesia’s new Constitutional Court can potentially play a crucial role in the process of promoting democratisation and rule of law in the country – one glimmer of hope in the otherwise rather bleak outlook for prospects of democracy and rechtsstaat in Indonesia six years after the fall of its long-term authoritarian ruler.
Cohen, David (2003): Intended to Fail. The Trials before the Ad Hoc Human Rights Court in Jakarta. Ed. by the International Center for Transitional Justice, available at: http://www.ictj.org/downloads/Indonesiafinal2MB.pdf
Flor, Alex (2004): “Neue SARS-Epedemie in Indonesien”, in: Indonesien-Information No. 1/2004, pp. 3-6 (soon at: http://www.watchindonesia.org)
Flor, Alex; Monika Schlicher & Petra Stockmann (2004): “Introduction: Justice for the Victims” in: Häusler 2004 (original German version and English translation available at http://www.watchindonesia.org/Justice_for_the_Victims.pdf
Häusler, Bernd (2004): Justice for the Victims. A Legal Opinion on the Indonesian human rights trials concerning the crimes committed in East Timor in 1999. English translation of: Gerechtigkeit für die Opfer. Eine juristische Untersuchung der indonesischen Menschenrechtsverfahren zu den Verbrechen auf Osttimor im Jahr 1999, Schriftenreihe Gerechtigkeit und Frieden (Series Justice and Peace) – No. 98, ed. by German Commission Justitia et Pax, Bonn, April 2003 (original German version and English translation available at http://www.watchindonesia.org)
Schlicher, Monika (2004): „Intervention in Asien: Das Beispiel Osttimor – Konfliktlösung ohne ausreichende Prävention“, in: Schutz der Menschenrechte. Zivile Einmischung und militärische Intervention. Analysen und Empfehlungen, ed. by Thomas Hoppe, presented by Projektgruppe Gerechter Friede der Deutschen Kommission Justitia et Pax, Berlin, pp. 257-300
Stockmann, Petra (2004): Indonesian Reformasi as Reflected in Law. Change and Continuity in Post-Suharto Era Legislation on the Political System and Human Rights (publisher: LIT-Verlag)
Stockmann, Petra (2004a): “Entzug des passiven Wahlrechts von Ex-Kommunisten verfassungswidrig”, in: Indonesien-Information No. 1/2004, pp. 14-18 (soon at: http://www.watchindonesia.org)
U.S. Department of State (2004): U.S. Department of State, Bureau of
Democracy, Human Rights, and Labor, Washington D.C., February 25, 2004:
Country Reports on Human Rights Practices 2003: Indonesia,
Watch Indonesia! et al. 2004: United Evangelical Mission, Watch Indonesia!
& Diakonia: Aide Mémoire. 60th Session of the UN Commission
on Human Rights, 15th March to 23rd April 2004, available at: http://www.watchindonesia.org/AideMemoire_Indonesia04.htm
Anti-subversion Law: Amnesty International: Indonesia. The Anti-subversion Law: A Briefing, 1997 (AI Index: ASA 21/03/97; http://www.ai.org)
Government Regulation in Lieu of a Statute (Perpu) No. 1/2002: Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 1 Tahun 2002 tentang Pemberantasan Tindak Pidana Terorisme
Government Regulation in Lieu of a Statute (Perpu) No. 2/2002: Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 2 Tahun 2002 tentang Pemberlakuan Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 1 Tahun 2002 tentang Pemberantasan Tindak Pidana Terorisme pada Peristiwa Peledakan Bom di Bali Tanggal 12 Oktober 2002.
Law No. 39/1999: Undang-Undang Republik Indonesia Nomor 39 Tahun 1999 tentang Hak Asasi Manusia
Law No. 26/2000: Undang-Undang Republik Indonesia Nomor 26 Tahun 2000 tentang Pengadilan Hak Asasi Manusia
Law No. 15/2003: Undang-Undang Republik Indonesia Nomor 15 Tahun 2003 tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang Nomor 1 Tahun 2002 tentang Pemberantasan Tindak Pidana Terorisme menjadi Undang-Undang
Law No. 16/2003: Undang-Undang Republik Indonesia Nomor 16 Tahun 2003 tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 2 Tahun 2002 tentang Pemberlakuan Peraturan Pemerintah Pengganti Undang-Undang Nomor 1 Tahun 2002 tentang Pemberantasan Tindak Pidana Terorisme pada Peristiwa Peledakan Bom di Bali Tanggal 12 Oktober 2002 menjadi Undang Undang
Law No. 24/2003: Undang-Undang Republik Indonesia Nomor 24 Tahun 2003 tentang Mahkamah Konstitusi
Presidential Decree No. 96/2001: Keputusan Presiden Republik Indonesia Nomor 96 Tahun 2001 tentang Perubahan atas Keputusan Presiden Nomor 53 Tahun 2001 tentang Pembentukan Pengadilan Hak Asasi Manusia Ad Hoc pada Pengadilan Negeri Jakarta Pusat
UUD NRI 1945: Indonesian 1945 Constitution after its Fourth Amendment, available at: http://www.mpr.go.id/uud.php
If not mentioned otherwise, the legislation is available at:
1 East-West Talks is a joint event held by
the Europe-China Research Programme of David C. Lam Institute for East-West
Studies (LEWI) and the Department of Government and International Studies,
Hong Kong Baptist University.
2 The Suharto regime is referred to as ‘New Order’, as distinct from the ‘Old Order’ under Indonesia’s first President Sukarno.
3 On April 22nd, 2004, the official vote tally stood at 21.14% for Golkar and 19.44% for PDI-P; cf. homepage of vote tabulation of the Election Commission http://tnp.kpu.go.id.
4 Akbar Tandjung had been sentenced to a three year prison term for misusing about 5 million US Dollars intended for a food distribution program which the prosecution said ended up in Golkar’s 1999 election campaign coffers; cf. e.g. Jakarta Post, 14/02/2004. He remained free pending appeal and saw no need to step down from his post as Parliament Head. - According to the law, MPs will only lose their mandate when sentenced to a prison term of more than five years. - The verdict was confirmed in second instance, but in February 2004 eventually overturned by the Supreme Court.
5 Wiranto’s second career choice is that of a pop star. An album of love songs released three years ago is entitled “For You, My Indonesia”. Touring the country with view on his possible Presidential bid, he recently compared himself to Michael Jackson: “Did you see how they touched me,” he asked reporters, “it was as if I was Michael Jackson and they were my fans.” Cf. AP, 09/02/2004.
6 Prabowo Subianto, formerly amongst others commander of the notorious Army Strategic Command (Kostrad), has widely been accused of being responsible for numerous human rights violations. He has admitted to having ordered the abduction and torture of nine pro-democracy activists during the last months of Suharto’s rule. Cf. e.g. U.S. Department of State 2004.
7 Cf. e.g. Jakarta Post, 20/04/2004.
8 Cf. e.g. press release by the London based human rights organisation tapol of 21/04/2004; Jakarta Post, 21/04/2004.
9 This despite the fact that the commission of inquiry set up by the Indonesian Government had included Wiranto on its list of suspects that should be prosecuted for gross human rights violations.
10 This is due to various kinds of political sensitivities on the part of the UN as much as on the part of the East Timorese Government that wants good-neighbourly relations with Indonesia at all costs, it seems.
11 Cf. e.g. Wall Street Journal, 11/02/2004.
12 Some biographical notes as gathered from media reports and different homepages: SBY, as Yudhoyono is commonly referred to in the media, started his military career with the Army Strategic Reserve Kostrad (1974-1981) Reportedly, he had been on duty in East Timor 1979-80 and 1986-88. He went to the United States for his MA in Management as well as for military training in Fort Benning and Fort Leavenworth. SBY was Chief Military Observer of the United Nations Peace Forces (UNPF) in Bosnia-Herzegovina. Before he joined the Cabinet of Abdurrahman Wahid in October 1999, SBY had been Chief of the Territorial Command of the Armed Forces. The army’s territorial structure is a military structure parallel to the nominally civilian administrative structure, reaching from national down to village level. Cf. for the biographical data http://www.tokohindonesia.com, http://www.detik.com, http://www.indonesiaembassy.org.uk.
13 The still ongoing military operation in Indonesia’s resource rich Western-most province is the largest military operation since the occupation of East Timor in 1975.
14 The five principles are: Believe in the One God; Just and Civilised Humanity/Humanism; Indonesian Unity; Rule of the People Guided by Wisdom in Deliberation/Representation; Social Justice for the Whole Indonesian People.
15 Literal translation of the Indonesian term for Constitution, Undang-Undang Dasar.
16 For a detailed analysis cf. Stockmann 2004.
17 The Constitutional Elucidation stipulated: “The judicial power is an independent power, which means free of influence from Government authority.” The Elucidation had since 1959 constituted an integral part of the Constitution. It has been abandoned now in the course of constitutional amendment.
18 Cf. Cohen 2003: 2
19 For details on this cf. Flor, Schlicher & Stockmann 2004; also Schlicher 2004. For an evaluation of the trials cf. Häusler 2004, Cohen 2003.
20 For details cf. Häusler 2004, Stockmann, 2004: 302ff.
21 Cf. Elucidation Art. 5 Law No. 26/2000.
22 For details cf. Stockmann, 2004: 302ff.
23 The statutes are made by the Parliament, the Dewan Perwakilan Rakyat (DPR), and Government; Constitutional Amendments are enacted by the formerly highest ranking state organ, the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat, MPR), which among other MPs comprised all DPR members. Its composition and status have been changed with the Third Constitutional Amendment.
24 Cf. Art. 11 (2) Universal Declaration and Art. 15 and 4 ICCPR.
25 Cf. Art. 15 (2) ICCPR.
26 Cf. Jakarta Post, 17, 18, 21/08/2000. For details cf. also Stockmann 2004: 285.
27 Cf. endnote 22.
28 It reads: “An exception to the right not to be tried on a retroactive legal basis can be made in the case of gross violations of human rights which are classified as crimes against humanity.” Cf. Elucidation Art. 4 Law No. 39/1999 on Human Rights.
29 Cf. Art. 1 Presidential Decree No. 96/2001.
30 Cf. for the legal opinion on the trials Häusler 2004; cf. also Flor, Schlicher & Stockmann 2004.
31 Cf. quotation above for the definition of crimes against humanity.
32 For details cf. e.g. Human Rights Watch, Press Release, 05/08/2003: “Indonesia: Transfer Convicted General From Aceh”; tapol Press Release, 04/12/2003: “Danger of violent instability in West Papua increases as rights abusers take on key roles”; Watch Indonesia! et al. 2004.
33 Cf. Jakarta Post, 12/04/2004; Jaknews.com, 09/03/2004.
34 This is four months for the purpose of investigation and two months for prosecution. With this, the authority of the police has been broadened: Under the Code of Criminal Procedure, the Public Prosecutor orders the extension of detention after the first 20 days and detention for the purpose of prosecution. Cf. Art. 25 (2) Government Regulation in Lieu of a Statute (Perpu) No. 1/2002 and Elucidation.
35 Cf. Art. 26 Perpu 1/2002 and Elucidation; General Part of the Elucidation. Perpu 1/2002.
36 One important improvement that the new Code, introduced in 1981 to replace the one stemming from colonial times, contained, was, that a suspect is granted the right to call for a pre-trial hearing in order for a Court to decide – in an open session – on the validity of an arrest or a detention.
37 There are other deviating provisions concerning the law of procedure in the anti-terrorism legislation, e.g. the authorization for the police to open and confiscate mail without Court order; cf. Art. 31 (1a) Perpu 1/2002.
38 Cf. Art. 6 Perpu 1/2002; Art. 1 (1) Anti-Subversion Law.
39 Cf. Presidential Instruction No. 5/2002.
40 Concerning earlier attempts cf. e.g. Media Indonesia, 22/02/2003; Jakarta Post 22/02/2003; for more recent attempts cf. e.g. Kompas, 26/09/2003; Jakarta Post, 19/09/2003.
41 For details of the Draft and criticism cf. e.g. Berita hukumonline, 01/03/2003, 04/03/2003; Jakarta Post, 05/03/2003.
42 Cf. endnote 16.
43 Cf. Art. 24 of the amended Constitution UUD NRI 1945; for the time limit cf. Art. III, Transitional Regulations, UUD NRI 1945.
44 Cf. Art. 24 A (1) UUD NRI 1945.
45 Cf. Art. 7 A, B, Art. 24 C (1, 2) UUD NRI 1945.
46 Cf. Art. 50 of Law No. 24/2003 and Elucidation.
47 Cf. the verdict in the case of Law No. 14/1985 Putusan Perkara Nomor 004/PUU-I/2003, available at the homepage of the Constitutional Court at http://www.mahkamahkonstitusi.go.id.
48 For details cf. Stockmann 2004a. The verdict in the case No. 011-017/PUU-I/2003 is available at http://www.mahkamahkonstitusi.go.id.
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