Reparation for the Past and Abolition of Impunity

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By: Asvi Warman Adam

The end of president Soeharto’s reign of power in 1998 opened up a new chapter of the history of Indonesia. At that point, a long list of previously concealed cases of violence and violations of human rights started to emerge.

However, finding solutions to all these issues has not been easy. A state on the way to transform itself from a country previously ruled under an authoritarian system of government to a democracy; Indonesia is struggling with poor law enforcement.

Lack of proper legal systems and under-performing state institutions call for a third way of dealing with the problem and bridging the two extremes: One that demands abolition of impunity and conviction of all criminals and another that tolerates it.

A compromise to serve the purpose may be referred to as “transitional justice”. It means that a number of serious human rights offenses can be brought to an ad hoc human rights court while the rest are settled through the Indonesian Commission for Truth and Reconciliation (KKR, Komisi Kebenaran dan Rekonsiliasi).

Victims initially had doubts and thought that KKR was part of a ploy to get the perpetrators away with indictment.

It was in the environment of surrounding doubts that the Law on KKR was promulgated on Oct. 6, 2004. Ignoring protests voiced by a number of victims, a member of the House of Representatives, Sidarto Danusubroto, said, “It is better to give birth to a hare-lipped new-born than to have an abortion”.

The House put the law into effect with future amendment in mind through judicial review.

The KKR conducted research into cases of violations of human rights recorded prior to the enactment of Law No. 26/2000 on the Human Rights Court.

It was unfortunate that the Law on the KKR set no clear time line. I think the commission can divide the time line into the following periods: 1945-1955, 1956-1965, 1966-1975, 1976-1985, 1986-1995, and 1996-2000.

For every decade interval, they should pick one or two major cases to focus on. There should also be three criteria for choosing worthy cases: Relevance, significance and representation.

Regional, ethnic and religious “representation”, among others, need to be taken into account.

Therefore, cases to be selected should not be limited to ones connected to the 1965 tragedy; they will have to include those that were linked to groups and organizations of Islam, people of Aceh and Papua, those of Chinese ethnicity, etc.

This would be necessary to challenge the suspicion of certain Islamic groups that was once sounded by poet Taufiq Ismail — he said that if the government had managed to get a KKR assembled, “Muslims would have to apologize and communists would get compensation”.

April 2005 saw the first phase of the selection of KKR members. After all the phases concluded, the selection committee came up with 42 candidates.

President Susilo Bambang Yudhoyono would then take 21 from of the list for submission to and further discussions at the House. But months afterward, SBY still could not make a decision on the candidate list.

In the meantime, human rights activists filed a request for a judicial review of the KKR Law, and demanded the revision of three articles, one of which concerns linking the awarding of compensation to victims to the granting of amnesty to those who committed human rights violations.

Their demand was based on the assumption that if no perpetrators would admit their crimes and be given amnesty, no compensation would be awarded to the victims.

Islamic organizations also filed for a similar review, but they demanded that the law be declared null and void.

The decision of the Constitutional Court of Dec. 7, 2006, came as a great shock. The court decided to turn down the petition for abrogation of the law, and granted the demand for removal of articles that link compensation to amnesty.

The Constitutional Court, however, was of the opinion that the law had now lost its soul, i.e. on reconciliation, and it no longer had binding legal power.

Following the ultra petita ruling by the court, drafting of a new KKR Law was to take place.

The reluctance of the authorities to establish and run a KKR has showed from the start of the legal drafting by the government. The President has yet to select 21 out of 42 KKR membership candidates listed by the House of Representatives. SBY’s stance is understandable given his status as a son-in-law of Gen. Sarwo Edhi Wibowo who led military operations to wipe out PKI in Central Java, East Java and Bali in 1965.

Through a confidante, SBY once made a statement about his concept of the past (“let bygones be bygones”). What matters are the present and the future. “Personally”, SBY reportedly said, “I would not get myself involved in corrupt practices and would, to the best of my ability, fight against corruption and keep my hands off [serious] human rights offences”.

But he made no promise to take action against those who committed gross human rights violations in the past.

The Indonesian government would only make a move and set up a Commission for Truth and Indonesian–Timor Leste Friendship in 2005 when the case of serious human rights offenses abounding at the time of the 1999 referendum was on international agendas. While the report — completed in 2008 — criticized violence against people by Indonesian security forces, no names of those responsible were listed and no subsequent actions planned.

In addition to political challenges, legal efforts by victims of human rights offenses have also not produced satisfactory results. In 2005, the victims, with support from the Jakarta Legal Aid Office (LBH, Lembaga Bantuan Hukum), filed a class action against the President of the Republic of Indonesia.

This legal action, by seven groups, was the largest since the era of reform and involved people who fell victim to the 1965 tragedy, both in the country and overseas.

Another failed attempt; the court proceedings were even disturbed by a rally by the Islam Defenders Front.

When political and legal channels have given no results, one through culture seems to be more effective. Making of documentary films on past human rights violations in Indonesia continues.

Books telling stories about 1965 victims are being published, and one of them, Memecah Pembisuan (Breaking Silencing), is a subject of discussion in many universities in Indonesia and was reviewed by The New York Times.

Painters and sculptors of an arts group, Sanggar Bumi Tarung, had the opportunity to exhibit their work at the capital city. And more recently, local cinemas had a showing of Sang Penari (the Dancer), a motion picture based on the novel by Ahmad Tohari.

Literary books with 1965 settings were published. One should not forget that the Attorney General’s Office has not had the power to ban the publication of books since 2010.

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Notice: This opinion article was displayed in an online newspaper, The Jakarta Post, in Jakarta, Indonesia, on Wednesday, February 15, 2012. It is able also to be searched at: www.thejakartapost.com [accessed in Bandung, West Java, Indonesia: 22 February 2012].

The writer is a historian at the Indonesian Institute of Sciences (LIPI, Lembaga Ilmu Pengetahuan Indonesia) in Jakarta. The article is an abridged version of a paper presented at the Historical Justice and Memory Conference in Melbourne, Australia, on February 14-17, 2012.

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