Past Human Rights Violations: Institutional Feedback for Fair Settlement

Jokowi-JK administration has committed to fairly settle the past human rights violation cases. This commitment becomes one of government’s priority agenda, as written in “Nine-Point Agenda for Change” (Nawacita) document, and then implemented in 2015-2019 National Medium Term Development Plan (“RPJMN”). To follow up this duty, Coordinating Minister for Political, Legal, and Security Affairs (“Menko Polhukam”) has initiated to gather numerous affiliated ministry/institution, including National Commission on Human Rights, to force the establishment of settlement committee. This plan has become embroiled in public polemic, particularly related to mandate, scope and who will involve in that committee?

Seeing the progress, the first thing to be considered in this settlement plan is that its existence should not simply derogate legal process that has been started by National Commission on Human Rights, especially toward 7 allegedly gross human rights violation cases, in which process has been sent to General Attorney’s Office. Lest the establishment of this committee becomes an opportunity for General Attorney’s Office to make it as an avenue for escape, by blurring the ongoing legal process. That legal process is a mandate that imposed by law (Law No. 39/1999 and Law No. 26/2000), which cannot be neglected without a settlement.

We should remember that one of the purposes of past human rights violations settlement is to restore legal sovereignty, as a mandate from rule of law country, as it has been stated in Article 1 paragraph 3 of Constitution 1945. For that, every effort to institutionalize settlement policy, should be aligned with principles and rule of law framework, by making the law as a guidance. Integral part of this principles’ manifestation is also by ensuring an open, transparent and participative process in its policy making proposals. A will to not place institutionalization efforts to resolve past human rights violations in a dark room, becomes an important sign that there’s a political transformation from authoritarian to democracy.

In this occasion, we encourage an establishment of presidency’s committee to resolve past human rights violation. Instead of re-debating the enactment of Law of Truth and Reconciliation Commission (TRC), that has been annulled by Constitutional Court (CC). Asides from a long momentum, the recent parliament’s political map is not profitable to pass the Law of TRC. Moreover, there’s no guarantee, that this law will not be annulled again by CC. The previous CC decision, in judicial review of Law of TRC, could be a legal basis as well as giving legitimation for this committee’s establishment. In its decision, CC asserted the meaning of past human rights violations settlement, that could be done by an enactment of legal policy or political policy.

That political policy’s option has been translated into RPJMN by establishing an ad hoc committee under the President, to facilitate truth-seeking process, and becomes a ground for further steps in fulfilling victims’ rights. The establishment of this Committee is expected to ensure a settlement for past cases that have become a social and political burden for the nation. However, even though these steps and institutionalization policy could be formulated into various forms, principally, those entire acts connected to universal principles, which is a state’s duty to remember, by fulfilling the right to know, as a ground to fulfill the right to reparation, including the enforcement of accountability through prosecution, in order to prevent repetition, and institutional reform agenda.

An obligation to complying with those principles in institutionalization policy to resolve past human rights violation is meant to fulfill the gross human rights violation victims’ rights for: (1) access to equal and effective justice; (2) adequate, effective and quick reparation from suffering; and (3) access to relevant information about violations and its reparation mechanism. Furthermore, based on international human rights law, reparation ought to, as far as possible, repeal every consequences from illegal act and rebuild damaged situation caused by an action, into the way it used to be (restitutio ad integrum). Generally, the victims of gross human rights violation victims practically have the right to get: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

By making those principles as a reference, and reflecting to the entire path to resolve past gross human rights violations, one important thing that we can conclude is that there’s no simple way in settlement, let alone the fast, quick and efficient way. Besides, in order to give a firm legitimation to the process, we also need involvement and support from many stakeholders. Before deciding steps that we need to take, firstly, we should prepare conceptual idea and comprehensive map, to gradually deliver settlement methods, as a path to build new civilization, without ignoring the State’s duty with respect to victim’s right.

Referring those considerations, Institute for Policy Research and Advocacy (“ELSAM”) recommends all stakeholders that are related to preparation of settlement, including National Commission on Human Rights, General Attorney, and Menko Polhukam, including the President, to consider the following things:

  1. Institutionalization policy can be done by an ‘official remorse’ to various human rights violations that exist. This official statement is also underlying the establishment of policy to form a Committee which has an authority to follow up past human rights violations settlement. The main result of this Committee is to narrate official recognition of past human rights violations and recommend methods to fulfill duty towards the victims, related to recognition, law accountability, reparation for the victims and their relatives, institutionalization policy for recovery, and technical methods that needed to realize the duty to recover.
  2. Efforts to strengthen trust towards law accountability’s mechanism by running a legal process for cases which is technically possible to be brought to court. Therefore General Attorney’s Office should address cases that have been delegated by National Commission on Human Rights. As a beginning step which is recommended by the parliament to establish an ad hoc human rights’ court for disappearance during 1997-1998.
  3. Long term step, as an effort to build social integration, can be institutionalized as part of realization of Committee’s recommendation. This step can be done through development of partnership with society to support initiatives of recurrence prevention, both in a form of memorials in various place and design, amendment curriculum for education, and efforts to encourage relevant research in universities.
  4. In addition to the above 3 points, it is also important for the President to exclusively pay attention towards the entire plan and agenda of past human rights violations settlement, which is still ongoing. Every information related to that agenda should be under President’s supervision, to show consistency as well as a clear direction and attitude from Government. It becomes urgent, particularly to minimize possibilities of tense friction in grass root that could trigger horizontal conflicts.

Jakarta, July 5 2015

Institute for Policy Research and Advocacy (“ELSAM”)

Contact Person(s):
Ifdhal Kasim : 087705510945 (Member of ELSAM)
I Gusti Agung Putri Astrid Kartika : 081283105242 (Member of ELSAM)
Wahyudi Djafar : 081382083993 (ELSAM’s researcher)