The Commission for the Disappeared and Victims of Violence (KontraS) and the Asian Human Rights Commission (AHRC) urge the military to make open to the public the upcoming trial in a case of military torture that was committed against Charles Mali and others in East Nusa Tenggara. Closed military tribunals have in the past contributed to military impunity and have given only lenient punishments for serious human rights abuses committed by members of the Indonesian national military (TNI). KontraS and the AHRC have noted many outrageous verdicts on torture cases given in internal and closed military trials. The practice in this case is expected to prolong or deny a settlement of the case for the victims.
TNI’s members had taken Charles Mali (24) and his brother Hery Mali to the Tobir Army Post of the 744th Infantry (TNI Yonif 744) in East Nusa Tenggara (NTT). At the post, the members of the 744th Infantry tortured them, resulting in the death of Charles Mali on March 13, 2011. Four months after the incident, the closed military trial of the case is now alleged be held between 11-13 July 2011 according to information that KontraS and the AHRC has received..
As has been seen in previous internal military trials, such as that of the 1997-1998 activist disappearances or the torture of Tuanliwor Kiwo in Papua in 2010, these TNI conducted trials display a serious lack of fairness and impartiality.
First, law No. 31 of 1997 on the Military Judicature is outdated and requires review. It refers to overruled legislations such as, law No. 14 of 1985 concerning the Supreme Court, law No. 20 of 1982 concerning defense and security, and law No. 14 of 1970 regarding judicial power.
Second, the trial is referring to law No. 31 of 1997 on the Military Judicature according to which the jurisdiction in the case depends on the subject who committed the crime or offense. This law is contrary to the decree of the People’s Consultative Assembly No.VII of 2000 concerning the role of the indonesian national army and the police, which clearly stated that the army members have to abide by the public judicial power in cases where the Indonesian criminal code has been violated. The Indonesian criminal code prohibits forms of violence and murder.
Third, the judges of the military trial in the case of Charles Mali lack independence, as internal trials can certainly not be separated from the control of military Commander-in-Chief. The elements of command and rank play an important role in influencing the judicial process.
Fourth, law No. 31 of 1997 on Military Judicature makes several provisions for the judicial process and allow very wide interpretations. This provides for the possibility for serious violations of fundamental rights in a trial.
Based on international and national law, the trial against the perpetrators of the torture and murder of Charles Mali and the torture of his brother has to respect all aspects of a fair trial and ensure impartiality as mentioned in article 14 of law No. 12 of 2005 on the ratification of the International Covenant on Civil and Political rights.
KontraS and the AHRC urge the military Commander-in-Chief to ensure that
- The trial will hold the perpetrators accountable for the torture and killing of Mr. Charles Mali and the torture of Mr. Mali’s brother
- Basic principles of fair trial as required by international and national law are observed for all concerned parties including the right to be heard by a competent, independent and impartial tribunal and the right to a public hearing
- Justifiable punishments are given to the perpetrators and that these are in accordance with applicable international human rights norms.
- The victims will receive an effective remedy including reparation and reforms to support non-repetition.
- Access to information for the family of Mr. Mali and his brother
- This and other cases of human rights violations committed by TNI members adjudicated by a military court are opened to the public.
- In the future any cases of human rights violations including torture and extrajudicial killings will be held in civil courts within the public judicial system.
