An Open Letter from the Asian Human Rights Commission and KontraS to Mr. Yasonna Hamonangan Laoly, the Indonesian Minister of Law and Human Rights
Mr. Yasonna Hamonangan Laoly
Minister of Law and Human Rights
Jalan H.R. Rasuna Said Kavling 6-7 Kuningan
Jakarta 12940, INDONESIA
Tel: +62 21 525 3004
Fax: +62 21 526 3082
Dear Mr. Laoly,
INDONESIA: On Strengthening the Draft TRC Bill
The Asian Human Rights Commission (AHRC), a Hong Kong-based regional human rights organisation, along with the Commission for the Disappeared and Victims of Violence (KontraS), an Indonesian human rights NGO, would like to submit to you critical inputs related to the latest Bill on the Truth and Reconciliation Commission (TRC).
We note that the discourse about the TRC Law began in Indonesia in 2003, and, a year after that, the House of Representatives (DPR) promulgated Law No. 27 of 2004 on the Establishment of the Truth and Reconciliation Commission. The Law mandated the Indonesian government to establish a TRC within six months; in March 2005, the President issued a decree on the creation of a panel to select Commissioners of the TRC.
However, Law No. 27 failed to meet the standards of international human rights law. Article 27 of the Law states that remedy could be deemed fulfilled with the government granting amnesty to perpetrators. And, Article 25 of the Law states that cases investigated by the National Commission on Human Rights, and prosecuted by a human rights court, cannot be brought into the mechanism of the TRC.
As a result of such provisions, in 2006, Indonesian Civil Society Organizations challenged Law No. 27 in the Constitutional Court and the Court finally repealed the Law.
In light of past experience, we express our concern that the new law on TRC must be of a high standard, in line with international human rights law and the Indonesian Constitution, 1945. Otherwise, the new law will also fail to address the needs of victims and their families and fail to bring an end to impunity.
Recently, we have received information that a new Bill on TRC has been included in the National Legislation Program, PROLEGNAS. This means the drafting process in Parliament will commence soon.
In light of these developments, we would like to note several weaknesses in the New Bill that must be addressed by the Government, and, in particular, the Minister of Law and Human Rights, who is responsible for submitting the Bill to Parliament.
The weaknesses we note are as follows:
- Article 3(a) of the Bill does not provide an exact time window with regard to the human rights violation that will be addressed by the TRC. We propose a time frame from the year 1965 to the year 2005. Mass killings of pro-communist citizens began in 1965, while 2005 witnessed the peace process in Aceh, marked by the Helshinki Memorandum of Understanding.
- The TRC is being designed for reconciliation, and as a substitute for the Human Rights Court – based on the explanation in Article 1, 4, 6, and 28 of the draft Bill. We argue that, ideally, the TRC should function as a complement to the Human Rights Court, as stated in Law no. 26 of 2000. Furthermore, the creation of the TRC cannot fulfill the State’s obligation to punish perpetrators of gross human rights violation, as stated in Article 47, paragraph 1, of Law No. 26 of 2000: “Resolution of gross violations of human rights occurring prior to the coming into force of this act may be undertaken by a Truth and Reconciliation Commission.” We wish to emphasize that the new Law should enable the TRC to address cases in complement to the Human Rights Court.
- The TRC Bill has impeded the establishment of a Local TRC in the Aceh Province and the Papua Province of Indonesia. The Minister of Home Affairs has stated that the local TRCs shall be established based on the law related to the national TRC. Meanwhile, we acknowledge that, in 2013, the Acehnese Parliament passed a local law on Aceh TRC, called Qanun, which is fully supported by the victims of past military operations in Aceh, as well as Acehnese civil society. Therefore, we strongly oppose establishing local TRCs in the Aceh and Papua Provinces that are based on the national TRC Bill. The national government must ensure that diverse local TRCs can be established to fulfill the needs of victims and their families.
- The national TRC Bill does not provide efective remedy. We find that the Bill only addresses compensation and/or rehabilitation, without mentioning and seeking to provide restitution to the victim.
- This Bill does not refer to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by UN General Assembly resolution 60/147 of 16 December 2005.
- The Bill defines gross human rights violations based on Law No. 26 of 2000, i.e. the Law related to the Human Rights Court, which can mostly be grouped as civil and political rights violations. We would like to point out that many gross human rights violations committed in the past have been due to economic, social, and cultural reasons, such as land grabbing, forced eviction, human rights violations in relation to business areas, etc. Past human rights violations also merit viewing cases from the prism of International Humanitarian Law.
- The TRC Bill does not define who the perpetrators are. The lack of clarity will make it difficult to measure the level of involvement and culpability of the perpetrators. Experience – based upon the establishment of ad hoc human rights court for Tanjung Priok between 2002 and 2006 and the ad hoc human rights court for East Timor between 1999 and 2005 – shows that the main perpetrators have never been prosecuted at the Human Rights Court. This has occurred, despite the investigation report of the National Commission on Human Rights in Tanjung Priok’s case and the East Timor case showing that the crimes fall within the definition of systematic or widespread crime that had the support of high-level power of decision makers.
Based upon the above-mentioned lacuna, we respectfully request the Minister of Law and Human Rights to review and revise the Bill on TRC, embracing this input, and to organize public hearings to obtain more inputs and critical points from Civil Society Organizations, victims, and the family of victims, from various places in Indonesia.
Lastly, we also call upon the Minister to invite an international expert on transitional justice, as well as invite the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, to assist the Indonesian government to review the draft Bill on TRC so it may be in line with international human rights law and standards.
Thank you for your consideration. We look forward to hearing back from you.
Yours Sincerely,
Bijo Francis
Executive Director of AHRC
Haris Azhar
Coordinator of KontraS
