The Asian Human Rights Commission (AHRC) was happy to note that a new person has been appointed to the position of the Attorney General in Indonesia. This comes as a sigh of relief for the victims and the families of victims of gross human rights violations, and for the wider humanitarian community, who have long appealed and waited for a change at this level. It is no secret that the contribution made by the outgoing Attorney General amounted to nothing more than the reinforcement of a culture of impunity by refusing to prosecute the perpetrators of gross human rights violations, even when adequate investigations were conducted by the national human rights commission, Komnas HAM.
The AHRC has in the past highlighted the numerous instances where the previous Attorney General should have either conducted further investigations or pressed for prosecution on the basis of the available evidence. Besides, it was pointed out how the failure to prosecute has contributed to the near collapse of the rule of law and the loss of credibility in the justice system in Indonesia. We also pointed out that the Attorney General failed the nation by not introducing and implementing the required legislation through the House of Representatives, and for not amending the existing laws so that they would have become relevant and effective. Thus on all counts, the outgoing Attorney General has failed the nation state of Indonesia in its struggle for democracy and the safeguarding of human rights. The conclusion that anyone will draw from his/her past experiences, is that the Attorney General is part and parcel of the vicious cycle of human rights violations in the country.
Challenges
We at the AHRC, together with the international humanitarian community would like to congratulate you on your new appointment as the Attorney General and wish you success in your attempts to establish fair trial and the rule of law in the country. We also would like to draw your attention to the UN Guidelines on the Role of the Prosecutor and article 14 of the International Covenant on Civil and Political Rights (ICCPR) which are very much related to the role played by the prosecutor.
“Whereas prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles (equality before the law, presumption of innocence and the right to a fair hearing), thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime…”
“Guidelines”; Paragraph 4
The prosecution mechanism has the twin functions of;
1) Maintaining the rule of law.
2) Upholding fair trail.
These functions are to be carried out with absolute independence, accountability and on the basis of established legal principles. Since the public prosecutor is prosecuting in the name of society, accountability and transparency are absolute imperatives. It is the only state arm that can ensure justice to the ordinary citizens
1.1 The maintenance of the rule of law requires that the existing laws are enforced and new laws are introduced when the existing laws are inadequate or outdated.
1.2 Prosecution requires the presence of competent persons with the legal power to prosecute. Competence requires professionalism and in this case it is important that resources are found to get the persons trained in the latest techniques, approaches and legal strategies.
1.3 Prosecution must be able to make its decisions solely on the basis of the law and must shield itself from the influence of the executive, the judiciary and the police.
Upholding Fair Trial
“Prosecutors shall perform an active role in criminal proceedings, including institutions of prosecution and , and where authorized by law or consistent with local practice, in the investigation of crimes, supervision over the legality of these investigations, supervision of the executions of court decisions and the exercise of other functions as representatives of the public interest.” Guidelines 11
2.1 A key responsibility of the prosecution is conducting its own impartial investigations and supervising the legality of the investigations conducted by the police. It is up to the prosecution to ensure that no illegal methods such as torture have been used in the investigation. In cases where it has been found that torture has been used during the course of investigations, it is required that the perpetrators are punished and the victims are duly redressed.
2.2 It is also up to the prosecution to review the evidence and to direct the investigations so as to prevent any faulty investigations.
2.3 That the right for fair trial is ensured by ending court delays, providing protection to all witnesses, complainants and to bring about the necessary legal amendments to overcome obstructions for a fair trial.
2.4 The present practice of arrest and detention, which are inconsistent with the requirements found in ICCPR be amended.
Given your appointment coinciding with the anniversary of the horrific events of Trisakti, Semangi and the May riots which also occurred during the month of May, the expectations from the ordinary citizens, particularly of the relatives of the families of the victims will be quite high. It is the fervent hope of the Asian Human Rights Commission that your appointment as the new Attorney General will lead to the birth of a new culture based on professionalism, commitment to upholding the law and providing redress to the victims
