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Asian Federation Federation Against Involuntary Disappearances

Asian Federation Federation Against Involuntary Disappearances

Asian Federation Against Involuntary Disappearances

Asian Federation Federation Against Involuntary Disappearances

Asian Federation Against Involuntary Disappearances

Asian Federation Federation Against Involuntary Disappearances

Asian Federation Against Involuntary Disappearances

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Indonesia

Truth and Reconciliation Commission:
A Two - Edged Knife

by Mugiyanto¹

“We have been betrayed. The previous government gave the killers golden handshakes and the present government gives them amnesty. But the victims have been left empty-handed.” (Duma Khumalo speaking for many victims in Guardian 3 January 2000).²

Indonesia under General Suharto was a land of blood. When he took power from the popular President Sukarno, hundreds of thousands of people with left-wing political affiliation were caught, tortured, disappeared and killed. These were committed under the climate of impunity without trial and prosecution. Before he was ousted in 1998, political violence had spread all over the country, victimizing hundreds of people either being burnt in buildings, or shot by the police and military. Many others disappeared. Seeing this, Eduardo Gonzales, a senior associate in the International Center for Transitional Justice based in New York, stated in a workshop on Transitional Justice in Yogyakarta, Indonesia in 2003 that General Augusto Pinochet is only a small baby compared to General Suharto (in terms of gross human rights violations committed). Why do the Indonesian people and the whole world talk about Pinochet, but remain silent seeing Suharto untouchable by justice? The question remains unanswered.

Now, Indonesia is supposedly undergoing a transition to democracy. In the transition process in Indonesia, the transitional government is constructed and composed not only of the new forces apart from the previous dictatorial regime. After the fall of General Suharto in 1998, the forces and elements of the New Order (the so-called Suharto Regime) remain part of the new government. Accordingly, they influence the people's attitude towards human rights violation in the past. However, the transitional government can not free itself from its obligation to deal with the bitter past, which includes the duty to remember, the duty to prosecute the perpetrators of human rights violations and the obligation to deliver justice to the victims who have the right to know, the right to justice and the right to reparation.

In 1999 and 2000, the Indonesian government issued Laws on Human Rights (UU No. 39/1999 and UU No. 26/2000). In the same year in 2000, the People's Consultative Assembly (MPR³) also issued the MPR Decision No. V/2000 on the Restoration of National Unity and Integrity, which recommends the need to have a Truth and Reconciliation Commission (Komisi Kebenaran dan Rekonsiliasi - KKR⁴). The implementation of Law No. 26/2000 has been in the human rights tribunal for the East Timor Case which ends with public disappointment and the Tanjung Priok Case which is still going on at the moment. Other cases of human rights violations that occurred before the issuance of the Human Rights Law have been suggested to be handled by the Truth and Reconciliation Commission.

Now, based on the MPR Decision No. V/2000, the parliament is deliberating the Draft Law on the Truth and Reconciliation Commission. It has undergone the hearing session and is now awaiting finalization for approval. The head of the Parliament Special Committee of the Draft Law on Truth and Reconciliation Commission (PANSUS DPR) has stated to the public that despite the rejection from most of the victims' groups, the Parliament will approve the Law before Election (meaning before April 2004), because the need for the Commission has been recommended by the Assembly since 2000. Despite the opposition from victims' groups and other human rights organizations, the Parliament will still pass it, because it has been the result of political compromises of the political forces in the parliament.

Why do the victims' groups reject the Draft Law on TRC?

There have been intense discussions and debates among victims' organizations and other non-government organizations since the government handed the proposed draft law over to the parliament. The debates are centered on whether it is proper to let the present parliament and government where forces and elements of violators of human rights violation in the past are still very dominant, to produce a good Truth and Reconciliation Commission. Another argument says that however bad the situation is at the moment, it is the only opportunity for Indonesia to have a TRC. The opportunity comes only once and we may never get that again.

The victims' groups, initiated by IKOHI, have been carrying out a series of meetings for taking up a position regarding the plan of the parliament and government to approve the Law on the TRC. Presenting sources from different perspectives and points of view, the victims' group has been trying to conduct a thorough approach. In a series of meetings, there are always rejections of the TRC in the beginning for the simple reason: the victims are allergic to the word “reconciliation.” The victims believe that reconciliation is impossible if truth and justice do not come first. In such a situation like Indonesia, where the judicial system is broken and the perpetrators are dominant, the truth will never be revealed and justice will never be delivered. If reconciliation is there, then it will be a forced reconciliation. A forced reconciliation will only be another time-bomb leading to other injustices.

As far as the victims' groups are concerned, there are several significant conditions and principles lacking in the TRC to be implemented at the moment. The first and foremost is the social and political context. If we are about to adopt the South African TRC, implementing TRC in Indonesia at this moment will be the first mistake. The fall of apartheid is very different from the fall of Dictator Suharto. The fall of Suharto was not followed by a replacement of the repressive system and its supporters. The winner of the reformasi movement in 1998 are not necessarily the pro-reform people, just more elements of corrupt and repressive political forces. We do not have figures like Nelson Mandela and Desmond Tutu.

In terms of the content, the Indonesian TRC is designed as a substitution for the judiciary, and not complementary to it . It also applies the principles of ne bis in idem, so that the cases handled by the Commission will never be brought to court. The TRC is also designed to have authority to propose amnesty for the perpetrators to the President. This issue on amnesty for the TRC in Indonesia has also been strongly opposed by Paul van Zyl and Priscilla B. Hayner of the ICTJ. The TRC in Indonesia mentions that amnesty for the perpetrators is a requirement for the victims to get the right to reparation.

Based on such a position, with the conclusion that the Indonesian TRC will benefit more the perpetrators rather than the victims and the public, the victims' groups in the hearing session with the PANSUS DPR on November 19, 2003 declared their rejection of the Draft Law of the Truth and Reconciliation Commission being deliberated in the parliament. In the last sentence, they declared that the TRC will only be a means of impunity.

As closing a reference, the press release of the survivors' organization Khulumani on October 27, 1999 showed their frustration. It is significant , knowing that the South African TRC is so far acknowledged to be best of all truth commissions, “The TRC has compromised our right to justice and to making civil claims . In good faith, we came forward and suffered the re-traumatization of exposing our wounds to the public in the understanding that this was necessary in order to be considered for reparation. We now feel that we have been used in a cynical process of political expediency.”

go back to April 2004 issue

¹Mugiyanto, a victim of disappearances, now the chairperson of IKOHI
Mugiyanto, is the founding chairperson of IKOHI. He himself became a victim of involuntary disappearance when he was kept in secret detention, during which he was physically and psychologically tortured by the Kopassus immediately after the fall of Suharto in 1998. Three months after, he was released.

²The Politics of Truth and Reconciliation in South Africa, Legitimizing the Post-Apartheid State, Richard A Wilson 2001, pp. 23.

³The People's Consultative Assembly (MPR) is the highest Indonesian state institution. It is also the body which elects the president

⁴The TRC (KKR) in Indonesia is said by the government and the parliament to be an adoption of the South African TRC