Clearing up Settlement of Gross Human Rights Violations

According to Professor Asvi Warman Adam, the remaining three years of the current administration is not enough for Jokowi to resolve the nation’s past gross human rights violation cases, either through judicial or non-judicial approaches based on the Commission for Truth and Reconciliation Act (KKR).

He makes the statement in his article entitled “Mendesak, Penyelesaian Kasus HAM Berat Masa Lalu” [settlement of serious past human rights cases is urgent] in Kompas (16/4/2021).

He says that the planned Presidential Work Unit for Handling Cases of Serious Human Rights Violations through the Non-judicial Mechanism (UKP-PPHB) can be considered a replacement for the KKR. He adds that UKP-PPHB has the authority to examine a case, declare it a gross violation of human rights, and name the institution held responsible for the human rights offenses and the compensation deservedly provided for the families of the victims.

The crucial role of Komnas HAM

I agree that serious human rights cases need to be resolved urgently, but things need to be cleared up. The article does not mention the National Commission on Human Rights (Komnas HAM). Is it considered insignificant or irrelevant to the settlement of gross human rights violation cases?

Also read:

^ Waiting for Godot every May

^ Waiting for the President’s Promises

^ Government Wants Case Classification

In fact, Komnas HAM is the only institution mandated by law to declare an incident as being a gross affront to human rights. Article 18 of Law No. 26/2000 on human rights court stipulates that "investigations of gross human rights violations are carried out by the National Commission on Human Rights".

No other institution has the legal privilege to investigate or examine allegations of human rights violations. It is not carried out by law enforcement officers of the National Police, nor by the Attorney General’s Office (AGO), let alone the UKP-PPHB.

An incident cannot be declared a gross human rights violation without being preceded by a Komnas HAM investigation based on the mandate of Law No. 26/2000.

Komnas HAM does play a crucial role in overseeing human rights. An incident cannot be declared a gross human rights violation without being preceded by a Komnas HAM investigation based on the mandate of Law No. 26/2000.

It is at the forefront in guarding the legal process of human rights offenses. In this context, Komnas HAM is -- in a limited way -- part of an integrated criminal justice system.

So far, there are 15 incidents that have been investigated and declared by Komnas HAM as gross human rights violations. Two cases -- East Timor and Tanjung Priok -- were processed at the ad hoc human rights court, and another case (Abepura) was brought up to the human rights court.

Also read: Families of 1998 Victims Refuse to Give up

Some might consider the process and the results disappointing, but the legal process for those three cases has been completed and closed.

The proceedings of 12 other cases, currently at the hands of AGO, are still unclear. It means that other incidents apart from those 12 cases have not been declared a gross violation of human rights with Komnas HAM having yet to announce its investigation results.

Strictly speaking, the UKP-PPHB does not have the legal mandate to declare an event being a gross offence against human rights. Neither can it declare that the 12 cases carry no gross human rights violations.

KOMPAS/WAWAN H PRABOWO

Humanitarian activists who are members of the Solidarity Network for Victims for Justice (JSKK) take part in the 583th Kamisan Silence Action opposite the Merdeka Palace in Jakarta, Thursday (25/4/2019).

The authority belongs only to the AGO and the ad hoc human rights court ot human rights court.

As an investigator, Komnas HAM does not have the capacity to agree or disagree with the non-judicial settlement option. If the cases could be approached non-judicially, what’s the point of Komnas HAM carrying out its investigations?

Non-judicial settlement

Why were non-judicial approaches for settlement not taken from the onset? It would be illogical and illegal for Komnas HAM to annul the results of its own investigations. Law No. 26/2000 does not regulate it.

Also read: We are not Alone, so We are Strong

However, solutions through non-judicial approaches are still open to be pursued. Article 47 stipulates that gross human rights violations that occurs before the enactment of Law No. 26/2000 does not rule out a settlement by the KKR, on condition that the legality basis must be in the form of a law. That is the non-judicial settlement scheme mandated by Law No. 26/2000, which is currently still in effect.

That is why the KKR Law was formed, even though – being the first step toward settling non-judicial cases of past gross human rights violations -- it was later canceled by the Constitutional Court (MK) decree No. 006/PUU-IV/2006.

Hopes for faster process can be facilitated through a government regulation in lieu of law issued by the President.

If the UKP-PPHB is to replace KKR, the legal umbrella must be in the form of a government regulation in lieu of law so that its existence and results of work have strong legality.

Should a new KKR law is formed, it does not mean that a non-judicial process can ignore the results of the Komnas HAM investigation.

This is in accordance of Constitutional Court ruling that legal policies must be in line with the 1945 Constitution and that universal human rights instruments must be seen as the first option. Should a new KKR law is formed, it does not mean that a non-judicial process can ignore the results of the Komnas HAM investigation. The results of its investigation can be taken as legal document until AGO arrives at the final legal conclusion, either to proceed to the investigation stage or issue an investigation-termination warrant (SP3).

Kompas

Trisakti University and University of Indonesia students held a sow of flowers to commemorate the 14th anniversary of the death of their colleague, Yan Yun Hap in the Semanggi II incident in front of the Trisakti Campus, Jakarta, Tuesday (24/9/2013).

Whichever legal conclusion drawn by AGO (investigation or SP3) must be respected. As far as Komnas HAM’s concern, AGO conclusion means the former’s results of investigations are not left in suspense.

Regardless of what assessment given to the Komnas HAM’s work, as long as it is done in the corridor of Law No. 26/2000, the results of its investigations remain as a positive law (ius constitutum). Non-judicial approach that negates the results of the Komnas HAM investigation would be deemed as a hasty and reckless move. Instead of giving the expected final solution, it might breed new complexity of the problem.

Either judicial or non-judicial mechanism opted to deal with serious violation of human rights cases must take into account the results of Komnas HAM investigations.

In order to reach a comprehensive, systematic and complete solution, state stakeholder institutions need to immediately formulate and agree on the roadmap of gross human rights violations. The roadmap is a binding and executorial collective guidance to put to an end the exhausting historic burden of the nation.

KANWIL KUMHAM JAWA BARAT

Munafrizal Manan

Munafrizal Manan, Deputy Chairman of the National Commission on Human Rights (Komnas HAM), alumnus of International Human Rights Law and Criminal Justice, Universiteit Utrecht.

(This article was translated by Musthofid).