The Constitutional Court (MK) conducted a preliminary examination for a judicial review of Law No. 26 Year 2000 regarding the Human Rights Court (Human Rights Court Law) particularly Article 43 Paragraph (2) along with its Elucidation against the 1945 Constitution, on Tuesday, June 5, 2007 at 11.00 West Indonesia Time.
Article 43 Paragraph (2) provides that: The ad hoc Human Rights Court as intended in Paragraph (1) shall be established upon the recommendation of the Peopleâs Legislative Assembly of the Republic of Indonesia for certain incidents by a Presidential Decree.
While the elucidation reads as follows: In the case that the Peopleâs Legislative Assembly of the Republic of Indonesia recommends the establishment of an ad hoc Human Rights Court, it shall be based on the Peopleâs Legislative Assembly of the Republic of Indonesia assumption that a gross human rights violation has occurred which is restricted to specific locus and tempus delicti that happened prior to the enactment of this lawâ
Bambang Kristiono, a former member of the Indonesian National Army with the last rank of Major (Infantry), who was once the Commander of Battalion 42 Group 4 of the Indonesian Special Forces (Kopassus) as well as the Commander of the âRose Teamâ which was involved in the case of missing people or the 1997-98 Activists Abduction and Forced Disappearance Case, filed the petition for this judicial review with case NO. 13/PUU-V/2007.
In his exposition of the legal facts, the Petitioner explained that because of the 1997-98 Activists Abduction and Forced Disappearance case, he has served a prison sentence of one year and eight months based on the decision of the military court which had a legal binding effect, and the Petitioner had even been discharged from his unit. Now, after completing his sentence, the Petitioner feels that his freedom has been threatened again on account of the Peopleâs Legislative Assembly having established a special committee in a plenary session held on February 27, 2007 for handling the results of the 1997-98 Activists Abduction and Forced Disappearance investigation and proposing the establishment of an ad hoc Human Rights court for addressing the incident.
The Petitioner knew that, upon reading a letter of the Human Rights National Commission (Komnas HAM) to the Peopleâs Legislative Assembly regarding the summary of the 1997-97 Activists Abduction and Forced Disappearance investigation results, his name has been mentioned in the aforementioned recommendation as a person that should be held accountable.
According to the Petitioner, action of the Peopleâs Legislative Assembly establishing this special committee is none other than in the context of the implementation of the Human Rights Court Law. However, the Petitioner is of the opinion that the Peopleâs Legislative Assembly is not a legal institution, whereas gross Human rights violation, is a criminal act that must be handled by legal institutions acting under the free and independent judicial authority. Asides from that, the petitioner also stated that all decisions made by the Peopleâs Legislative Assembly are based on political interests. This is the reason why the Petitioner feels that the guaranteed protection and legal certainty that should be obtained by the Petitioner, is in fact threatened by political intervention.
Therefore, in his petitum, the Petitioner requests the Panel of Constitutional Justices to declare that Article 43 Paragraph (2) along with its Elucidation are contradictory to Article 27 Paragraph (1), Article 28D Paragraph (1) juncto Article 24 and Article 24A Paragraph (5), Article 28G Paragraph (1), and Article 28I Paragraph (2) of the 1945 Constitution, and to declare that the a quo article does not have a binding legal power.
The a quo article has actually been subject to a judicial review by the Constitutional Court in case No. 065/PUU-II/2004 based on a petition filed by Abilio Jose Osorio Soares. However, the Petitioner in this case, through his attorney M. Mahendratta, S.H, M.A., PhD stated different constitutional requirements as the reason for filing the petition.
In this hearing, the Chairperson of the Panel, Prof. H.A.S. Natabaya, S.H., L.L.M questioned the clarity of the connection between the provisions of Article 43 Paragraph (2) with the constitutional impairments suffered by the Petitioner. âThis Petition, only illustrates the concerns or fears of the Petitioner when in fact, we (MK) may not adjudicate based on fear alone but rather on the constitutional rights of the Petitioner that have been violated with the existence of this provisionâ, explained Natabaya.
Natabaya added that the Petitioner should have known that the Human Rights Court law is actually an analogy of the International tribunal for gross violation of Human Rights whose establishment is proposed by the Security Council. âAsides from that, in this petition, the Petitioner has not yet explained about the nebis in idem principle, considering the fact that the Petitioner has been prosecuted and served a sentence in the same caseâ, explained Natabaya.
In view of such feedbacks, the Petitioner, represented by his Attorney stated his acceptance and will put them in the revisions of his petition.
Before adjourning the hearing, the Chairperson of the Panel of Constitutional Justices gave 14 workdays for the Petitioner to revise his petition. (Wiwik Budi Wasito).
Tuesday, June 05, 2007 | 13:53 WIB 325