Boundaries of Human Rights Court Questioned

Legal counsel Feri Amsari conveying the petition’s arguments before the constitutional justices at the preliminary hearing of the judicial review of Law No. 26 of 2000 on the Human Rights Court, Monday (9/26/2022) virtually. Photo by MKRI/Panji.

Monday, September 26, 2022 | 17:17 WIB

JAKARTA (MKRI)—The current political situation in Myanmar is still in disarray after the military declared a state of emergency. Gross human rights violations have been committed and are still ongoing. This compelled Marzuki DarusmanMuhammad Busyro Muqoddas, and the Alliance of the Independent Journalists (AJI) to file a material judicial review petition against Law No. 26 of 2000 on Human Rights Court. The preliminary hearing for the case No. 89/PUU-XX/2022 took place on Monday, September 26, 2022 in the plenary courtroom of the Constitutional Court (MK), with the Petitioners attending virtually.

The Petitioners are argued that the phrase ‘by an Indonesian citizen’ in Article 5 of the Human Rights Court Law is unconstitutional. The article reads, “Human Rights Court also has the authority to hear and rule on cases of gross violations of human rights perpetrated by an Indonesian citizen outside the territorial boundaries of the Republic of Indonesia.” The Petitioners’ legal counsel, Feri Amsari, argued that the phrase has eliminated the state’s responsibility to keep world peace, as the 1945 Constitution mandated, and eliminated the state’s responsibility in crimes in which another state is involved.

“[(Argentine professor of human rights law)] Juan E. Mendez stated that the state has the responsibility to protect victims and the people in case of massive, systemic crimes on human rights. The problem is that under the limits of Article 5 [of the Human Rights Court Law], victims of human rights violations in Myanmar would find it difficult to fight for their constitutional rights. Myanmar [citizens] cannot petition the International Criminal Court because Myanmar did not sign the Rome Statute. It would also be impossible for a country such as Myanmar with its military junta to establish a human rights court to try their officials who have committed human rights violations,” Feri explained.

The Petitioners believe there has been a legal vacuum in the case of gross human rights violations in Asia. Feri argued that Indonesia’s diplomacy, which prioritizes international relations, is not in line with the intent of the 1945 Constitution.

“The state legislation also does not put a sense of fear in perpetrators of human rights violations to enter Indonesian territory because of the phrase ‘by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000,” he said.

Meanwhile, Marzuki Darusman, a Supreme Court justice of 1999–2001, asserted that there needs to be a way to protect citizens, not only of Myanmar but also of ASEAN in general, so that they could have the right to personal defense. He said that it would be a very progressive legal move to grant the petition.

“Because [this law] would apply for ASEAN as a whole and be a progressive development of international law, which aims at strengthening human rights to defend oneself against tyranny and human rights violations committed by the state,” he added.

In the petitum, the Petitioners requested that the Court grant the entire petition and “declare the phrase ‘by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000 on Human Rights Court unconstitutional.”

Justices’ Advice

Constitutional Justice Enny Nurbaningsih highlighted redundancy in the introduction and the posita. “No introduction is necessary. If it is urgent, for example if it supports the posita, please move it to the posita. If it supports the legal standing, please move it to the elaboration of legal standing,” she advised.

Meanwhile, Constitutional Justice Saldi Isra recommended that the Petitioners clarify the elaboration of constitutional impairment. “Is it enough as a basis or are there any other constitutional rights that were harmed by the enactment of Article 5. It has not been clearly elaborated in this petition. I have a concern whether each part was drafted separately. One part was written in Padang, one in Jakarta, one somewhere else. [The petition] is not well-structured following the format required by the Constitutional Court. Mr. Marzuki Darusman, please remind the legal counsel and the Petitioners to be more serious. This issue is a serious matter because if [the petition] is granted, it will bring about a paradigm shift in the national law, especially in relation to human rights issues,” he emphasized.

Constitutional Justice Wahiduddin Adams (panel chair) announced that the Petitioners had 14 workdays to revise the petition and submit it by October 10, 2022. 

Writer        : Lulu Anjarsari P.
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/13/2022 11:22 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Monday, September 26, 2022 | 17:17 WIB 350