House’s View on Court on Gross Human Rights Violations

House Commission III member Arteria Dahlan giving a statement at the material judicial review hearing of Law No. 26 of 2000 on the Human Rights Court, Monday (11/28/2022). Photo by MKRI/Ifa.

Monday, November 28, 2022 | 18:21 WIB

JAKARTA (MKRI) — The House of Representatives (DPR) asserted that it would not be appropriate for the Indonesian judiciary to hand down a ban on perpetrators of gross human rights violations from visiting the country. It is impossible for the human rights court of Indonesia to try a perpetrator in absentia since it would violate the country’s criminal procedural law. Such a decision should be at the hand of the executive and the legislatures, said House Commission III member Arteria Dahlan at the material judicial review hearing of Law No. 26 of 2000 on Human Rights Court on Monday, November 28, 2022 in the plenary courtroom. The hearing had been scheduled to hear the House and the Attorney General’s Office (the president’s attorney).

Diplomatic-Political Approach

Responding to the Petitioner’s argument that the Indonesian human rights court should be able to prosecute the perpetrators of gross human rights violations committed in Indonesia who are foreign nationals, Arteria said the House believed it would be more appropriate that diplomatic and political approach is used to address the issue, as stipulated in Article 13 paragraph (1) letters a and g of Law No. 6 of 2011 on Immigration. The norm regulates that Indonesian immigration officers have the right to refuse foreigners from entering Indonesian territory based on immigration reasons. The decision, he said, can be enforced for life against the foreigner in question if the Indonesian Government considers them potentially causing disturbance on national security and public order.

“Therefore, the Petitioners’ argument that the Indonesian human rights court can prosecute perpetrators of gross human rights violations abroad who are foreign nationals is wrong. There is a legal basis for the Petitioners’ wish that at least [these perpetrators] could be barred from visiting Indonesia, that is, in the hand of the executive, in this case the Ministry of Law and Human Rights can refuse the entry of foreigners or foreign nationals in question into Indonesia,” Arteria explained before Chief Justice Anwar Usman and the other constitutional justices. 

Not Violating Constitution

Internationally, Arteria explained, victims of gross human rights violations deserve restitution, compensation, and rehabilitation, as stipulated in the UN General Assembly Resolution 4034 dated November 29, 1985. Nationally, this right is also regulated in a limited manner. However, Indonesia cannot request another country to hand over its citizen who committed gross human rights violations, due to an extradition agreement. Even if Indonesia ratified the Rome Statute to hand over perpetrators of gross human rights violations to the International Criminal Court (ICC), the word ‘everyone’ referred to by the provisions of the 1945 Constitution would not necessarily be interpreted universally.

Support for efforts to carry out world order based on freedom, lasting peace, and social justice cannot be carried out immediately by creating a state regulation that regulates other countries and citizens of other countries without the approval the countries in question. “So, the a quo provisions, especially the phrase by ‘the Indonesian citizens’ petitioned by the Petitioners do not violate the Constitution,” Arteria explained. 

President’s Statement Postponed

Meanwhile, Ahelya Abustam as an attorney at the Attorney General’s Office said on behalf of the president that President’s statement would be read by an Echelon I but the person in question was indisposed, and so requested that the reading be delayed. Chief Justice Anwar Usman stated announced that the next session would resume on Tuesday, December 6, 2022 at 11:00 WIB to hear the President’s statement.

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The case No. 89/PUU-XX/2022 on the material judicial review of Law No. 26 of 2000 on Human Rights Court was filed by Marzuki DarusmanMuhammad Busyro Muqoddas, and the Alliance of the Independent Journalists (AJI) (Petitioners I-III).

At the preliminary hearing on Monday, September 26, 2022, the Petitioners argued that the phrase ‘by an Indonesian citizen’ in Article 5 of the Human Rights Court Law had 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.

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.

(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.

The Petitioners believe there has been a legal vacuum in the case of gross human rights violations in Asia, so 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.

Therefore, 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.”  

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/30/2022 09:46 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, November 28, 2022 | 18:21 WIB 380