The Petitioners’ counsel Feri Amsari (center) reading out the ruling for the material judicial review of Law No. 26 of 2000 on the Human Rights Court, Friday (4/14/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire material judicial review petition of Law No. 26 of 2000 on Human Rights Court filed by Marzuki Darusman, Muhammad Busyro Muqoddas, and the Alliance of the Independent Journalists (AJI).

“[The Court] declares to reject the Petitioners’ petition in its entirety,” Chief Justice Anwar Usman pronounced alongside the other constitutional justices at the ruling hearing for case No. 89/PUU-XX/2022 on Friday, April 14, 2023 in the plenary courtroom.

The Petitioners 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.”

In the legal considerations delivered by Constitutional Justice Wahiduddin Adams, the Court asserted that the politics of human rights law in Indonesia is not only based on the universality of human rights, but maintains socio-cultural validity based on particularism, which cannot be separated from the Pancasila values. Therefore, the implementation and fulfillment of human rights must prioritize national interests as determined in the constitution of each country. Thus, although the formulation of human rights in the 1945 Constitution contains the phrase “every person,” it does not automatically create an active responsibility for the Indonesian state (government) to protect the human rights of every individual who is not a citizen.

In addition, the phrase in Chapter XA of the 1945 Constitution, relating to constitutional rights, do not recognize any distinction between the human rights of Indonesian citizens and foreign nationals and very likely would cause misunderstanding if interpreted free from the context of protection and enforcement of human rights that is the state’s responsibility. Such interpretation would mean that the state has the obligation and responsibility to play an active role in providing protection to foreign nationals.

Although the phrase “every person” in the 1945 Constitution can be interpreted to mean that human rights not only belong to Indonesian citizens, but also to foreign nationals, whose human rights are guaranteed and protected by the Indonesian legal and judicial system, it does not mean that the Indonesian legal system automatically applies that everyone must be treated the same and get the same rights without considering their citizenship status. 

Human Rights Violations in Myanmar

Human rights violations in Myanmar cannot be separated from politics. Indonesia has a commitment to implement world order, lasting peace, and social justice based on the principles of foreign relations and foreign policy based on Pancasila and the 1945 Constitution, i.e. the principle of free and active for national interests.

In this regard, the Elucidation to Article 3 of Law No. 37 of 1999 on Foreign Relations provides the definition of “free and active” foreign policy, i.e. it does not mean neutrality but freedom to determine attitudes and policies towards international problems and not to bind itself a priori to any one world power. In addition, it also means actively making contribution, both in ideas and active participation in resolving conflicts, disputes, and other world problems, for the realization of world order based on independence, lasting peace, and social justice. Meanwhile, for national interest means that foreign policy carried out to support the realization of national goals as stipulated in Paragraph IV of the Preamble to the 1945 Constitution.

Therefore, said Deputy Chief Justice Saldi Isra, the government has a very strategic role to determine the policy steps to be taken in international relations with other countries, including those related to human rights enforcement, where it has an obligation to consider all aspects related to the risks or impacts that will arise as an excess of foreign policy taken from legal, political, social, and economic aspects. The implementation of Indonesia’s foreign policy cannot be separated from the conception of national resilience in order to realize endurance to ensure the survival and development of the life of the Indonesian nation. 

Universal Jurisdiction

The Petitioners argued that the phrase ‘by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000 and its elucidation was unconstitutional and they requested that it be declared unconstitutional so that universal jurisdiction can be applied in Indonesia. This, they said, was part of Indonesia’s responsibility in implementing independence, lasting peace, and social justice in line with the Preamble to the 1945 Constitution.

The Petitioners, the deputy chief justice said, asserted that such a decision would allow Indonesia to charge perpetrators of human rights violations from any country who enter Indonesian territory and try them in the Indonesian Human Rights Court, including for cases of gross human rights violations in Myanmar.

The Court emphasizes that the background of the establishment of Law No. 26 of 2000 could not be separated from “the role of the international community to the Indonesian government to immediately bring to justice the perpetrators of crimes against humanity that occurred in East Timor.” The establishment of the Human Rights Court is one of Indonesia’s efforts to fulfill its international obligations by maximizing national legal mechanism in dealing with human rights violations within the country (exhaustion of local remedies). This is intended to prevent international legal mechanism from trying Indonesian citizens suspected of committing gross human rights violations, because international courts cannot automatically replace the role of national courts without passing the role of national courts.

Next, Constitutional Justice Enny Nurbaningsih explained that jurisdiction is always interrelated with state sovereignty and authority. Every sovereign state must have jurisdiction to show authority to its people and the international community. It is universally recognized that every state has the authority to regulate actions within its own territory and other actions that can harm national interests. In the context of universal jurisdiction, the interests of the international community must be protected from the dangers posed by serious crimes, so perpetrators must be punished regardless of the connection between the state that will exercise its jurisdiction, the perpetrators, the victims, and the locations of the crimes (justice beyond borders). In this sense, awareness and cooperation between countries is an important step to implementing universal jurisdiction because, otherwise, it can be misinterpreted as a form of intervention in the sovereignty of other countries. In this context, there are important things that must be considered, such as the dominance of political content in the implementation of universal jurisdiction because it is related to the state’s willingness to let its citizens be tried by other countries. One of the objectives of universal jurisdiction, i.e. keeping any country from providing a safe haven for perpetrators of gross human rights violations, is also very political, even though the process is through a trial.

The Court asserted that universal jurisdiction is not absolute, but must be balanced with international obligations and other interests of the state, so the state can refuse to exercise universal jurisdiction if the global political, social, and economic dynamics or other needs and interests (rapidly changing situation) do not allow. On the one hand, especially it could potentially interfere with national interests, and on the other hand, it is also not necessarily able to effectively provide a sense of justice for victims of gross human rights violations.

The Court also stated that there might be challenges, potential, and impact caused by the application of universal jurisdiction. It is not the only forum to try perpetrators of gross human rights violations across countries. In addition, it could potentially be misinterpreted as intervention in state sovereignty, which could actually cause problems in diplomatic relations between countries and affect the state’s credibility in international relations. Therefore, it would be better if universal jurisdiction is applied regionally because the proximity to the place of the crime and the availability of evidence would make it easier for arrangements between parties.

The Court emphasized that the Petitioners’ argument that by omitting the phrase ‘by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000 and its elucidation, universal jurisdiction can be applied so that the Indonesian Human Rights Court can try perpetrators of gross human rights violations committed by citizens of any state was legally groundless in its entirety.

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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.

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.”    

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

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.

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