45

(a) The perpetrators of serious crimes under international law may not benefit

from such measures until such time as the State has met the obligations

to which principle 19 refers to the The perpetrators have been prosecuted

before a court with jurisdiction-whether international, internationalized or

national-outside the State in question;

(b) Amnesties and other measures of clemency shall be without effect with

respect to the victims ' right to reparation, to which principles 31 through 34

refer, and shall not prejudice the right to know;

(c) Insofar as it may be interpreted as an admission of guilt, amnesty cannot

be imposed on individuals prosecuted or sentenced for acts connected

with the peaceful exercise of their right to freedom of opinion and

expression. When they have merely exercised this legitimate right, as

guaranteed by articles 18 to 20 of the Universal Declaration of Human

Rights and 18, 19, 21 and 22 of the International Covenant on Civil and

Political Rights, the law shall consider any judicial or other decision

concerning them to be null and void; their detention shall be ended

unconditionally and without delay;

(d) Any individual convicted of offences other than those to which paragraph

(c) of this principle refers who comes within the scope of an amnesty is

entitled to refuse it and request a retrial, if he or she has been tried without

benefit of the right to a fair hearing guaranteed by articles 10 and 11 of the

Universal Declaration of Human Rights and articles 9, 14 and 15 of the

International Covenant on Civil and Political Rights, or if he or she was

convicted on the basis of a statement established to have been made as a

result of inhuman or degrading interrogation, especially under torture.

127. UN Human Rights Commission Resolution, (Resolution: 2004/72, Impunity,

E/CN.4/RES/2004/72), 21 April 2004, (Evidence P-28) in Point 3 also confirms the following:

... amnesties should not be granted to those who commit violations of human rights

rights and international humanitarian law that constitute crimes, urges States

to take action in accordance with their obligations under international law and

welcomes the lifting, waiving, or nullification of amnesties and other

immunities;

46

128. Aside from the UN agency, the amnesty ban on human rights violations

This heavy human is also affirmed in the jurisprudence of the various

courts in the world;

129. In the case at the International Court of Justice for Yugoslavia (ICTY), the ruling

the Appeals for the case of the Pensue v. Furundzija, 10 December 1998, assessed

that the domestic amnesty included crimes, such as

torture, which was the case of the amnesty for Yugoslavia. has the status of jus cogens will not be able to receive recognition

international legally. (Paragraph 155) (Evidence P-29). Based on the case then the torture crimes that have gained amnesty

remain tried by the international court;

130. The Inter-American Court of Human Rights jurisprudence

consistently confirms his stance prohibiting amnesty for violations

severe human rights, among others in the case of Barios Altos (Barios Altos

case, IACHR, Vol. 75, Series C), 14 March 2001 2000 (Evidence P-30) at Point 4 of the ruling, the court declared that the amnesty "contradictory

The American Convention on Human Rights, consequently having no effect

The heavy human rights that occurred prior to the enactment of this law

not closing the possible settlement by the Truth Commission

and Reconciliation "; Verse (2)" Truth and Reconciliation Commission as

4

56

referred to in paragraph (1) is set up with the Act ". In addition to the task

to enforce the truth by revealing the rights violations

the heavy human being that occurred in the pre-enactment of Invite-

invite Number 26 Year 2000 on the Human Rights Court, the Commission

it also carries out Reconciliation in the perspective of shared interests

as a nation. The steps that are taken are disclosure

truth, error recognition, apology, peace, enforcement

law, amnesty, rehabilitation, or other beneficial alternative to

uphold unity and unity nation by keeping an eye on

a sense of fairness in society.

The formation of the Law on the Truth Commission and

Reconciliation among others is based on consideration as follows:

1. Gross violations of humanity (gross violations of

human rights) that includes crimes against humanity and genocide

(crimes againt humanity, genocide) that occurred in the prior year.

enactment of Law No. 26 of 2000 of the Court of Rights

Human Human Rights, which to date have not been accounted for

tuntas, so that the victim or victim's family are experts

His successor is still not obtaining certainty regarding the background

occurrence of rights violations Human-heavy human rights to victims.

In addition to not getting compensation, restitution, and/or rehabilitation of

the suffering they experienced, the waiver of this responsibility has

elicits dissatisfaction, cynicism, apathy, and distrust

are great against legal institutions as the state is deemed to provide

exemption from punishment to the perpetrators;

2. Overall completion of human rights violations

(gross violations of human rights)

before the enactment of Law No. 26 of 2000 on

The Court of Rights Human, very urgen and urged for immediate

done because there is still a majority of people who tend to be

cynical, apathetic and dissatisfied with the Government's handling of the

human rights violations. That. Despite this, the tension factor

politics occurring in the Republic of the Republic of Indonesia also should not be

ignored and allowed to continue protracted without any certainty

57

settlement;

3. With the foreseeable truth about human rights violations

the heavy human beings that occurred in the prior days of the Invite-

Invite Number 26 Year 2000 about the Court of Human Rights,

then through the Truth Commission and Reconciliation (The truth and

reconsiliation commission) expected to be reconciled to a reconciliation of use

enforcing national unity and unity;

Law Number 27 of the Year 2004 on the Commission of Truth and

Conciliation is substantially different to the provisions set out in

Act 26 of 2000 on Human Rights Court.

This Act does not set about the legal prosecution process (due

process of law), but is more focused on the search and revelation

truth, amnesty consideration, compensation, restitution and/or

rehabilitation to victims or families of victims who are his heirs,

so that it is expected to pave the way for the reconciliation process and

national unity.

Based on the facts found by Truth Commission and

Reconciliation (The truth and reconsiliation commission), a party that must

be responsible for the severe human rights violations

that occurred in the pre-enactment of the Act Number 26 of the Year

2000 about the Court of Human Rights must be identified. If the perpetrator

acknowledges the error, acknowledges the truth of the facts, expresses remorse

for his actions, and is willing to apologize to the victim or family

The victim who is his heir, then the perpetrator is a violation of the rights

A heavy human can apply for an amnesty to the President;

If the amnesty application is reasonable and sufficient to

granted, the President may receive such pleas, and to the victim

or the families of the victims who are his heirs, must be compensated,

restitution and/or rehabilitation. Where amnesty requests are rejected by the President

then compensation, restitution and/or rehabilitation is not provided by the State, and

such heavy human rights violations are actionable for

processed/resolved under the provisions of the 26-Year-Old Nombr Act

2000 on the Court of Human Rights.

58

If against a heavy human rights violation has been

checked and disconnected by the Truth and Reconciliation Commission, then the Court

Human Rights Adhoc (Human Rights Court Ad Hoc) no longer Authorized to

inspect, prosecute and discontinue the gross human rights violations

such, except if an amnesty application is denied by the President. Similarly, against the heavy human rights violations already being examined, tried and broken up by the Court of Human Rights Ad Hoc

(Trial of Human Rights Ad Hoc) then the Commission of Truth and Reconciliation. not

authorized to handle resolving the issue of human rights violations

the heavy human being. Thus, the ruling of the Truth Commission and

Reconciliation or the ruling of the Court of Human Rights Ad Hoc are final and

binding (final and binding).

The Truth and Reconciliation Commission (The truth and reconsiliation

commission), formed on the basis of self-reliance, free and non-

sides, health, justice, honesty, openness, peace, and the

the unity of the nation. Forward expected completion of human rights violations

heavy violations of human rights which includes crime

against humanity and genocide (crimes againt humanity, genocide) which

happens In the past can be settled out of court, in order to realize

peace (reconciliation) of a fellow nation in order to uphold

unity and national unity with a spirit of mutual understanding and mutually

II. LEGAL STANDING (LEGAL STANDING) PARA PEMOHON In accordance with the provisions of Article 51 Verse (1) Act Number 24 of the Year

2003 on the Constitutional Court, that the Applicant is a party

considers the rights and/or authority Its constitutionality was harmed by

the enactment of the law, namely:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in Undang-Undang;

c. the public or private legal entity; or

d. State agencies.

59

Later in its explanation is stated, that "right

constitutional" is the rights set in the Country Basic Law

Republic of Indonesia 1945;

More further based on the jurisprudence of the Constitutional Court of Indonesia, understanding and

limits on constitutional losses arising from the enactment of a

Act according to Article 51 Verse (1) Act Number 24 of the Year

2003 about the Constitutional Court, must meet 5 (five) terms namely:

a. The constitutional right of the Applicants is granted by the Law

Basic State of the Republic of Indonesia in 1945;

b. That the constitutional right of the applicant is considered by para

The applicant has been harmed by an Act that is tested;

c. That the constitutional loss of the intended applicant is specific

(specifically) and actual or at least a potential that according to

reasonable reasoning is certain to occur;

d. The existence of a causal link is between the loss and

the enactment of the Act is being asked to be tested;

e. It is possible that with the request of a request then

the constitutional loss postured will no longer be or no longer occurs.

According to the applicant in its request that by force

the provisions of Article 1 of the paragraph (9), Section 27, and Article 44 of the Law No. 27

Year 2004 on the Commission of Truth and Reconciliation, then the rights and/or

of its constitutional authority are harmed, and contrary to the provisions

Article 27 Verse (1), Section 28D Verse (1) and Article 28I Verse (2), Verse (4) and Verse

(5) The Basic Law of the State Republic of Indonesia in 1945;

Therefore, it is necessary to question the interests of the applicant whether it is appropriate

as a party to regard its rights and/or its constitutional authority

aggrieved by Law No. 27 of 2004 about the Commission

Truth and Reconciliation. Also whether the unconstitutional loss of the

The intended applicant is specific (specifically) and actual or

at least as potential as reasonable reasoning can

be confirmed, and whether or not there is a causal link due to (causal

verband) between the loss and the expiring Act

to be tested;

60

The government assumes that the applicant's activities

based as individuals and as private legal entities

that care for the submission, protection and enforcement of legal justice

and human rights in Indonesia are running as should not

interrupted and without subtracting any rights and obligations over

the enactment of Law No. 27 of 2004 on the Truth Commission

and Reconciliation, so there is no specific (special) relationship nor

relationship because of (causal verband) between the applicant with

the constitutionality of the Act a quo;

Then if the applicant feels his constitutional rights are harmed

by the enacBack of the Act No. 27 Year 2004 on the Commission

Truth and Reconciliation, then it needs to be questioned constitutional rights

Which applicants are harmed?, whether the Applicant as

the individual itself, the Swadaya Institute Society (NGOs) moving

in the field of human rights, the victims Human rights violations

the heavy or most public concerned about human rights,

because the applicant does not expressly explain who is actually

aggrieved over the enforcement of the a Quo;

Because it is the Government asking the applicant through the Speaker/Assembly of Judges

The Constitutional Court to prove legally in advance of whether

correct the applicant as a party of its rights and/or its constitutional authority

aggrieved. The Government assumes that it does not exist and/or has arised

loss to the right and/or constitutional authority of the upper applicant

enforcement of the Law No. 27 Year 2004 on the Truth Commission

and Reconciliation, because it is the legal (legal standing) applicator in

this testing does not meet the requirements as set forth

in Section 51 of the paragraph (1) of the Law No. 24 of 2003 on the Court

Constitution;

Based on the description above, the Government pleads for the Chairman/Assembly

The Constitutional Court judges wisely state the plea

The applicant is not acceptable (niet ontvankelijk verklaard). Nevertheless

if the Chairman/Assembly of the Constitutional Court argues otherwise, the following

delivered the Government's argument and explanation of the test material

61

Act Number 27 of 2004 On the Truth Commission and

Reconciliation;

III. Government Explanation Of The 2004 No. 27 Law Testing Request On Truth And Reconciliation Commission.

In connection with the presumption of the applicant in his request that

states that some of the provisions in the Law No. 27 Year

2004 on the Truth and Reconciliation Commission, that is:

1. Article 1 Paragraph (9) "Amnesty is a pardon given by the President

to the perpetrators of a heavy human rights violation with

pay attention to the House of Representatives ' consideration of the People's Representative Council";

2. Article 27 "Compensation and rehabilitation as referred to in Article

19 may be granted if amnesty requests are granted";

Article 19 "Subcommission of compensation, restitution, and rehabilitation as

in Section 16 of the letter b, in charge of providing legal consideration

compensation, restitution, and/or rehabilitation for the victim or

The families of the victims who are their heirs as a result of the breach.

heavy human rights "

Article 16 of the letter b "Subcommission of compensation, restitution, and rehabilitation and c

"subcommission of amnesty consideration ";

3. Article 44 "The heavy human rights violations that have been disclosed

and completed by the Commission, it cannot be submitted to

an ad hoc human rights court";

Contrary with Article 27 Verse (1), Article 28D paragraph (1) and Article 28I paragraph

(2), Verse (4) and paragraph (5) of the Basic Law of the Republic of Indonesia

In 1945, as follows:

Article 27 Verse (1) "All citizens simultaneously in the

laws and governance and shall uphold the law and governance

with no exception":

Section 28D Verse (1) "Everyone is entitled to a recognition, protection,

and a fair legal certainty as well as the same treatment before the law";

62

Section 28I:

paragraph (2) "Each person is entitled to be free of the discriminatory treatment of

any basis and entitled to obtain protection against the treatment

That discriminatory;

Verse (4) "Protection, submission, enforcement and fulfillment of human rights

is the responsibility of the State, especially the government ';

Verse (5)" To enforce and protect human rights in accordance with

the principles of a democratic state of law, then the exercise of human rights

is guaranteed, regulated, and poured in the laws ';

In connection with the presumption/reason of the applicant stating that

those provisions above may incur things as follows:

1. The applicant in his request assumed that the provision

contained in Article 27 of the Law No. 27 of 2004 on

The Truth and Reconciliation Commission, would provide injustice to

the victim of the rights violation. Heavy human rights, since the perpetrators who have been

make the victim suffer amnesty, otherwise if the perpetrator

does not get amnesty then the rights of the victims over recovery are

compensation, restitution and The rehabilitation cannot be obtained and the victim

must follow other efforts;

Thus, the provision has established an

unbalanced position between the victim and the perpetrator of human rights violations

which is heavy, because against the victim is given sufficient requirements

weight for get right to reparation (right to reparation) in terms of

compensation, restitution and rehabilitation which is the inherent right

on the victim depending on whether the culprit was found or not

and whether the culprit Granted amnesty or not. According to the

The applicant for recovery (right to reparation) is an obligation

the country.

Against the presumption/reason the applicant is above, the Government

may explain the things as follows:

a. That the creation of the Truth and Reconciliation Commission (The truth and

reconsiliation commission) is a collective statement that

dears "the values of the islah" of the Indonesian nation in order to

63

protection and affirmation of human rights, which in the past

(before the enactment of Law No. 26 Year 2000 on

the Court of Human Rights) the events of human rights violations

gross violations of human rights. often denisuated even

are considered to be absent, even without issue and investigated who

the perpetrator, who was the victim and how many of his victims.

b. That one of the very important essences in resolving

the heavy human rights violations that occurred in the past

is between the perpetrator and the victim to forgive each other (section 29 Invite-

invite Number 27 Year 2004) about the ° Commission of Truth and

Reonsiliation), in order to establish national reconciliation in order

establish unity and national unity as mandated by

the Decree of MPR-RI No. V/MPR/2000 on the Antapan of Unity and

National Unity).

Front is expected to be unrepeatable and happen again, as the Commission's saying

Truth and Reconciliation (The truth and reconsiliation commission)

Argentina who called it "Nunca Ma'as" (do not repeat it Again),

in South Africa using the term "to forgive but not to forget", or

with innuendo that tinged "Tu paux marcher sur I 'Afrique, main n' est

rnarche pas sur I' Africain" (you may walk On the African soil, but

never walk on the African side.)

c. That if the perpetrator admitted his guilt voluntarily, admitted

the truth of the facts, expressed remorse for his actions, and

willing to apologize to the victim or the victim's family that

was his heir, but the victim or victim's family that

is his heir is not willing to forgive, then the Commission

The Truth and Reconciliation will break the grant of recommendation

amnesty to the President independently and objectively, this is aims

for the completion of heavy human rights violations not to continue

protracted that in turn can inhibit the achievement of goals

national reconciliation;

d. That if the perpetrators of a heavy human rights violation would not

be willing and acknowledge his guilt, do not acknowledge the truth of the fact-

facts as well as not willing to regret his actions, then the perpetrator

64

Those heavy human rights violations lost the right to

obtaining amnesty from the President and the case of human rights violations

such heavy human beings may be submitted to the ad hoc human rights court

under the provisions of Article 43 Verse (1) Act No. 26 of the Year

2000 concerning the Court of Human Rights.

e. That the Government argues the provisions of Article 27 of the Act

No. 27 of 2004 on the Commission of Truth and Reconciliation that

set about awarding compensation, restitution and/or rehabilitation

to the victim or family victim who was his heir

as a result of severe human rights violations if

amnesty requests granted by the President, constitute a balance

the position between the perpetrator and the victim of the violation of the rights human being

weight, which in turn can create a sense of justice da! am

society (vide Article 28 and Article 29 of Law Number 27 Year

2004 on the Commission of Truth and Reconciliation;

f. That in the event of a rejection of amnesty application by the President, this

is not the end of the struggle for upholding justice for violations

severe human rights, which took place in the past, especially for

victims or His heir. Instead of the application of amnesty application

open space and opportunities for victims or heirs to sue

the right to obtain compensation, restitution and rehabilitation to

Country (vide Government Regulation) No. 3 Year 2002 on

Compensation, Restitution and Rehabilitation of Victims of the Rights Violation

Heavy Human Rights, as a follow-up to the provisions of Article 35

Act Number 26 of the Year 2000 of the Court of Rights Basic

Man;

For that, it can be said that amnesty is his right.

Good faith (good faith, geode trow), which sincerely acknowledges

his guilt and apologies for his mistakes in the past,

whereas compensation, restitution and/or rehabilitation were the right

The victim or heir to be given by the State;

From the description above, the Government argued that Article 27

Act No. 27 of 2004 on the Truth Commission and

Reconciliation, does not harm the right and/or constitutional authority

65

The applicant, and does not conflict with Article 27 Clause (1), Article

28D paragraph (1) and Article 28I paragraph (2), Verse (4) and Verse (5) Act

Basic State of the Republic of Indonesia in 1945;

2. According to the petitioners in his application, the provision of provisions

Article 44 of the Law No. 27 of 2004 on the Commission of Truth

and Reconciliation, it has closed the possibility. victims of the rights violations

human weight to get justice through the agency

justice.

The petitioners conclude that the Truth and Reconciliation Commission

has positioned it as the same institution as the institution

the judiciary, and the Truth and Reconciliation Commission can also

replace the court, whereas The Truth and Reconciliation Commission

is an extra judicial institution intended as a complement

(complementary) of the settlement through the court mechanism.

So according to the applicants it has been close access of any

people (victims of heavy human rights violations) for

getting a settlement through a fair judicial process and not

sides.

Thus the provisions of Article 44 of the Act No. 27 of the Year

2004 on the Truth and Reconciliation Commission, which is not

allowed for further examination in the Ad Human Rights Court

the gross violations of human rights

rights) which occurred before the enactment of Law Number 26

Year 2000 on the Court of Human Rights, therefore the Truth Commission and

Reconciliation are temporary and its existence is limited by

time, so at the time limitations available time has expired

then against fundamental rights violations The heavy human being that occurs

in the past can be made law enforcement by trial

human rights ad hoc;

d. That the establishment of Commission The Truth and Reconciliation were like

States has created a shift concept of justice (concept of

justice) in the settlement of the criminal case, which is from justice over

the basis of vengeance/revenge (retributive justice/prosecutorial

justice) to directions of justice in form of truth and reconciliation that

is and leads to restorative justice (restorative

justice/community based justice) emphasized the importance of aspects

healing (restorative) for those who suffer from evil;

e. That of late United Nations (UN) began

advocates for the concept of restorative concepts of justice more

broad in the criminal justice system through the United Nation Declaration on

67

the Basic Principles on the Use of Restorative Justice Programmes in

Criminal Matters, hat is in line with intent and purpose in the form

Act No. 27 of 2004 on the Commission of Truth and

Reconciliation, which emphasizes resolution of violations

Heavy human rights through the outside mechanism of the court

(out of court system);

From that description above, the Government argued that Article 44

Law Number 27 of the Year 2004 on the Commission of Truth and

Reconciliation, not detriment to the rights and/or constitutional authority

the applicant, and does not conflict with Article 28D Clause (1)

The Basic Law of the Republic of Indonesia of Indonesia in 1945.

3. The objection of the applicant in his application assumes the provision

Article 1 Clause (9) of the Law No. 27 of 2004 On the Commission

Truth and Reconciliation, contrary to international law,

due to the amnesty given to the perpetrators of human rights violations

the heavy human does not correspond to the principles recognized by

the civilized community in the world society, and Indonesia including

part of the community of the nation that That's civilized.

So according to the petitioners, even if the amnesty is

The President's authority, but based on the principle of international law not

may be given to the perpetrators of a heavy human rights violation,

for the perpetrators of heavy human rights violations can

be categorized as an enemy of all human beings (hostis humanists

generis), hence the State's obligation to perform

prosecution (obligations erga omnes);

Against the presumption/reason the petitioners are on the above, The government

may explain things as follows:

a. That amnesty is a pardon granted by the President

to the perpetrators of a heavy human rights violation with

paying attention to the consideration of the People's Representative Council (Article 14 Verse

(2) of the State Basic Law. Republic of Indonesia in 1945,

Article 1 of the Law No. 27 Tanun 2004 on the Commission

Truth and Reconciliation), it shows a prudenness of care

68

(prudential principle) a very deep da! am granting amnesty

to the perpetrators of the heavy human rights violations who have been

voluntarily admitting his guilt and apologizing for his mistakes.

in the past;

b. That disclosure of the facts for the occurrence of human rights violations

(gross violations of human rights) in fact

many are still experiencing significant constraints and obstacles to

can be accounted for tunically which in turn

imposes public discontent in particular the victim or expert

his successor, has also stirred up political tensions that could

hinder reconciliation in order embody the unity and unity

national;

c. That top of the above needs to be done steps that

is taken to reveal the truth, error recognition,

apology, peace, hukurn enforcement, amnesty, rehabilitation

nor any other alternative which is beneficial to uphold the union and

the unity of the nation by still paying attention to the sense of justice in

society;

d. That in the nature of the State (Government) remains obligated to

conduct prosecutions against pe! I am a crime of criminal conduct or

perpetrators of heavy human rights violations, if the perpetrator is not available

acknowledge The truth of the facts and admitting to the kesa, and not

is willing to apologize and regret his actions. Then the perpetrator

The heavy human rights violations that occurred in the past

were submitted to the court of rights basic human ad hoc;

From that description above, the Government argues that Article 1

paragraph (9) of the 2004 Nornor Act on the Commission

Truth and Reconciliation, does not prejudice the rights and/or

the constitutional authority of the petitioners, and not to the contrary

with Article 28D paragraph (1) and Article 28I ay.at (5) Act

Basic State Of The Republic Of Indonesia In 1945.

69

IV. Conclusion Based on that explanation and argumentation above, the Government

implores the honorable Chairman/Assembly of the Constitutional Court

The Republic of Indonesia who inspected and severed the testing application

Law No. 27 of 2004 on the Commission of Truth and

Reconciliation against the Constitution of the Republic of Indonesia

In 1945, it could provide a ruling as follows:

1. Stating that the applicant does not have a legal position

(legal standing);

2. Rejecting the testing of the applicant (void) entirely or

at least stated the request for the applicant to be testing

acceptable (niet ontvankelijk verklaard);

3. Accept the Government Description as a whole;

4. Stating:

-Section 1 Section (9);

-Article 27;

-Article 44

The Law No. 27 of 2004 on the Commission of Truth and

Reconciliation does not conflict with Article 27 Verse (1), Section 28D Clause

(1) and Article 28I Verse (2), Verse (4) and Verse (5) Basic Law

The State of the Republic of Indonesia Tabun 1945;

5. Section 1 Paragraph (9), Section 27, Article 27, and Article 44 Invite.-invite

No. 27 of 2004 on the Truth and Reconciliation Commission

has legal and legal powers binding across the Region

The Republic of the Republic Indonesia.

A draw that in addition to providing an oral description at the court,

the government provided an additional written statement dated to 16

August 2006, which was accepted in the Constitutional Court of the Constitutional Court on Day.

Wednesday on August 23, 2006, in which case it was described as

following:

Follow-up to the trial in the Constitutional Court of the plea

testing Act No. 27 of 2004 on the Truth Commission and

Reconciliation of the State Basic Law of Indonesia

70

In 1945, which was directed by Asmara Nababan, SH dkk, on 23 May 2006; 21 June 2006; July 04, 2006 and the date of 02

August 2006, and to supplement the government's description

delivered by the Minister of Law and Human Rights with respect

relayed the Government's written Additional as follows:

That gross violations of (human)

rights) which includes crimes against humanity and genocide (crimes

againt humanity, genocide) that occurred in the past (before it expires

Act No. 26 of 2000 on the Court of Rights

Man), until recently it has not been accounted for,

so that victim or family of victims who are his heirs still

have not obtained any certainty of legal settlement against the breach of the rights

such heavy human rights.

Other than that, the victim or his heir is also not yet get compensation,

restitution, and/or rehabilitation for the suffering they experienced. For that

the waiver of such responsibility may incur dissatisfaction,

cynicism, apatism, and distrust of the institution

the law because the state is considered granting the release from sentencing

to the perpetrators of a heavy human rights violation.

To browse and disclose human rights violations that

weighing, need to be done concrete steps by forming the Commission

Truth and Reconciliation as mandated by Article 47

Law Number 26 of the Year 2000 on the Court of Rights

Man, stating: Verse (1) "The violation of human rights

the weight that occurred before the enactment of this Act did not close

possible completion by the Truth Commission and

Reconciliation "paragraph (2)" The Truth and Reconciliation Commission as

referred to in Verse (1) is set up with the Act ".

That the creation of the Truth and Reconciliation Commission (The truth and

reconsiliation commission) is a foreground collective statement

kan "values islah" from the Indonesian nation, and the will "each other Pardon between the perpetrator and the victim" in the course of protection and enforcement of human rights, which in the past (before the enactment of the Act

No. 26 of the Year 2000 of the Court of Human Rights) events-

71

The event of a gross violations of human rights is often considered non-existing, even without

on the issue and being investigated who the perpetrator is, who is the victim and how much it is in the past.

The number of his victims.

Front is expected to have severe human rights violations not repeated

and again, as the Argentine Truth and Reconciliation Commission (The truth

and reconsiliation commission) said refer to it as "Nunca

Ma'as" (do n' t repeat it again), in South Africa using the term "to forgive

but not to forget", or with innuendo ittinged "Tu paux marcher sur

I 'Afrique, mais n' est marche pas sur I' Africain" (you may walk on the ground

Africa, but not once in a time. Walking on top of Africa.)

Act No. 27 of 2004 on the Truth Commission and

Reconciliation is substantially different to the provisions set out in

Act 26 of the Year 2000 on the Court of Human Rights.

Act this does not set about the due process of law (due process of law), but is focused on the search and disclosure of truth, consideration of amnesty, granting of conpensation, restitution and/or

rehabilitation to the victim or the victim ' s family who is his heir,

so it is expected to be paved the way for the reconciliation process and

national unity. Because it is the Truth and Reconciliation Commission does not function as a substitute (substitution) against human rights courts.

The creation of a Truth and Reconciliation Commission was like the State has

created a shift the concept of justice in

the resolution of the criminal case, which is from justice on the basis of vengeance

revenge (retributive justice/prosecutorial justice) in the direction of justice in the form

truth and reconciliation that is and leads to justice

restorative (restorative justice/community based justice) which emphasizes

the importance of the healing aspect (restorative) for those who suffer

because of the crime.

That lately the United Nations (UN) began advocating

The use of restorative concepts of justice through the United Nation Declaration on the Basic Principles on

the Use of Restorative Justice Programmes in Criminal Matters, it is in line

72

with intent and purpose in the form of Act Number 27 of the Year

2004 on the Commission of Truth and Reconciliation, which stressed

the settlement of the heavy human rights violations through

mechanism outside of court system.

Based on that description, the Government requests the Chairman/Assembly of Judges

The Constitutional Court wisely stated the applicants were rejected or at least not acceptable (niet onvankelijke verklaard). However, if the Speaker/Assembly of the Constitutional Court opts another, please the wise and

be fair (ex aequo et bono).

That Additional Government Interest is reaffirmation

against the Government ' s Office of goodwill both written and Iisan that has been

delivered by the Minister of Law and Human Rights on the trial

Court The constitution of May 23, 2006, except for an explanation/argumentation

that had not yet been delivered at the previous trial, the Government could

deliver the following:

1. Objection Applicants to the provisions of Article 1 number 9 Invite-

invite No. 27 of 2004 on the Truth and Reconciliation Commission,

which stated: " Amnesty is a pardon given by

President to the perpetrator Heavy human rights violations with

pay attention to the People's Representative Council " can

relayed things as follows:

a. That the President's authority to grant amnesty expressly

is set in Article 14 of the Constitution (2) of the Constitution of the Republic of the Republic

Indonesia of the Year of 1945, which states: "The president grants amnesty

and abssions with Consideration of the House of Representatives

People "

b. So that if the president decides to grant amnesty

to the perpetrators of gross human rights violations (gross

violations of human rights), then it must have been

carefully considered. with regard to the consideration

of the House of Representatives (DPR).

c. Further granting amnesty to perpetrators of human rights violations

(gross violations of human rights), also

73

consider and pay attention to the Commission's recommendations

Truth and Reconciliation, as provided in the provisions

Section 25 Verse (1) Act Number 27 of 2004 on Commission

The Truth and Reconciliation, In addition, the Truth Commission and

Reconciliation in giving recommendations of consideration

the law is obliged to consider suggestions delivered by

society (Article 25 Verse (2) Act Number 27 of the Year 2004

on the Commission of Truth and Reconciliation).

From the above description, the Government expressly states granting

amnesty to the perpetrators of gross human rights violations (gross

violations of human rights), has been in accordance with the provisions set forth

in the Basic Law of the Republic of Indonesia in 1945,

in addition to the principle of ingenuity and prudential (prudential principle) to be

serious concern with regard to input and consideration

Council People's Representative, Truth and Reconciliation Commission and

society In general.

Therefore the Government has argued that the provisions of Article 1 of the number 9

Act No. 27 of 2004 on the Commission of Truth and

Reconciliation, do not conflict with Article 28D Verse (1) and Article 28I

Paragraph (5) The Constitution of the Republic of Indonesia in 1945.

2. Objection Applicants to the provisions of Article 27 of the Act

No. 27 of 2004 on the Truth and Reconciliation Commission, which

states: " Compensation and rehabilitation as referred to in Article

19 can given if an amnesty application is granted ", can be delivered

back things as follows:

a. That the granting of compensation, restitution and/or rehabilitation to

the victim or family of the victim who was his heir as

due to the heavy human rights violations if the plea

amnesty was granted by The President, is the balance of the position between the perpetrator and the victim of a heavy human rights violation, which in turn can create a sense, justice

in society (vide Article 28 and Article 29 of the Number

27 Year 2004 on the Commission of Truth and Reconciliation).

74

b. That in the event of a rejection of amnesty requests by the President, this

is not the end of the struggle of upholding justice for, the offence

the heavy human rights that have occurred in the past, especially

for the victim or His heir. Instead, with the application of an amnesty request

open space and opportunities for the victim or heir to claim the right

to obtain compensation, restitution and rehabilitation to the State

(vide Government Regulation 3rd Year 2002 on Compensation,

Restitution and Rehabilitation for Victims of Human Rights Violation

weighing in, as a follow-up to the provisions of Article 35 of the Act

No. 26 of 2000 on the Court of Rights Human Rights.

The government argued that the Terms of Article 27 Act No. 27

of 2004 on the Commission of Truth and Reconciliation could not be made

the measure to construct that the provisions were contrary to

Article 27 Verse (1), Article 28D paragraph (1), and Article 28I paragraph (2) of the Act

Basic State of the Republic of Indonesia in 1945.

The provisions of Article 27 of the Law No. 27 of 2004 on the Commission

Truth and Reconciliation are precisely the consistency and consequences

under the provisions of Article 27 Verse (1) of the Constitution of the Republic of the Republic

Indonesia 1945. It can be proven that if amnesty to

perpetrators of gross violations of human rights (gross violations of

human rights) was rejected by the President, but compensation and rehabilitation remained

granted to the victim or his heir, then it may raise things:

a No similarity or balance of position in

and/or the legal presence between human rights violations

the weight and the victim, the must equally get treatment

and human rights protection.

b. If an amnesty for the perpetrators of a heavy human rights violation

is rejected by the President, but against the victim remains granted rehabilitation, it is

that has violated legal Iogika.

Because it is the Government of the opinion that the provisions of Section 27 Invite-invite No. 27 of 2004 on the Truth Commission and

Reconciliation, do not conflict with the provisions of Article 27 Verse (1),

Article 28D paragraph (1), and Article 28I Verse (2) Act The Constitution of the Republic of Indonesia in 1945.

75

3. Objections to the Applicant to the termination of Article 44 Act No. 27 of 2004 on the Truth and Reconciliation Commission,

is considered to have closed the possibility of victims of human rights violations

a heavy human or expert His claim to obtain justice through

the judicial institution, because the Truth and Reconciliation Commission is considered

has positioned it as the same institution as the institution

the judiciary, may even replace the courts, though. Commission

The Truth and Reconciliation are the extra judicial institutions that

is intended as a complementary (complementary) of the settlement

via the court mechanism.

Against it above, the Government can explain and

reaffirm the following:

a. That provision Article 44 of the Law No. 27 of 2004.

about the Truth and Reconciliation Commission, not at all

contrary to the legal principle for the seeker of justice

(justiciabelen) against the heavy human rights violations

that occurred before Act Number 26 of the Year

2000 on Human Rights Court (vide provisions of Section 43

Verse (1) which states " Heavy human rights violations

which occurred before created this Act, checked

and is snapped up by the Court of Human Rights ad hoc "

b. Further the provisions of Article 47 Verse (1) Act Number 26

Year 2000 of the Court of Human Rights, which 'stated

that: "Violating of human rights a heavy one that occurred before

the enactment of the Act does not close the possibility of its completion

by the Truth and Reconciliation Commission ':

c. Thus it can be concluded that against human rights violations

the heavy human being that occurred before the Law No. 26

Year 2000 on the Human Rights Court was enacted

can be taken through the Court of Human Rights ad hoc and the Commission

Truth and Reconciliation.

Thus, the existence of the Truth and Reconciliation Commission

its formation is not intended as a complement (complementary)

nor substitute (substitution) judicial agencies, but intended

76

as a selectable alternative agency by the victim of a heavy human rights violation or its heir to

the resolution of a heavy human rights violation that occurred

before Law No. 26 of 2000 on the Court

Human Rights.

Therefore, the Government argues the settlement of human rights violations

human rights violations (gross violations of human rights) through the Commission

Truth and Reconciliation are the victims ' own choices of violations

rights the heavy human being or its heir, the Government does not

interests to direct or lead the victim or expert

his heir to choose a settlement of human rights violations

weighing whether through the Court HAM Ad hoc or the Truth Commission and

Reconciliation.

Top of those things above, the Government argues Article 44 of the Invite-

invite No. 27 of 2004 on the Truth and Reconciliation Commission,

not in conflict with Article 28D Verse (1) and Article 28I Verse (4)

The Basic Law of the Republic of Indonesia in 1945.;

Thus the Government's Written Description, which is an integral part of the written and oral government of the Government

delivered earlier, in order to be expected to be a member of the Constitution of Indonesia. Chairman/Assembly Justice of the Constitutional Court

Republic of Indonesia can make materials considerations in checking and

severing the application of the aquo Act.

Draw, that in addition to providing an oral description inside

the trial on Tuesday 23 May 2006, the House has submitted

A written statement dated May 31, 2006 received in Kepaniteraan

Court on Wednesday June 07, 2006 which at its point

specifies the following:

Regarding the Subject of Inform In the The request, the applicant states, by doing so.

1 Verse (9), Article 27, and Article 44 of the Law No. 27 of 2004 on

The Truth and Reconciliation Commission, the petitioners consider the right

its constitution aggrieved on the grounds that Article 1 Verse (9) of the Act

77

Number 27 of 2004 on the Commission of Truth and Reconciliation contradictory

with Article 28D Clause (1) and Article 28I paragraph (5) of the Constitution of the State

Republic of Indonesia in 1945.

The existence of the words "heavy" in the formulation of Article 1 Verse (9): " Amnesty

is the Forgiveness granted by the President to the perpetrator of the breach

The heavy Human Rights Watch the Council ' s consideration

People's Representative ", this section is considered to be contrary to the principle of law and

therefore has no legal force.

Article 27 Act No. 27 of 2004 About the Commission

The Truth and Reconciliation are contrary to the Section 27 Paragraph (1), Section 28D

Verse (1), and Article 28I paragraph (2) of the Basic Law of the State Republic

Indonesia In 1945: due to the provisions in Article 27 of the Law No.

27 Year 2004 have warranted any warranties of the anti-discrimination, equality

in front of the Law and respect of human dignity that has been guaranteed by

The Basic Law of the Republic of Indonesia Year of 1945. By making

an unequal position between the victim and the perpetrator and has

discriminating against the recovery (compensation and rehabilitation) that

is attached to the victim and does not depend on the perpetrator.

Article 44 Law No. 27 of 2004 on the Commission

Truth and Reconciliation contradictory Article 28D Clause (1) and Article

28I Verse (4) of the Constitution of the Republic of Indonesia in 1945,

Due to the provisions of Article 44 Act Number 27 of 2004

positioning the Truth and Reconciliation Commission as an institution that

performs the judicial function so that it closes the opportunity for each person or

the victim to obtain a settlement through the judicial process.

Against such a request may be submitted the caption as Here's: 1. That the Establishment of the Law on the Truth Commission and

Reconciliation is based on consideration:

The heavy Human Rights Violaation that occurred in the prior to

enactment of Law Number 26 Year 2000 about the Court of Rights

The Human Rights that to date has not been accounted for in

the tuntas, so that the victim or victim ' s family who is his heir

78

still has not received any certainty regarding the background of the event

A heavy human rights violation of the victim. In addition to yet

obtaining compensation, restitution, and/or rehabilitation for the suffering

which they experienced, the waiver of this responsibility has incur

dissatisfaction, cynicism, apathy, and great distrust of the against

the legal institution because the state is deemed to provide exemption from

the punishment to the perpetrators. Thorough completion of

severe human rights violations that occurred in the prior to

enactment of Law No. 26 Year 2000 about the Court of Rights

Human human being very urgent for immediate done because of discontent

and political tensions should not be allowed to continue protracted without

the determination of its completion. With the passage of truth about

a severe breach of Human Rights that occurred in the prior

enactment of Law No. 26 of 2000 on the Court of Rights

Human Rights, through the Commission of Truth and Reconciliation is expected to be

embodied national reconciliation. This is also in accordance with Article 47 of the Invite-

Invite Number 26 of 2000 on the Court of Human Rights.

About the legal basis in the form of the Truth and Reconciliation Commission

as a path to the settlement of human rights violations heavy, in addition to things

being the authority of Law Number 26 of the Year 2000

about the Court of Human Rights.

2. That the purpose of the creation of the Truth and Reconciliation Commission is to

solve the heavy human rights violations occurring in

the past outside the court, in order to realize peace and unity

nation; and to realize reconciliation and national unity in the soul

understanding each other.

3. That Act No. 27 of 2004 on the Truth Commission and

Reconciliation, based on some of the asas, that is:

-Asas self-reliance, this principle is an asas used by the commission

in carrying out its duties are free of any influence of any party;

-Asas free and impartial, this principle contains the meaning that the commission

in carrying out the disclosure duties of the Human Rights violation

which is heavy based on the facts that exist, and not discriminatory;

79

-Asas honesty, this asas contains the meaning that the Commission in

carries out the weight of a heavy Human Rights breach

must have a high, straight-hearted integrity, not lying, or

does not commit cheating;

-Asas openness, this asas contains the meaning that authorizes

to the public to obtain the correct, honest, and

information about everything that is related. with

a heavy Human Rights violation by staying maintaining

privacy protection, group, and state secrets;

-Asas peace, this asas contains the meaning that in

resolving disputes as a result of Human Rights violations

The weight is performed based on The parties ' agreement to

is resolved peacefully, for example the victim forgives the perpetrator and the perpetrator

giving restitution to the victim;

4. That provision in Article 27 of the Law No. 27 of 2004

about the Truth and Reconciliation Commission that governs the granting of

compensation, restitution and/or rehabilitation to victims or families

victims who It is the right to claim that as a result of a violation of the Right

Human Human Rights, if amnesty requests are granted by

The President, is the balance of the position between the perpetrator and the victim

violation of the Human Rights heavy that in turn to create

a sense of fairness in society. Amnesty is the president's constitutional right

granted by the constitution (with regard to the Council's consideration

People's Representative) as provided in Article 14 of the paragraph (2) Invite-

Invite the Basic State of the Republic of Indonesia 1945. Accordingly,

victims of the alleged heavy Human Rights violation had been

received an amnesty entitled to obtain compensation and rehabilitation from

The State;

5. That the Truth and Reconciliation Commission is not intended solely to

punish or humiliate someone (pillorying) or demand, but

more on the effort to acquire the truth at last

It is beneficial to help the recovery of an inharmonious relationship between

perpetrators, victims and the public. All three are essentially

victims of the crime;

80

Justice in the Truth and Reconciliation Commission synonyms with

complete disclosure (complete disclosure) of all events

by confronting and truely reconciling the perpetrator and victim

by avoiding complicated event laws. The Truth Commission process and

Reconciliation aims to prevent the recurrences of similar events in the future

coming through the reconciliation process and not solely leads to

the foundation on the basis of humanity and the awareness of the sense of mutual

dependency in society (community interdependence);

The protection and restoration of the rights of victims and the wider public is seen

equally important to the disservice and/or rehabilitation of the perpetrator of the crime.

Thus, it is integrally viewed with each other needs one

another. The victim and the perpetrator were placed in a similar position to the importance of

in one social building.

6. That Article 44 of the Law No. 27 of 2004 on the Commission

The Truth and Reconciliation, which set about a human rights release that

the weight has been disclosed and completed by the commission, it cannot be

filed again to an ad-hoc human rights court, not to conflict with

Article 28D Clause (1) and Article 28I Clause (4) of the State Basic Law

Republic of Indonesia 1945 due to the Truth and Reconciliation Commission

not to function subtitution (replacing) against the Court of Rights

Man in accordance with the provisions Act Number 26 Year 2000

about the Court of Human Rights. In this case the Commission Act

The Truth and Reconsization did not regulate the proceedings of the law but

only set about:

-the process of disclosure of truth;

-the process of granting compensation. restitution, and/or rehabilitation to

victims; and

-the process of consideration of amnesty to the perpetrator;

So in order to provide legal certainty, violation of the Rights

The mortal man has been revealed and was completed by the commission could not

be submitted again to the Human Rights Court.

7. That against the perpetrator of the human rights abuses that

is willing to acknowledge the truth and his mistakes and not be willing.

81

regrettable his actions, then the concerned loss

gets amnesty and can be submitted to the ad-hoc human rights trial.

As set out in Section 29 Verse (3) Act No. 27

2004. Thus, from the formulation of Article 29 Verse (3) it can be interpreted

that the Truth and Reconciliation Commission Act does not close

access each person to a settlement through the judicial process;

8. That Article 1 paragraph (9) of the Law No. 27 of 2004 on the Commission

The Truth and Reconciliation, which states that amnesty is

a pardon given by the President to the perpetrator of the rights violation

Human Rights heavy with regard to the Council's consideration

People's Representative. It can be explained that universally understanding

amnesty in the Truth and Reconciliation Commission has a special meaning

and more measurable. Amnesty in the Commission of Truth and Reconciliation only

is granted for those who truly recognize it fully

his involvement in heavy human rights violations is solely motivated by

political aspects (associated with political objectives) that are proportionate.

Another Motif, such as personal gain, individual hatred, heartache, envy

that is personal, cannot be made the basis of amnesty. Next

an amnesty applicant must be willing to be publicly heard to answer

the question of the Truth and Reconciliation Commission, the victim's legal counsel

and/or the victim himself;

Draw that on the trial on the day Wednesday, June 21, 2006,

has heard witnesses and experts under oath filed by

The applicant, who is at the bottom as follows:

Witnesses the Marullah

-The witness is as the victim of the case the 1984 Priok cape;

-That at the time of the case of the 1984 Cape Priok case, Witnesses are still

15-year-old following a religious lecture delivered by Ustad Amir

Biki, and the public demands that Ustad and the presentation caretaker

4 people held in Kodim to be released;

- That all of the pilgrims kept urgent to Ustad Amir Biki, who

that tens of thousands of people marched on to Kodim and demanded 4

82

The detained person was released, but arriving in front of Kodin para

Jemaah has been blocked by a soldier's army;

-That at the time was shot and there were wounded and there

anyway, I briefly took up the bodies collected

near Mosolla;

-That the witness was one of the victims of the torture in the case of Tanjung Priok;

-That the witness was arrested in Guntur, the Cimanggis LP, and moved to Rutan Salemba

and was arraested in the Children ' s trial and sentenced to 20 Months cut

during custody, in the remainder of her sentence was served in Cipinang LP for 17

Months;

-That witnesses were among the witnesses who showed the places

The murder victim was buried among others It was held at Pondok Rangon, in

Mengkok, and held by Tipar Cakung;

-That the witness was one of the 13 victims to receive

Compensation of Rp 21,000,000,-(twenty-one million rupiah);

Expert Petitioner Dr. Tamrin Amal Tomagola (UI Sociology expert);

-That the removal of fundamental rights

-That human independence rights are duties and obligations of the state

to protect all its citizens.

-That peace between all parties in the order of the nation and this country exist

one value defended by the unity of Indonesia, the compaceness of the elements

component of the nation and country, then with this do not until there is any kind

set the way that it would later be conducted inside KKR, which is precisely

leaving the wound that remains gaping not treat, and make a group-

group or component of the nation it remains a distance and is not mutually

believe;

-That Muslims or Islamist groups are the most suffering groups,

which is marginalized by New Order, and in Indonesia there are only two powers

strong politics, namely the military power and the power of Islam;

-That stuctural violence at times of access to violent tools

is already monopolised by the state and State tool, whereas other parties especially

83

Islamic groups are at all neutraed to have such access.

-Actually that should be the focus and point of concern of the entire process

KKR This is the victim, the victim was point of concern and the rights of the victims,

including the right to forgive and pardon (primarily not), and not

all, the legal part of the state could forgive, primary and first

is the victim's right to the committed a pardon that in regards to the President

called Amnesty;

-So rightfully The pardon was the victim's hand, and that's what

was attempted with the KKR's full mechanism in order to happen because if

we could finish the group, why should we bring it and

be done in the Court;

Applicants Dr. Asvi Warman Adam, APU., (Historian/History Expert)

-Expert will return to the time before 1965 when at that time the force

the politics were sourced or were in 3 (three) hands i.e. President Sukarno,

Army and PKI, but at the level ranked bottom of the Society already

conflicts, conflicts occurred between PKI people, BPI and Ormass

with the Islamic conflict-the conflict was caused by what is called

unilateral action;

-September 30 or date On October 1, 1965, a balance between Sukarno, Army, and PKI, Sukarno was in a gradual and gradual way

then was eliminated and the PKI was the mastermind of the event. Year

1965-1966 mass killings occurred in the areas of Central Java, Java

East, and Bali;

-RPKAD forces then trained local youth, the first

youth of Islam and then came to be a result of the first time. Arrest arrest

accompanied by mass murder;

-The second one for the case in Indonesia is very different from the case in Africa

South, there are so many perpetrators willing to give

testimony/confession, because they will be granted amnesty. The law is more upright

than here, and they are afraid because if it does not testify or

their recognition is afraid of being dragged into the Court Table and according to them more

well so to save them, will but in Indonesia that was tried

in the Ad hoc human rights trial was released;

84

-The third that the new victim was compensated for, after an amnesty

may have occurred congrub also because the victim expects compensation

and could compromise with the perpetrator, who would tell her testimony

light-light only;

-That the recognition given by the victims is very limited and

adverse effects from KKR results, as this KKR is a revelation

the truth of the times The past is closed, which is during this

Indonesian history of history, Cover and embezzled.

-That the section that hangs the fate of the victim to the amnesty of the perpetrator

is very unfair and also impossible to do, let go of the rights

The victim to get the copensation was attached On the victim, do not be associated

with the perpetrator;

-In the New Order period, it was done to discriminate against Bung Karno and

flashed Suharto aside as well to destroy an

society group, which are considered PKI or PNI and others-lain;

-Make history back as free tool, one of them is

KKR, which gives the victims the chance to tell anyway

which they experienced, this is part also psychologically healing treatment

recounts her suffering first;

Draw that in Tuesday's trial, July 4, 2006, has

heard caption 1 (one) witnesses and 3 (three) experts under oath

filed by the applicant, who at the following is the following:

Witness Mugiyanto

-Witnesses are SMID activists, survivors. kidnapping/removal of activists

Year 1998

-Witnesses kidnapped on March 13, 1998 at a witness counter at Klender

at 7pm by officers carried by vehicle and stopped

at the Koramil duren Post Palm, after being intractiated then brought again to Kodim

Jakarta Timuer.

-Witnesses at that time as student activist, Student Solidarity

Indonesia for Democracy (SMIK), which is fighting for the autonomy of the anti-campus.

resisting military intervention on campus, demontration demands a drop in prices and

85

also national issues. Now the witness is in the organization of the Family Association

People Missing Indonesia (IKOHI).

-The witness on the move to Kodam Jaya and there was also interrogated and tortured

for 2 days 2 nights, then transferred again to the Polda Metro Jaya there

checked and charged in violation of the anti-subversion sections and detained during 3

months from 15 March to 6 June 1998. Witnesses were released because there

a change of Government from Suharto's Government to the Government

President Habibie and he revoked the anti-subversion Act.

-The witness was one of 9 survivors a temporary survivor friends

members of the organization recorded the 1997-1998 activist kidnapping event

there were 13 people still missing and 1 more who were once declared missing

and a few days later it was found dead.

-According to witnesses the Court team rose very not to touch the para

the perpetrator, who was already by the Government and it is very far from what

is expected by the victim, the victim ' s family and by the witness itself.

-The witness is very concerned because to date we are good citizens,

will but the community It still has the assumption that we are people

Communists, against the government and also being labeled as fundamentalists, and

The impacts we feel are the presence of discrimination, poverty,

This is the state policy. Which is not fair.

Applicant Rudi Muhammad Rizky, S.H., LL.M. (Professor of International Law, Human Rights Law, FH International Humaniter Law. Univ Pajajaran Bandung, Judge Ad hoc Human Rights Tribunal, UN Independent Expert, Field of Human Rights and Solidarity)

-The Truth and Reconciliation Commission was established, if formally it was already

meeting the requirements as KKR, as listed 8 requirements

according to Dougatt Principle, the minimum requirement for 1 KKR. The first is

established by a democratically elected legislative body or executive,

then the commission must have broad authority, it is also broad.

-The Commission must be authorized to recommend Reparations for victims

severe human rights violations, then amnesty hopes the perpetrator should be denied

for the perpetrator who refused to team up with the commission or refuse to

open up full of the crimes they have ever had Do it.

86

-The penalty for the perpetrator is actually obligations of the menkind as a

whole, the duty to the human race as a whole. Whereas victim

compensation it is for the benefit of the victim or his heir. This is

ILC draft article may be a lot of questionable power memiking, but we

confident that this is from an international legal corner and binding, because

meets as an expert opinion.

-From The backdrop of Act Number 27 was one of which was to

reveal the truth in the interest of the victim and his heir to

get compensated, restitution and rehabilitation. So the victim's interest here

is sufficient to come up and pertain to an effective remedi liability.

-Article 27 of this Act No. 27 is "Compensation and Rehabilitation"

may be granted if an amnesty request Granted, this would be

affirm the rights of the victim, because the amnesty should be given. The amnesty must be

given if the perpetrator acknowledges the error, correctness of the facts, stating

remorse for his actions and willing to apologise to the victim and the expert

his successor.

Applicant Prof. Dauglas Cassel. (Professor of International Criminal Law & International War Law at Lillian McDermott, Notredam Law School, United States) -The Act on the Truth Commission and Reconciliation 2004 have

failed to fulfill the task Indonesia as a State and fails to

respect the rights of the victims, families and also the Indonesian society

based on the International Human Rights Law. There are 3 (three) ways:

1. Has failed to investigate and express the truth about

Any case in connection with genocide and crime

against humanity prior to 2000.

2. For failing to provide reparations to the victims and the Family

her.

3. It has failed to prosecute and is enviable to punish the perpetrators

her.

-Since Indonesia is a member of the United Nations and also Indonesia part of the

UN charter as it is a treaty or a binding agreement

countries. Under Article 55 and 56 of the UN charter all countries

87

is responsible for human rights, based on international legal agreements,

a treaty must be translated as an act to be performed

by the state, as a continuation act that must be performed by the state.

-World Court or the world court since 1927, where it requires

reparations for any international rights violation, the state has

the obligation to conduct a tunnated investigation and effective, giving

an effective recovery to the victim, demanding and punishing the perpetrator, as well as

the victim and also his family have the right to truth or know

about the truth, as well as having the right to justice in the form of prosecution

and also the punishment of the perpetrator;

- Legal sources of this obligation, among others divided in 3 (three) things

included in Article 2.1 of the Covenant about the investigation:

1. The investigation must be tunnated;

2. The investigation should be effective, and

3. All offenders must be identified;

-It is important to suggest the scope of an effective recovery

it must be included in it not only the access of justice. but must

include 5 (five) elements:

1. Restitution, that is the restitution of the property rights or also the good name of the Victim;

2. Compensation, in the form of money for the cherurets; 3. Rehabilitation, including medical services or also psychological services; 4. Tida-action to satisfy, including it is

The recognition by the public that it is indeed a responsibility

the country and also the general apology done by

officials in the post that High enough;

5. Warranty, that this will not be repeated any more or non repetition;-The common violation in this Act is the issue

the prosecution and also the sentencing. International law in general

actually supports amnesty, but there are restrictions for awarding

amnesty under international law, and such restrictions apply

specifically for genasides and crimes against Inhumanity, where

in fact this is the subject of the Truth Commission Act.

88

Several different sources provide a different ban-

different or different restrictions on amnesty;

The applicant Prof. Paul Van Zyl. (Professor of International Law, Transitional Court, International Law on Univ, New York and Univ. Colombia USA, Former Executive Secretary of the Truth and Reconciliation Commission in South Africa)

-That form of the Indonesian Truth Commission yan there is currently a failure to

meet the standards made by the UN, that based on the

international standart it is made to achieve truth and justice;

-The only one applying for declared the truth and then

filed amnesty it was the police of Africa South. Because of one

a successful trial and then punishing the Police. And if the Military

Indonesia is not afraid for the prosecution of the heavy human rights crimes committed,

then it is small to then believe that they will

want to submit and declare the truth then then submitted for

obtaining amnesty. Then this KKR would not be successful to acquire

the truth, and would be a great source of embarrassment for the government both

domestically and internationally;

-That the convention on civil and political rights is already was adopted into

domestic law, so is the convention against anti-torture in

Act No. 39 of 1999 on human rights. Article 7 of the Act

states that the Provision is set in international law on human rights

which is already ratified by the Republic of Indonesia. It will then be considered applicable or

legally binding in Indonesia that what is listed in the Invite-

Invite the Truth Commission there are some of its provisions that constitute a violation of

against the International Law, as set in an International Convention

civil rights and political rights and also an anti-torture international convention. Provisions

this is Article 1 Verse (9), Article 22, Article 23 and Article 44, which is based on

the article is allowed that the Commission recommended to

the President that the perpetrators of the heavy human rights violations could be obtained. amnesty;

-Amnesty set in the KKR Act also violates Article 6 of

ICCPR, in article 6 it is said that "Every human has a right that

is inherited for life". This right must be protected by law or the Act

and no one can arbitrarily dispel his rights, and

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where in this case jurisprudence also says that the right to life

including in it is a state obligation to investigate

murder to bring into justice anyone who is

responsible for the death or murder of it;

-In Section 2 Verse (3) of the ICCPR where it is said that any

the party states "points" do " dots " to guarantee that all persons

their right or freedom known here is violated must obtain

an effective recovery, that it is a state obligation to

provide reparations to the victims. Article 27 of the KKR Act also

constitutes a violation of the anti-torture convention, where Article 14

Verse (1) is said to be that the state must guarantee the victims of torture

obtain a recovery and have the rights can be applied to

sufficient and fair compensation including acts as rehabilitation

full;

-That human right commission is now at repleced or replaced by Human Right

Council. And that the Indonesian Government is holding a role that

matters Inside the council. Principle 24 and principle 19 for this issue

relevant, where it says amnesty and other forms of action should be limited

to be able to keep with certain bonds;

-About basic principles and also guidelines for the right to be restored,

where it was enacted by the UN General Assembly on December 16, 2005,

in Article 12 it is said that victims of the legal weight violations

international human rights must obtain balanced access. for recovery

effective judicial, based on international law. Where the Act

The existing Truth Commission has now failed and is not compatible with the trend

International, where now the International Trend is to acquire "

truth and injustice ";

Draw that in Wednesday ' s trial, August 2, 2006,

has been heard captions from KOMNAS HAM, Former PANSUS chairman bill

KKR Drs. Sidarto Danusubroto, S.H. (in addition to the oral description also

delivering the written caption dated 02 August 2006, which was accepted in

the Wednesday of August 02, 2006, the hours of 15.00 WIB) and 1 (one)

the expert from abroad at the time of the year. the bottom of the oath submitted by the applicant, which at

pocigarettes as follows:

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Expert Pemapplicant Abdul Hakim Garuda Nusantara, S.H., LL.M. (as Chairman of KOMNAS HAM) 1. That Act Number 39 of 1999 mentions that

the court of human rights, but the issue of the Court of Human Rights is further set in

in Law No. 26 of 2000.

2. That human rights violations in the past can be

completed through two avenues laws, to achieve justice. Avenue

first, through the Ad hoc Human Rights Court, its formation on the proposal of the House

to the President, then the President issued the Principal of the House. Avenue second,

through the Truth and Reconciliation Commission.

3. If it is true that is a uncontestable, then the conpensation and

the rehabilitation cannot be attributed to either granted or it is not granted

amnesty by the President. What is the cause of the Truth and Reconciliation Commission

verifying the truth of an event, a heavy human rights violation that occurred?

Who was the culprit and who was the victim?

4. So amnesty ca n' t be a condition for a compensation payment

and rehabilitation. Because of the amnesty it is a process of its own and is

conditional. Article 29 Verse (2) mentions; " In terms of the perpetrator acknowledge

the error, acknowledging the truth of the facts, expressed regret over

his actions and were willing to apologise to the victim or the victim's family

who was the expert His claim is not willing to forgive, hence the commission

severing the grant of amnesty is independent and objectively ". So

independent and objective cannot be associated with compensation and rehabilitation,

for compensation and rehabilitation it became the responsibility of the State and

related to the facts found by the Commission. Truth.

5. With regard to Section 44 according to the applicant, contrary to Article

27, Section 28D, and Article 28I states; " In this case the breach

the heavy human rights that have been disclosed and resolved, the event cannot be

submitted to the ad hoc human rights court ". Article 44 it is as a result of

logical and dianation of the conception formulated in section 29 Verse (2) and

(3). The amnesty may only be granted by the President, and recommended

by KKR to the President if the condition is met.

6. If the KKR was in the process through the Ad hoc Court of Human Rights, then the Court proceedings

Ad hoc human rights would be held if the amnesty request was rejected. Related

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with Section 7 Verse (1) the letter i states; " In carrying out the task

as referred to in section 6, KKR has the authority to refuse

plea of compensation, restitution, rehabilitation, or amnesty if the case

already registered to the Court of Human Rights ". So denial of a plea

compensation, restitution, rehabilitation or amnesty is attributed to a

case, already registered or not to the Court of Human Rights.

7. If the case of severe human rights violations is not likely to be resolved through KKR,

then it can be through the Ad hoc Human Rights Court. But if in a case

a certain problem of severe human rights violations, it is more precisely resolved

via KKR.

Expert Applicant Sidarto Danusubroto (Former PANSUS Chairman Bill KKR) 1. That the process in the form of an Act is expected to improve

the flaws contained in the previous Act.

The expert wanted to say that better the Act was born with little

defect of Not at all. Due to the formation of the Act

is not an easy and simple thing.

2. With the existence of the KKR Act, regarding the Truth telling that

the disclosure of truth in the new age is a thing that

is very rare to talk about, currently being accommodated in law.

First The truth is that the truth is told by law even though it's not now

accommodated again by law. The South African delegation once asked

"Why Truth telling is already unaccommodated again by law?" Expert

says because it does n' t suit our cultural culture. Clearly the law

already put it out, but it does not conform to Indonesian culture.

3. With regard to Article 27 that may be preliminary under Article 19.

Regarding Article 27 in regard to Article 19, the section for test rights

material compensation and rehabilitation may be granted if the plea

amnesty Granted by the President. When PANSUS discussed Article 27,

a dozen victims of heavy human rights violations expressed reservations about the article

.

4. The rejection of Article 27 delivered by victims of the breach

Heavy human rights and the Legal Aid Society championed the victims ' rights

is very understandable. But the political constellation at that time made a fraction-

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The fraction in the House accepts Article 27 as it is today.

The acceptance of Article 27 of the House of Representatives is the result of deliberations

The fractions contained within the House, so the discussion of the Invite-

Invite KKR not to protracted and deadlock. If this is happening

then it is certain that the discussion process regarding Article 27 will

is subject to delay and most likely will be continued by the Member

DPR The next time was the service of 2004-2009. And surely it must be more

understanding the substance and philosophy of the KKR Act.

5. Heavy human rights violations are extra ordinary crime so that

The solution cannot use legal provisions already

there, such as the Penal Code and so on, must go through a special path. For that

with the mandate of Article 104 Verse 39 which governs the Human Rights

it has been set up an Act No. 26 of 2000. The Act

is expected to protect human rights both individual and

society and be the basis for enforcing law, justice, sense

safe, both individuals and the public against grave human rights violations.

6. Tap MPR Number V also mentions the need to be formed KKR (transitional

justice). The KKR is located at Avenue Trial of Ad Hoc, and

Avenue KKR Court. This is called Complementary law, the move that

is a disclosure of truth, truth telling, recognition

error, apology, peace, law enforcement, amnesty,

rehab, and other alternatife It is beneficial to uphold the union

and the unity of the nation with regard to the sense of justice in

society.

7. Regarding Article 1 Verse (9), amnesty is the right of forgiveness granted

by the President to the perpetrators of heavy human rights violations with regard to

the House consideration. Article 1 is a general provision, so

set in this section, there is a normative thing. Also,

what is set out in this Section 1 Verse (9) is in accordance with the provisions

Article 14 Clause (2) of the Basic Law of 1945 stated; " that

The President grants amnesty and abssions by stating that Article 1

Verse (9) contrary to the Basic Law of 1945 ".

A long enough debate over 16 months

shows that the process for giving birth to the expected Act may be

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used to bury a dark past is not a job that

is easy and simple. 0leh for that, on various occasions, I

as Chairman Pansus always said that better the Act

Thiswas born somewhat "flawed" than at all.

nevertheless, some important things to note from the results that

already achieved by Pansus are:

1. The House of Representatives has attempted to run the tasks mandated by the people

as per the TAP MPR number V/MPR/2000 is best,

although it is highly aware that the results are not maximal so that

may provide The satisfaction of all interested parties.

It needs to be understood that every decision is important, especially if it

concerns the lives of millions of people about something that is very sensitive,

It must have been. embed the debate and differences in attitude in

respond and understand it. Nevertheless, in the opinion

some circles, such as the Law Concern Society, the final result of

the job of the DPR RI (Pansus bill KKR) is still better when compared to

with the initial draft delivered by the government, which can be viewed from

some of the significant changes that have been made, among them are:

a. The disclosure of the truth that was especially in the Order

New was something very "allergic" to talk about,

with the existence of the Law on KKR being accommodated in

the law, through the formation of sub-commissions as set out in Section

16 i.e.: a. The subcommission of inquiry and clarification of human rights violations

the heavy human being; b. subcommission compensation, restitution, and rehabilitation;

and c. subcommission an amnesty consideration.

b. The original number of members of the commission was proposed to be 15 persons

agreed to be 21 of the 3 leads

an, 9 members of the sub commission inquiry and clarification; 5 people

subcommission members compensation, restitution and rehabilitation, and 4 persons

members of the subcommission of amnesty consideration.

c. The selection committee in the draft determined 5 persons with a composition of 3

government elements and 2 elements of society, changed to 2 from

government and 3 of the elements of society.

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d. The commission's work period of the proposed 3 years and can be

extended for 2 years, is finally converted to 5 years

and can be extended 2 years.

It is to be understood that there are 2 (two) important issues that invite

a lengthy debate in the discussion of the KKR bill, namely concerning

disclosure of truth and Article 27. Many have felt

"objections" to the provisions of the disclosure of the truth

in the Act, as such would open up opportunities for the opening

the various questions of the nation that have been trying to "forgotten".

Whereas in relation to Article 27, objections are derived from the victim's side and

the victim's family, because this Article 27 may be interpreted to be clear

the existence of Article 19.

RESPONSE TO THE ARTICLE IT FILED A MATERIAL TEST RIGHT OF 1. Article 27: Compensation and rehabilitation as referred to in Article 19