Test The Material Constitutional Court Number 6 Of 2006

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 6 Tahun 2006

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CHECKS the INTEGRITY of the OFFICIALS of the KPK---------------------is considered very important to develop and maintain public services that are free of corruption and the practice of accepted dibanyak the State VERDICT Number 006/PUU-IV/2006 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA to check, try and break the Constitution matter at the level of the first and last, has dropped the verdict in the case of application for Testing the laws of the Republic of Indonesia Number 27 in 2004 about the truth and Reconciliation Commission against the Constitution of the Republic of Indonesia in 1945 , submitted by: 1. The institutions of study and Community Advocacy (ELSAM) located on the street. Standby II Number 31, Pejaten Barat, South Jakarta, Tel (021) 7972662, 398 99777 in this case represented by Romance Dann, S.H., born in Siborong-entire stock, 2 September 1946, Christian, WNI, Chairman of the Board of the Institute of community studies and Advocacy (ELSAM); Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT I; 2. The Commission for missing persons and victims of violence (Kontras) located on the street. Borobudur number 14, Central Jakarta, in this case represented by Ibrahim Zakir, born May 31, 1951, Islam, WNI, Chairman of the Board of the Assembly's Commission for missing persons and victims of violence (Kontras); Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT II; 3. Solidarity Nusa Bangsa (SNB), located at Depok Housing Mulya III AF 3 Blocks new land, Depok, West Java, Tel (021) 775 0677 in this case represented by Esther Indahyani Yusuf, S.H., born in Malang, 16 January 1971, Christian, WNI, Chairman of the Board of workers Solidarity Nusa Bangsa (SNB); Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-– the APPLICANT III; 4. Participatory community initiatives for Equitable Transition (Imparsial), located on the road. Diponegoro No. 9, Jakarta Pusat, Tel (021) 319 00627 in this case represented by Rachland Nashidik, born in Tasikmalaya, 27 February 1966, Islam, WNI, Executive Director; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-the PETITIONER IV;

2 5. Research Institute Victims 65 Event (LPKP 65), located on the road. Kramat V No. I C, Central Jakarta, in this case represented by Soenarno Tomo Hardjono, born in Solo, November 24, 1934, Islam, Research Institution, Chairman of the INDONESIAN victims of the events of 65 (65 LPKP) hereinafter referred to as-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT V; 6. The institution of the rehabilitation Regime Victims Struggle ORBA (LPR-KROB) located on the street. Children's Singotoro the number 13, a new Temple, Semarang, Central Java, in this case represented by Sumaun Utomo, born 18 August 1923, Christian, WNI, Chairman of the Institute; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT VI; 7. Raharja Waluya Jati, Jepara, born December 24, 1969, Islam, WNI, self-employed, work in the street. Mede II No. 11 North Utan Kayu, East Jakarta Matraman, Tel (021) 813 8274; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT VII; 8. H. Tjasman Rajendra Prawiro, born in Semarang, 3 March 1924, Islam, WNI, self-employed, work in the street. Pondok Gede Raya No. 19, Rt. 015.011/Rw, Kelurahan Kramat Jati, Jakarta's Kramat Jati, East, Tel (021) 9147026; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-– the APPLICANT VIII; • Applicant Numbers I up to VI is an applicant which is a body of private law; • Permohon Number VII to VIII is an Individual Applicant with (individuals); On the basis of a special power of Attorney, dated August 29, 2005 gives the authority to: 1. A.H. Semendawai, S.H., LL. M; 2. Asfinawati, s. h.; 3. Betty Yolanda, s. h.; 4. Chrisbiantoro, s. h.; 5. Edwin Partogi, s. h.; 6. Erna Ratnaningsih, s. h.; 7. Fajrimei. A. Gofar, S. H.; 8. Billy, s. h.;

3 9. Haris Azhar, S. H.; 10. Hermawanto, s. h.; 11. Ignatius Heri Hendro Harjuno, s. h.; 12. The senses Fernida, s. h.; 13. Indriaswati d. Saptaningrum, S.H., LL. M; 2. Ines Thioren Situmorang, s. h.; 15. Indarti Poengki, S.H., LL. M; 16. Sondang Simanjuntak, S.H., LL. M; 17. Sri Suparyati, s. h.; 18. Lenroy Widodo Eddyono, s. h.; 19. Taufik Basari, S.H., s. Hum., LL. M; Uli Parulian Sihombing. 20, s. h.; 21. The Apocalypse of Wagiman, s. h.; 22. Joseph Suramto, s. h.; 23. Zainal Abidin, s. h.; All of which is to advocate and public defenders from the legal aid Institute (LBH) Jakarta, the Institute studies and Community Advocacy (ELSAM), the Commission for missing persons and victims of Violence (KONTRAS), Solidarity Nusa Bangsa (SNB), and a bevy of Participatory community initiatives for Equitable Transition (IMPARSIAL) Legal Indonesia Devotion, Foundation (YAPHI) who joined in justice and righteousness Advocacy Team choose domicile law at the Office of the legal aid Institute (LBH) Jakarta , The road. Diponegoro No. 74, Central Jakarta, acting either singly or together; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-The Applicant; Have read the statement of the applicant; Have heard a description of the applicant; Have heard and read the affidavits of Government; Have heard and read the affidavits of representatives of the Republic of Indonesia; Have heard and read the affidavits of experts within the country and from overseas as well as expert witnesses proposed by the Applicant; Have heard a description of the national human rights Commission;


4 has heard and read the description of the former Chairman of the Special Committee a bill of the TRC; Have read the applicant's conclusions. Have read the conclusions of the national human rights Commission; Have reviewed the evidence; SITTING MATTER considering that the applicant had applied for Testing Act No. 27 of 2004 (hereinafter the TRC ACT) against the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution) are received at the Registrar of the Court of Constitution of the Republic Indonesia (hereinafter referred to as the clerk of the Court) on Tuesday March 28, 2006, and was registered on Wednesday March 29, 2006 with the number 006/PUU-IV/2006 , which had been repaired and was accepted in the Court Clerk on Tuesday April 25, 2006, outlining the things as follows: i. INTRODUCTION That the Basic Law (CONSTITUTION) 1945 give guarantees to citizens of Indonesia over respect, fulfillment, and protection of human rights (human rights) evidenced by dicantumkannya rules concerning the human rights of the second amendment to the CONSTITUTION in 1945. Thus, the whole people of Indonesia especially the victims of human rights violations has the implementation of the guarantee equitably and without discrimination; That one of the steps outlined in order to carry out the Constitution was established by Ordinance of the MPR Number V of 2000 on the establishment of unity and national unity in which there are provisions regarding what to do with the human rights abuses of the past, where one of them is the need to established a national truth and Reconciliation Commission as an extra-judicial agency number and the message are defined by statute;

5 that as efforts to resolve human rights abuses that occurred in the past established statutory rules regarding the truth and Reconciliation Commission (TRC) by law (UU) No. 27 of 2004 legislation that created before, namely law No. 26 of 2000 on Human Rights Court. However, it has a weakness of the TRC ACT of principle regarding the search process and the achievement of reconciliation, which in the end will be very dangerous for the history of the nation of Indonesia; A truth and Reconciliation Commission requires the presence of a search process which is based upon the truth of the facts revealed that then made "official history" of a nation. To that end, all recognition through this Commission should be given in full or the "full truth" and there should be an opportunity to verify and do adequate investigation to obtain the real truth. Truth and Reconciliation Commission also requires a guarantee of the correct fulfillment of the rights of victims fairly and without discrimination, and should not be put in the position of victims of unbalanced and compressed. A truth and Reconciliation Commission also requires correct fulfillment of the principles of human rights, so that the Commission's goals and purpose, i.e. resolving the human rights violations of the past remain within the framework of the principles of universally applicable laws; But it turns out that the TRC ACT does not give such assurances, even otherwise negate the principles that should be owned by a truth and Reconciliation Commission. That challenge turned out to be against the principles of the Truth Commission have also violated the Constitution which has given assurances over the tribute, fulfillment, and protection of human rights; Meanwhile, the clauses in the Constitution give assurance over the similarities before the law [article 27 paragraph (1) and article 28D paragraph (1)], bail is not treated discriminatory [article 28I paragraph (2)], recognition, guarantees, protection and legal certainty the fair [article 28D paragraph (1)], enforcement and protection of human rights in accordance with the principles of a democratic State of law [article 28I paragraph (5)], as well as the protection of , the furtherance of the enforcement and compliance of human rights as the responsibility of the State. Consequently, the 6 laws related to human rights should ensure (1) guarantees for the victims to not experience discrimination, (2) warranties for the victims to obtain justice, fair-seadil (3) guarantees for the victims to get protection from the laws that were made and not vice versa thus does not protect the victim, (4) guarantee that the legislation relating to human rights that meets the principles of universally applicable law and recognized by civilized nations; When the laws that govern about truth and Reconciliation Commission, which is the ACT of the TRC did not meet the warranties given Constitution, then it should ACT is tested by the Constitutional Court in order that the rights of victims remain fulfilled. Really dangerous when a Commission that ideally seeks justice distributif thus instead delivers an injustice; Whereas the rights attached to the victim, i.e. the right to reinstatement are hung with the other circumstances, namely the Amnesty then it is obvious it is contrary to the guarantees provided by the Constitution. Furthermore, when the victim's rights to tackle the legal effort was shut down by law then back guarantee justice given by the Constitution to be broken. Furthermore, when the principles of universally applicable laws prohibiting amnesty for human rights violations, but it is precisely this Act describes the opposite, then the State of Indonesia should not make rules that are contrary to the principles of the law. Indonesia is a democratic State of law that guarantee the implementation of human rights as referred to the Constitution, hence the rule that is contrary to the principle of law that recognized this civilized country, would also contradict the Constitution worth noting that which becomes the object of the law on the truth and Reconciliation Commission is a violation of human rights that the weight (gross violations of human rights) which consists of genocide and crimes against humanity. Serious crime is international crime where the culprit is the enemy of all mankind (hostis humani generis) and prosecution against the culprit is the duty of all humanity (obligatio erga omnes). Therefore, the use of the principles of the internationally recognized should be included in the TRC ACT,


7 as the principles contained in the "Report of the Independent Expert to Update the Set of Principles to Combat Impunity" (E/CN. 4/2005/102/Add. 1, February 08, 2005), because the Constitution-admitted the principles of civilized Nations recognized this. Conversely, when the Constitution is declared does not recognize these principles, then it is the same state that Indonesia is not part of the civilized nations; Therefore, to create justice for all the people of Indonesia, as affirmed in the preamble of the Constitution of 1945, then all forms of injustice in the TRC ACT is declared to have no force of law that are binding. Constitution as the Constitution which guarantee protection for all citizens of Indonesia should be able to ensure that the truth and Reconciliation Commission was formed under law of the TRC being Commission in accordance with its mandate, i.e. the real truths in order to encourage the process of reconciliation for the sake of the future of this nation; II. LEGAL BASIS of the PROPOSALS MADE a PLEA: 1. That Article 24 paragraph (2) of the third Change Constitution states "the Authority of justice done by a Supreme Court and the judiciary under it and by a Constitutional Court". 2. That Furthermore Section 24C subsection (1) changes the third Constitution states: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the CONSTITUTION, severing of disputes the State agencies the Authority those powers granted by the CONSTITUTION, severing the dissolution of political parties and break the disputes about election results". 3. That on the basis of the provisions above, the Constitutional Court has the right to conduct its test or Act (the ACT) against the CONSTITUTION is also based on article 10 paragraph (1) of ACT No. 24 of 2003 about the Constitutional Court which declared "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for: (a) the test Act (the ACT) against the 1945 CONSTITUTION of INDONESIA".

8 4. That by the application object because the right Test it is the ACT of the TRC, then based on the above mentioned regulations of the Constitutional Court is authorized to investigate and prosecute this appeal. III. THE POSITION OF THE LAW AND THE CONSTITUTIONAL INTERESTS OF THE APPLICANT. 5. That the recognition of the right of every citizen of Indonesia to apply testing legislation against the Constitution is one indicator of the development of a positive attempt to reflect the existence of advancement for the strengthening of the principles of State law; 6. see statement of the Constitutional Court of the Republic of Indonesia, to function inter alia as "guardian" of the "constitutional rights" every citizen of the Republic of Indonesia. The Constitutional Court of the Republic of Indonesia is a judicial body which keeps human rights as a constitutional right and the legal rights of every citizen. It is this awareness with the Applicant then, decided to apply for a RENEWAL of the ACT test is contrary to the spirit and soul as well as articles published in UUUD 1945; 7. That Article 51 paragraph (1) of ACT No. 24 of 2003 about the Constitutional Court stated "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: (a) individual INDONESIAN CITIZEN, (b) law of indigenous communities throughout the Union is still alive and in accordance with the development of society and the principle of the unitary State of INDONESIA regulated in laws, (c) public and private legal entities , or (d) the institutions of the State. " The APPLICANT BODY of PRIVATE LAW: 8. That the applicant's Number of Applicant I s. d VI is an applicant which is a body of private law which have legal standing and exercise his right to apply for this by using the procedure of organization standing (legal standing); 9. That the Applicant of the Number I s. d IV had the position of law (legal standing) as the applicant testing laws because there are causal inter-connectedness (causal verband) legalization ACT TRC thus causing the constitutional rights of the aggrieved Applicants;

9 10. That the doctrine of the organization standing or legal standing is a beracara procedure which not only in the doctrine but also has been embraced in different legal regulations in Indonesia such as Act No. 23 of 1997 on environmental management, law No. 8 of 1999 on the protection of consumers, law No. 41 of 1999 on Forestry; 11. judicial practice that in Indonesia, legal standing has been accepted and recognized into the mechanism in search efforts for Justice, which can be proved as follows: a. in the ruling of the Constitutional Court. 060/PUU-II/2004 about testing LAW number 7 of 2004 about water resources against the CONSTITUTION of 1945; b. in the ruling of the Constitutional Court. 003/PUU-III/2005 about testing the ACT number 19 of 2004 concerning the determination of the Replacement Government regulations ACT No. 1 of 2004 on changes to the ACT Number 41 of 1999 on Forestry into law against the CONSTITUTION of 1945; c. in the ruling of the Constitutional Court the number 001-021-022/PUU-I/2003 about testing the ACT Number 20 in 2002 about Ketenagalistrikan against the CONSTITUTION of 1945; d. in the Central Jakarta District Court ruling Number 820/PDT. G/1988/PN. JKT. PST (WALHI case against Indorayon) between Foundation Environmental Vehicle (WALHI) against the center of the capital investment Coordination Board (BKPM), Governor of North Sumatra area of level I, Minister of industry, Minister of State for population and the number of court 154/PDT. G/2001/PN. JKT. PST (lawsuit Jakarta a GRANT) between the Non-profit Coalition for transparency of the budget consisted of INFID, UPC, YLKI, FITRA, fingers, ICW, KPI, YAPPIKA against DPRD DKI Jakarta Governor and Head of the regional level I Jakarta; e. Court decision Number 213/PDT. G/2001/PN. JKT. PST (the case of Sampit), YLBHI, the CONTRAST between the PBHI, ELSAM, the President of the Republic of Indonesia against APHI, Chief of police of the Republic of Indonesia,


10 Chief of police, Chief of the Central Kalimantan Police Resort East Kotawaringin, Regional Governor of Central Kalimantan level I; f. in the case of termination of the investigation in the case of alleged corruption in the Paiton steam power Centre, Tribunal Judges recognize the right of Non-governmental organizations or Ngos to represent the interests of the society filed suit in corruption eradication efforts in Indonesia; g. State Court Verdict Bandung Number 154/Pdt/G/2004/PN. Bdg dated August 27, 2004 between Animal Advocacy Agencies (LASA) against the West Java Regional Police Headquarters; 12. That the organization can act represents the interests of the general public/is an organization that meets the requirements specified in various laws and regulations or the jurisprudence, namely: a. the shape of a legal entity or Foundation; b. in the articles of organization in question mention firmly about the purpose of the establishment of the Organization; c. has been carrying out activities in accordance with the budget essentially; 13. That the applicant I s. d VI is a Non Governmental Organization or non-governmental organization (NGO) that grow and develop in their manual, on the will and desire of her own in a society founded on the basis of concern to provide protection and enforcement of human rights in Indonesia; 14. That the duties and role of the Applicant I s. d VI in carrying out activities for the protection and enforcement of human rights in Indonesia has been continually leverage existing institution as a means to fight for human rights; 15. That the applicant's role and tasks I s. d VI in carrying out enforcement activities, protection and defense of human rights, in this case the harness institution as a means to involve as many members of the public in fighting for awards and honours human rights values 11 man against anyone without discriminating gender, ethnic origin, race, religion, etc. This is reflected in the articles of Association and/or deed of establishment of the Applicant (proof of P-2a, 2b, P-P-P-2 c, 2d); 16. That the basic law and the interests of the Applicant Number I s. d VI in applying Testing Act No. 27 of 2004 can be evidenced by Statutes and/or Bylaws of the institution in which the Applicant works. Applicant institutions I s/d VI-shape legal entity or Foundation; in the articles of Association and/or Bylaws mention explicitly regarding the purpose of the establishment of the Organization, and has been carrying out activities in accordance with its articles of Association; a. in the article 5 of the articles of Association of the applicant I, a bevy of Institutions of study and Community Advocacy (ELSAM), mentioned on the opening of ELSAM Constitution and the Universal Declaration of human rights. Later in the article 7 stated that ELSAM aims to embody public order that cling to the values of human rights, justice and democracy, both in the formulation of the law or its implementation; b. in article 6 of the Bylaw Applicant II, the Commission for missing persons and victims of violence (Kontras), mentioned that the Contrasting aims (1) to foster democracy and justice based on the integrity of the people's sovereignty through the Foundation and principle of people free of fear, oppression, violence and various forms of human rights violations and discrimination, including that based on gender. (2) Create democracy and justice with respect for and basing on the need and the will of the people as the subject of democracy. (3) Fostering, developing and advancing understanding and respect will be the values of human rights in General and in particular to elevate the consciousness of law in society, both to officials as well as ordinary citizens in order to be aware of the rights and obligations as subjects of law; c. in article 3 Statutes of the applicant III, the Foundation of solidarity Nusa Bangsa (SNB), mentioned that the Foundation was based on Pancasila and the 1945 CONSTITUTION and the principles of the normative human rights particularly the 12 UN Convention on Elimination of all forms of racial discrimination as well as human values are universal; d. In the applicant's articles of Association article 3 IV, a bevy of IMPARSIAL, stating that IMPARSIAL based on a statement of principles on human rights, Pancasila and the 1945 Constitution. In Chapter 4 of this Bylaw institutions stated that the intent and purpose of gathering IMPARSIAL is to: (1) encouraging the growth of a civil society initiative to become the backbone of a broader atmosphere of a democratic and equitable transition; (2) advancing the understanding and knowledge of the community of the importance of control over the behavior and was against the Law and violations of human rights; (3) build of the basics of the answer to the problem of Justice in Indonesia based on the reality of the economic, social and political through empirical studies; (4) encourage the inception of the legislation Commission of truth and justice as well as the formation of the Court for perpetrators of human rights violations, by setting up the derivatives legislation, among others, witness protection legislation; e. In the applicant's articles of Association article 3 V, 65 Events Victims Research Institute (LPKP 65), stated that this institution is based on justice, equality and humanity in accordance with the view of life Pancasila Indonesia, a nation of democracy. In article 5 paragraph (1) and (3) stated that the Agency was formed with a view to uncovering the truth of the facts of the history of post-war events 65 whose results will be given to the Government to follow up and assist the families of the victims of post event the 65 abandoned in accordance with the ability of the institution; f. in article 4 changes to the articles of Association of the applicant Institution the rehabilitation Struggles VI, Civil victims of the regime of ORBA (LPR KROB) stated this LPRKROB based on Pancasila and the 1945 CONSTITUTION. In article 4 stated intents and purposes of these institutions are (1) gather all the victims of the tragedy of September 1965 from the new order authoritarian regime under the leadership of Suharto; (2) the fight for the rehabilitation to the fullest over the status and rights of the victims of the political and social economy


13 new order regime and restore his rights as a citizen of the Republic of Indonesia that is democratic, justice and respect for human rights; 17. That the applicant's Number I s. d VI in achieving the purpose and the goal has been conducting a wide range of business/activities performed continuously in order to perform tasks and its role. The things which have become common knowledge (notoire feiten): a. That in order to realize the public order that cling to the values of human rights, justice, and democracy, both in the formulation of the law as well as in their implementation, the applicant I (ELSAM) have (i) did the assessment against the policies (policies) and or the law (laws and regulations), its application, as well as their impact on economic and social life, culture, community; (ii) developed the idea and conception or alternative policies on the law that responds to the needs of the community and protect human rights; (iii) advocate in various forms for the fulfillment of the rights, freedoms, and the needs of the community justice; (iv) disseminate information with regard to ideas, concepts, and insightful legal policies or human rights, democracy, and justice in the middle of the wider community, where these activities are implemented in the form: 1. The study of policies and/or laws that have an impact on human rights; 2. Advocacy of human rights in various shape; 3. Education and training in human rights; 4. The publication and dissemination of human rights information; 5. Publishing. b.1. That in fostering democracy and justice based on the integrity of the people's sovereignty through the Foundation and principle of people free of fear, oppression, violence and various forms of human rights violations and discrimination, including that based on gender, Claimant II (Contrast) has advocated the case – the case of severe human rights abuses occurred before fine 14 enactment – Law No. 26 of 2000 on Human Rights Court and after the enactment of these Laws –. Cases of severe human rights abuses before the enactment – Law No. 26 of 2000, including the case of the kidnapping of activists in 1998, cases of riots of May 1998, the Tanjung Priok case, case of Talangsari Lampung and shooting Students Trisakti, Semanggi I and II as well as other cases – cases. Including regular meetings at the level of the community and the student victims by providing legal counselling, discussions and film screenings; b. 2. That in creating democracy and justice with respect for and basing on the need and the will of the people as the subject of democracy, the applicant II has done a workshop-the workshop together with victims to formulate joint activities a strategic advocacy in an effort to change a policy that does justice to the victim/people; b. 3. That in fostering, developing and advancing understanding and respect will be the values of human rights in General and in particular to elevate the consciousness of law in society, both to officials as well as ordinary citizens in order to be aware of the rights and obligations as subjects of law, the applicant II intense campaigns of his human rights through seminars, public discussion as well as several other publications such as posters, stickers, books, at the level of national or local network with base-the base. In addition the applicant II was also involved in various efforts policy changes be formulation of materials legislation and lobby-strategic to lobby State apparatus (Executive, legislative and judiciary); c. that the applicant III (SNB) which was founded as a response to the events of May 13-15 riots of 1998 that had led to the collapse of thousands of victims of acts of violence. The APPLICANT III provides accompaniment for the victims of either psychological assistance, temporary accommodation and then help advocacy. Starting from the May case, the applicant III to see that it is but an explosion of political and racial segregation that is applied by the State 15 to cause disunity in Indonesia society. The politics of the segregatif poured in various forms of racist policies either written or not written in the form of legislation. The focus of the work of the applicant III since then is to advocate the Elimination of all forms of racial discrimination which clearly is a violation of human rights contrary to the universal values and the Constitution. The advocacy carried out among others in the form of: 1. Providing legal assistance against various victims who experience various discriminatory actions both on the basis of race, ethnicity, religion and political beliefs; 2. conduct studies against any form of discriminatory regulations based on race, ethnicity, religion and political beliefs; 3. Propose draft legislation on Anti racial and Ethnic Discrimination to the Government and the PARLIAMENT; 4. Do the Elimination of all forms of discrimination campaigns at the national level and international level either through forum seminars, publishing books, etc. d. that in protection, promotion and fulfilment of human rights, the petitioner IV (IMPARSIAL) have committed efforts, among others, as follows: 1. Perform logging violations of human rights; 2. Doing research and publishing reports related to defense and Security Sector Reform; 3. conduct assessments against the draft LAW, the Act and the rules of law relating to the protection of human rights; 4. Conducting advocacy and campaigns related to the issue of terrorists, civil liberties, defense and security, the protection of defenders of human rights, the death penalty, human rights violations, especially in Aceh and Papua;


16 5. Conduct studies and study of regulations that are contrary to the rules of the Universal human rights and Constitution, and propose alternative policy to the Government and the HOUSE of REPRESENTATIVES, for example against the terrorist ACT, the TNI and the BILL State secrets; 6. Human rights education and cooperation with the network of Human Rights Defenders in Aceh and Papua; 7. conduct lobby and international cooperation to improve the protection of human rights in Indonesia, especially against human rights defenders; 8. Establish and develop the Organization and the network of human rights nationally and internationally, including the Coalition for freedom of civil society and human rights Solidarity. e. that in protective measures, promotion and fulfilment of human rights, the petitioner V, LPKP 65, has done a disclosure of the facts the truth of history events post 65 the results given to the Government. LPKP 65 also helps victims ' families abandoned the post peristwa 65. In addition, LPKP 65 also has been instrumental as well as help the Government educate the nation's life in accordance with the intent and purpose of the Preamble of 1945. f. the applicant VI (LPR KROB) which was established on 16 January 2000 is a Non governmental organization aimed at the rehabilitation of the victims of the G 30 S 1965, consisting of all walks of life, from high-ranking government officials to ordinary people who were arrested and detained without going through the judicial process by the fascist regime of Suharto. That in the protection, promotion and fulfilment of human rights, LPR KROB has conducted efforts, among others, as follows: 1. Gather the victims G 30 S 1965 and helped alleviate the sorrow they experienced; 2. To defend and protect the victims;

17 3. Government urged to revoke repressive regulations that are still in force today, Presidential Decree No. 28 Numbers like in 1975, the regulation of the Minister of Home Affairs Number 32 in 1981, etc.; 4. Organize a mass movement urged the Government to repeal repressive laws sponsored by Suharto's regime; 5. Forming and developing a network of Non governmental organization that is progressive in order to defeat the remnants of the Government; that is still dominant in all levels of the bureaucracy. 18. That the attempts of protection, promotion and fulfilment of human rights committed by the appellant I s/d VI has been listed in the Constitution, that in this appeal especially article 27 paragraph (1) of article 28D, paragraph (1), article 28I paragraph (2), article 28I paragraph (4) and article 28I paragraph (5); 19. That the attempts of protection, promotion and fulfilment of human rights committed by the appellant I s. d VI has been noted in the national legislation, namely Act No. 39 of 1999 on human rights; 20. That the efforts for the protection, promotion and fulfilment of human rights committed by the appellant I s. d VI has been noted also in the various principles of international law on human rights; 21. That Furthermore the applicant I s. d VI has a constitutional right to fight for its rights jointly for the benefit of the nation and the country. According to section 28C subsection (2) of the Constitution of 1945 stated: "everyone has the right to promote himself in the fight for the right collectively to build community, the nation and the country.". 22. In the meantime, the issue of human rights that became the object of the ACT the TRC to be tested is the question of every human being due to the nature of the question of HUMAN RIGHTS so that even/not only into the Affairs of the applicant who is nota bene directly come into contact with HUMAN RIGHTS issues, but also became a question of every human being in this world.

18 23. Further, the submission of the application for testing the existence of the TRC ACT is the concern and efforts of the applicant for the protection, promotion and enforcement of human rights in Indonesia. 24. That thus, the existence of the Article 1Aayat (9), article 27, article 44 of the TRC ACT is potentially violating the Constitution of the applicant I s. d VI, with a direct or indirect way, harm a variety of efforts that have been conducted on an ongoing basis in order to perform tasks and role for the promotion of protection and fulfilment of human rights in Indonesia including stood and fought for the rights of victims of human rights violations had been committed by the applicant s d I VI. The APPLICANT INDIVIDUALS 25. That the Applicant of the Number VII s/d VIII is the applicant-Claimant the individual Citizens of the Republic of Indonesia who is the victim in cases of violations of human rights which will be the subject of Act No. 27 of 2004 and potentially harmed the rights of its Constitution or affected or harmed its existence directly due to clauses in law No. 27 of 2004 about the truth and Reconciliation Commission; 26. That the applicant VII was the victim in the cases of disappearances of people forcibly 1997-1998. (Proof of P-4a and 4b. P-1, P-4b. 2); 27. That the applicant VII has been kidnapped by force by a team of eleven people named Tim Rose. The victim was arrested on last RSCM inserted into a red jeep with eyes closed black fabric with hand terborgol back. During the trip, the victim was taken to stop spinning in one place then known as Posko Cijantung, known then as the headquarters of the Special Forces Command (Kopassus) Soldiers Indonesia National Army (TNI-AD). During their captivity, the victims were interrogated and tortured as it struck, seated under a folding chair, ditodong with a pistol, forced to sleep tengkurap dibalok es with the clothes off. Then the applicant VII on 25 April 1998 released by the mob with threats if he went back to doing


19 political activity then her family will suffer the worst risk. After being threatened, the applicant was given a train ticket for her family in Jepara. To this day there is still fourteen people who have not returned the forced disappearance cases relating to 1997-1998; 28. That the applicant VIII was the victim who was a former political prisoner and has been held without trial through the process because the accused (stigmatization) involved directly or indirectly in the G-30/s. (proof of P-5); 29. That the applicant VIII process arrests are arbitrary detention was later imprisoned for 14 years without any judicial process of any kind. The APPLICANT VIII also suffered acts of torture while in custody and continues to experience civil and political discrimination perpetrated by the State after his escape from custody. The rights of ownership and rights of labour that he had also taken away by the State; 30. That thus the applicant VII and VIII is a victim of human rights violations in Indonesia, so that should get his rights are automatically attached to her like the right to restitution, compensation, and rehabilitation. This is in accordance with the provisions and principles of international human rights law which in principle and practice recognized by Indonesia, such as article 27 paragraph (1) of article 28D, paragraph (1), article 28I paragraph (2), the principles and provisions contained in the Basic Principles and Guidelines on The Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law , C.H.R. Res. 2005/35, U.N. Doc. E/CN. 4/2005/l. 10/Add. 11, The Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN. 4/2005/102/Add. 1, as well as the international conventions-conventions have been ratified by Indonesia; 31. That deals with things not allowed bail for the rights of the victims rights and/or the authority of the Constitution of the applicant have been wronged; The Applicant Has The Capacity As Applicant Test Material. 32. That based on the above description, it is clear the Applicant already meet the quality or capacity of the applicant's "as good as Individual citizens of 20 countries Indonesia" as well as private law Entity "Applicant" in order to test the legislation against the Constitution as specified in article 51 of the letter c of the Act of the Republic of Indonesia No. 24 of 2003 on the Constitutional Court. Therefore, the petitioners also clearly has a right and interest of the legal representative of the public interest to apply for the test against the TRC ACT the CONSTITUTION of 1945; 33. That the clauses in the ACT violates the guarantee of the TRC for the victims to not experience discrimination, guarantees for the victims to get justice seadil-fair, guarantees for the victims to get protection from the law, guarantee that the legislation relating to human rights that meets the principles of universally applicable law and recognized by civilized countries. Therefore, the interests of victims of human rights violations were harmed in the TRC ACT articles, as mentioned and described in the reasons for the plea, the applicant's loss is good as the institution that represents the interests of law victims, as well as individual victims will be the subject of such legislation; Iv. The Reasons For The Petition Asking The Right Test Material. -Article 27 of the TRC ACT is contrary to the Constitution, namely article 27 paragraph (1), Subsection 28D (1), 28I paragraph (2) of the CONSTITUTION of 1945; 1. the Constitution prohibits discrimination, guarantees the Legal Equation in front of and respect for human dignity; 34. That Constitution gave assurances to citizens of Indonesia which includes things as follows: article 27 paragraph (1): All citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya; Article 28D paragraph (1): everyone is entitled to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law;

21 Article 28I paragraph (2): everyone has the right to be free from discriminatory treatment on the basis of anything and is entitled to protection against discriminatory treatment; 2. Article 27 of the ACT of the TRC Has Negated warranties of Anti-discrimination, the equation in front of law and the Respect of Human Dignity in the Guarantee by the Constitution; 35. With regard to the warranties given Constitution, then the provisions of article 27 of the ACT of the TRC had negated such assurances, with reasons as outlined here: UUKKR article 27 States that: "the compensation and rehabilitation as mentioned in article 19 can be given in a petition for amnesty granted." Further, in the General section of the TRC ACT Explanation menyata kan: "If the offender admits mistakes, acknowledge the truth of the facts, expressed regret over his actions, and is willing to apologise to the victim or the victim's family is his heir, the perpetrators of human rights abuses which Amnesty can apply weight to the President. When the Amnesty petition is grounded, the President may accept the application, and to the victim should be given compensation and/or rehabilitation. When the Amnesty petition is denied, then the compensation and/or rehabilitation is not granted by the State, and followed up the matter to be resolved on the basis of the provisions of law number 26 of 2000 on Human Rights Courts. " a. the provisions of article 27 of the TRC ACT that makes the victim over compensation and rehabilitation depend on the granting of pardon and not on the substance of the matter, has mendiskriminasi the victim and breaking the collateral for the protection and equality before the law and respect for human dignity; b. that based on article 27 of the ACT of the TRC and its explanation, recovery (compensation and rehabilitation) can only be granted if the application


22 amnesty granted. This has negated the right of recovery against the victim because of the victim's recovery is in no way associated with or no amnesty; c. That even further, the concept of Amnesty in the TRC ACT article 27 requires the presence of the offender. Consequently, in the absence of the perpetrator is found, then it will not be possible given amnesty. The next result, victims don't get collateral for the recovery; d. these terms has been mounting the victims of human rights violations in a State that is not balanced and depressed, because the victim is given the weight requirements to obtain its rights, that is, dependent upon the granting of Amnesty; e. implications of the formulation of article 27 of the TRC ACT will give the injustice to the victims of human rights violations. Because the victim has to hope that the perpetrator had been made the victims suffer can get Amnesty because, if the offender does not get amnesty, then the rights of victims over compensation and rehabilitation i.e. recovery can't get the victim and the victim must traverse another attempt that is not certain; 36. Thus, the provisions of article 27 of the TRC ACT has made the position of balance between the victim and the offender and have mendiskriminasi rights to recovery (compensation and rehabilitation) attached to the victim and is not dependent on the perpetrator. The articles also don't appreciate the sacrifice that has been suffered due to the violation of human rights that the weight of hers; 3. the Constitution Recognizes the principles of international law on human rights; 37. That as a civilized State Constitution, Constitution in line and consistent with principles recognized by civilized nations around the world as stated by article 55 and 56 UN Charter; Article 55 With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle 23 of equal rights and self-determination of peoples, the United Nations shall promote: higher standards of living, full employment, and conditions of economic and social progress and development; solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Article 56 All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55; 38. That Article 28I paragraph (5) of the Constitution recognizes that Indonesia reciprocity of State of a democratic law, whereby the implementation of human rights is set and guaranteed through statutory rules. This law guarantees should include the values of human rights contained in international law; 39. the recognition That international principles reaffirmed in the real through amendments to the Constitution, to which all the provisions on human rights in the Constitution, including article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution, have adopted the values of international human rights is universal; 40. That by paying attention to the values of human rights which are universal, as recognized by the Constitution, then the Act No. 27 of 2004 also should not be contrary to the principles of law on human rights that have been recognized internationally, including those set forth in the Basic Principles and Guidelines on The Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law , C.H.R. Res. 2005/35, U.N. Doc. E/CN. 4/2005/l. 10/Add. 11 (proof of P-6), and The Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN. 4/2005/102/Add. 1 24 (proof of P-7), as well as the international conventions-conventions have been ratified by Indonesia; 41. That Moreover, the enforceability of international sources on human rights also affirmed and recognized through other statutory rules, i.e. the Statute MPR No. XVII of 1998 on human rights (proof of P-8), Act No. 39 of 1999 on human rights (proof of P-9), and law No. 26 of 2000 on Human Rights Courts (proof of P-10). So there is no doubt that the provisions of the law in Indonesia recognizes the principles of universal human rights; 42. That Furthermore, recognition of the enforceability of international sources has also been practiced in the ruling of the Constitutional Court concerning Article 60 of the letters g law No. 12 of 2003 on general elections of REPRESENTATIVES, DPD, Provincial and SUB-PROVINCIAL PARLIAMENTS Kabupaten/Kota (Docket Number 011-017/PUU-I/2003, 24 February 2004) (evidence of P-11) and the ruling of the Constitutional Court No. 065/PUU-II/2004 regarding Testing ACT RI number 26 of 2000 on Human Rights Court , dated 03 March 2005 (evidence of P-12); 43. That spirit of all national regulations were in line with the spirit of which is contained in a number of international and regional legal instruments, such as the Universal Declaration of human rights (DUHAM) and the International Covenant on Civil and Political Rights (ICCPR) (proof of P-13); 44. That in TAP MPR No. XVII of 1998 on the part Considering the letter b stated: a that the preamble of the Constitution of 1945 was rnengamanatkan acknowledgment, respect, and the will for the implementation of the rights of rnanusia in organizing the life of the society, nation and State; Next section Considering the letter c confirms the following: that the nation of Indonesia as a part of the world community ought to be respectful of the human rights set forth in the Universal Declaration of human rights of the United Nations and various other international instruments concerning human rights.


25 45. That in General explanation of Act No. 39 of 1999 on human rights stated that: "the arrangements regarding human rights determined based on the Declaration of human rights of the United Nations, the United Nations Convention on the Elimination of all forms of discrimination against women, the United Nations Convention on the rights of the child, and various other international instruments governing human rights." 46. A General Description of that in law No. 26 of 2000 on Human Rights Court of human rights stated: "it should be implemented with a full sense of responsibility in accordance with the philosophy of Pancasila and the 1945 Constitution and the principles of international law". 47. That the enforceability of the principles of international human rights has also been recognized through the ruling of the Constitutional Court concerning Article 60 of the letters g law No. 12 of 2003 on general elections of REPRESENTATIVES, DPD, Provincial and SUB-PROVINCIAL PARLIAMENTS Kabupaten/Kota (Docket Number 011-017/PUU-I/2003, 24 February 2004) and the ruling of the Constitutional Court Number 065/PUU-II/2004 regarding Testing ACT RI No. 26 of 2000 on Human Rights Court , dated 03 March 2005. In the ruling, the Constitutional Court contains the Universal Declaration of human rights and the Covenant on civil rights and political rights as the basis for the consideration of the law; 48. Because of the Constitution expressly recognizes the principles of international law, then automatically the recognition of the Constitution includes the following international principles concerning the rights of victims of human rights violations. Thus, protection from discrimination, as well as warranties of equations in front of law and recognition of human dignity as provided for article 27 paragraph (1) of article 28D, paragraph (1), article 28I paragraph (2) of the Constitution also includes the principles regarding the rights of victims of human rights violations; 4. Entitlement to recovery (compensation, Restitution and rehabilitation) is a Victim at the same time the obligations of countries to Comply: 49. That is because the object of Act No. 27 of 2004 about the truth and Reconciliation Commission is a violation of human rights that the weight (gross violations of human rights 26) which is an international crime, then the principles and guidelines contained in the Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (C.H.R. Res. 2005/35) should be covered by the provisions on the restoration according to UUKKR , which is contained in section 27 of the ACT; 50. the international provisions That provide assurance over the rights of victims, as well as discrimination, lack of collateral for the guarantees over the similarities before the law, and guarantee the top honour human dignity as guaranteed by the Constitution; 51. That article 10 Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law stated that: Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well being and privacy , as well as those of their families. The State should ensure that its domestic laws, to the extents possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to his or her re • avoid traumatization in the course of legal and administrative procedures designed to provide justice and reparation; 52. That rule about this recovery should include the principle of appropriateness, effectiveness and rapid process, and ensure that victims get access to justice as mentioned in article 11, article 15, and article 17; Article 11 Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law mention: 27 Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the right to the following victim's the US provided for under international law : (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; and (c) Access to relevant information concerning violations and reparation mechanisms; Article 15 of the Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law mention: Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim; Article 17 Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law mention: States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements.


28 53. That in the event of the grant of this restoration is not allowed the existence of discrimination as mentioned in article 25 Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, namely: The application and interpretation of these Principles and Guidelines must be consistent with international human rights law and international humanitarian law and be without any discrimination of any kind or ground , without exception; 54. That the rights of victims and the obligations of the State in terms of recovery should not be restricted or reduced and should include the principles in the Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. This is confirmed in article 26 which reads: Nothing in these Principles and Guidelines shall be construed the U.S. restricting or derogating from any rights or obligations arising under domestic and international law. In particular, it is understood that the present Principles and Guidelines are without prejudice to the right to a remedy and reparation for victims of all violations of international human rights law and international humanitarian law. It is further understood that these Principles and Guidelines are without prejudice to special rules of international law; 55. That principle concerning the rights and obligations of victims over the recovery of the Country giving recovery recognized by Convention-International Convention which has been ratified by Indonesia, namely the Convention Against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) through law No. 5 of 1998 (proof of P-14a and 14b), Anti racial discrimination Convention (Convention on the Elimination of All Forms of Racial Discrimination) through law No. 29 of 1999 (proof of P-15a and 15 b) , and the Convention on children's rights (Convention on the Rights of Child) through the Presidential Decree No. No. 36 of 1990 (proof of P-16a and 16b); 56. That the rights of victims over recovery has been recognized in national law contained in article 35 of LAW No. 26 of 2000 on Human Rights Court 29, article 2 letter a and letter b Anti Torture Convention, article 6 of the Convention of Anti racial discrimination, and article 9 Convention on the rights of the child; 57. That Article 14 of the Convention Against Torture States: 1. Each State Party should ensure in its legal system the victim of acts of torture obtains redress and has the right to get a fair and decent compensation, including the means for as full rehabilitation as possible. In the event that the victim died as a result of acts of torture, the heirs are entitled to compensation; 2. In this article there is no anything that could reduce the rights of the victim or others for damages that may have been set in national law; 58. That article 6 Anti racial discrimination Convention States: States parties shall ensure that effective and improved protection for every person to be under its jurisdiction through the authorized national courts and other State institutions against any acts of racial discrimination which violate human rights and fundamental freedoms contrary to this Convention, as well as the right to adequate compensation or satisfy the Court of any form of losses suffered due to the treatment of that discrimination. And explanation of law No. 29 of 1999 regarding the ratification of the Convention on the Elimination of Racial Discrimination declared the entire Form, the State party should also guarantee the protection and effective repairs for any person who is under the yuridiksinya against any acts of racial discrimination as well as the right to an adequate indemnity and satisfy any form of losses suffered due to the treatment of discrimination. 59. That Article 39 of the Convention rights of the child States: States parties shall take all appropriate measures to improve the physical and psychological healing and integration of social return a child who became a victim of any form of neglect, ... 60. the ratification of the International Convention that through the above, automatically country Indonesia has acknowledged the rights and obligations of the State recovery provides recovery;

30 61. That way, the restoration of rights (right to reparation), which consists of compensation, restitution and rehabilitation is a right inherent in the victim. In this case, the State is obligated to provide recovery to victims of human rights violations which the weight without any regard to whether the culprit was given amnesty or not. Not even depend on whether the culprit can be found or not, this is in line with the Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, C.H.R. Res. 2005/35, it says that "a person is viewed as a victim without depending on whether the culprit is identified, arrested, prosecuted, or convicted...": (article 9). Following the sound of the original text of the article: A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim. 62. That Furthermore Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law also States that the State is obliged to: "provide access to justice (access to justice) are feasible and effective to those who claim to be victims of violations of human rights law or heavy humaniter , regardless of who becomes the main person in charge of such crimes "(article 3). As it is written in full as follows: The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law of the US provided for under the respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described


31 below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below; 63. That obligation of State over this recovery has been recognized as a principle of international law and even the conception of the common law is based on the main international court case (Permanent Court of International Justice), which is the case of the Chorzow Factory in 1927 and 1928 (the Factory at Chorzow, Jurisdiction, ruling No. 9, 1927, P.C.I.J., series A, no. 9, and the Factory at Chorzów, Merit, ruling No. 13 , 1928, P.C.I.J., series A, no. 17). (Proof of P-17a and 17b-P); 64. That since the right of recovery is the obligation of the State, thus fulfilling the right to recovery is done by the State and the fulfillment of this right is not bound on other conditions, such as weather or not there is a punishment or forgiveness (Amnesty) to the offender; 65. Therefore, the right to recovery is the rights attached to the victim that does not depend on the Amnesty regardless of whether the culprit was found or not and the obligation to fulfil the rights of the victims; 5. Article 27 of the TRC ACT Deprive Victims Over the recovery of the 66. That argument is based on the arguments above, the formulation of article 27 of ACT No. 27 of 2004 has been deliberately deprive victims upon recovery; 67. That by requiring the granting of rights to recovery by granting amnesty to perpetrators require that victims know or recognize the perpetrators of human rights violations. Though the perpetrators of violations of human rights that are not easily identifiable good weight due to the limitations of the victim, the form of the crime (e.g. forced disappearances), as well as by the limitations of the sub Commission of investigation which are not able to find the offender directly or indirectly, then the victim will not get its rights over compensation and rehabilitation;

32 68. That if the victim has been recognized as victims by the truth and Reconciliation Commission, but due to various considerations did not get amnesty, then the victim will not get its rights over compensation and rehabilitation. In this case the victim should suffer having to confront an uncertain process whether there will be a Court of human rights Ad Hoc or if they exist there is no guarantee whether victims will get their due; 69. Thus, article 27 UUKKR thus by arbitrarily limiting the rights attached to the victim, i.e. entitlement to recovery; 6. Article 27 of the TRC ACT of placing the victim in a distressed Position and was disproportionate to the Offender. 70. That the formulation of article 27 put the victim in a position that does not benefit where victims are hard to give his decision freely; 71. The sacrifice must face the lack of choice that is free, i.e. it should receive any recognition of the perpetrator, then give the apology and hope that maafnya can help principals get amnesty. This had to be done in order to sacrifice certainty regarding its rights would be compensation and rehabilitation; 72. This situation will be exacerbated when the victim is a person who is not capable or so suffered increasingly have to suffer because of the need to be forced to give his approval of the process pemaafan for amnesty without based on top-free deal; 73. Or, if they do not give the victim's maafnya, the sacrifice with forced to hope that the Offender get Amnesty so that Victims can obtain compensation and rehabilitation; 7. Article 27 of the TRC ACT is a form of Discrimination against a real victim of 74. Therefore, all provisions that restrict the rights of victims over the recovery and negate the obligation of the State to give this restoration is one form of discrimination, and inequality before the law, as well as 33 is also contrary to the recognition, guarantees, protection and legal certainty. 75. That the United Nations has also adopted the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN Doc. E/CN. 4/2005/102/Add. 1. One of the important purposes of collection of this principle is to be a guide for the Commission on the truth. 76. That principle is attested in 31 in the Updated Set of Principles for the Protectionand Promotion of Human Rights through Action to Combat Impunity of those on the Right and Duties Arising Out of the Obligation to Make Reparation, that: "[a] ny human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries , implying a duty on the part of the State to make reparation ... " 77. Furthermore, the principles of the 32 in the aforesaid documents about Reparation Procedures asserts that: "... in exercising this right, they shall be afforded protection against intimidation and reprisals." 78. a previous document That also contains a collection of the principle of the protection of human rights, The Administration of Justice and the Human Rights of Detainees: The Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), E/CN. 4/Sub 2/1997/20, (the Joinet Principles) (evidence of the P-18), in the attached at Paragraph 32 of the asserted that: "this cannot be Amnesty to perpetrators of violations before the victims have obtained justice by means of an effective remedy. It must have no legal effect on anyproceedings brought by victims relating to the right to reparation ". 79. But instead, the formulation of article 27 of the TRC ACT thus has obligations of State menafikkan top of that recovery by making the grant of rights to recovery depends on the granting of Amnesty;


34 80. Thus, in article 27 of the TRC ACT is executed, then the State has to act against discriminatory; 8. Article 27 of the TRC ACT contrary to CONSTITUTION 1945 81. Based on the above, the constitutional rights of the Applicant, either as victims of human rights violations as well as a companion offering that represents the interests of the victim to get bail before the law equation, collateral for the recognition, protection and legal certainty are fair, as well as guarantees to be free from discriminatory treatment, it has to be broken by the provisions of article 27 of the ACT Number 27 in 2004. Thus the formulation of article 27 UUKKR contradicts Constitution particularly article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (4) of the Constitution. IV. 2. Article 44 of ACT No. 27 of 2004 contrary to Article 28D paragraph (1) and article 28I paragraph (4) of the Constitution. 82. That Section 44 of the ACT Number 27 in 2004 about the truth and Reconciliation Commission stated as follows: "the human rights violations that have been disclosed are heavy and resolved by the Commission, the matter can not be submitted again to the Court of human rights Ad Hoc." 1. Article 44 of the TRC ACT cover the possibility of Victims to get Justice Through the courts. 83. The third Paragraph of the general explanation is That the ACT of the TRC stated as follows: "to uncover human rights violations which the weight necessary concrete steps by establishing truth and Reconciliation Commission in accordance with the mandated by article 47 paragraph (2) of LAW number 26 of 2000 on Human Rights Court. In addition, the establishment of the mandate of the ACT about the truth and Reconciliation Commission is also based on the people's Consultative Assembly Ordinance Number V/MPR/2000 concerning the establishment of unity and national unity are commissioned to establish a truth and Reconciliation Commission as extra judicial institutions ... "

35 84. That based on the General Description of ACT No. 27 of 2004, the truth and Reconciliation Commission (TRC) was extra judicial institutions; 85. That based on Salim's Ninth Collegiate: English-English Dictionary, Dra. Salim, MA, Modern English Press, first edition, January 2000, pp. 531, (proof of P-19) extra judicial means outside of court or law. The term extra judicial powers in legal literature is often understood as well with the use of dispute resolution mechanisms through institutions such as mediation, arbitration, or better known as Alternative Dispute Resolution (ADR). In the context of the TRC, then extra judicial can be understood as the resolution of cases of human rights violations outside the mechanism of the Court. 86. That based on understanding of the TRC as extra judicial institutions mentioned above, then the TRC was not intended as a substitute for the courts (the Court of human rights) in the resolution of cases of human rights violations. Rather it is meant as a complement (complementary) from settlement through the mechanism of the Court. Because, the TRC did not ensure criminal liability on an individual basis, but seek and find the truth in all cases the common patterns of human rights violations which the weight that ever happened (in a certain period of time), and provide policy recommendations to restore democracy to the Government; 87. The principle that the TRC as a complement (complement) has developed internationally, and re-affirmed in the principle of the protection of human rights through Principle 8 of The Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity concerning Definition of the Commission's Terms of Reference which reads as follows: To • avoid conflicts of jurisdiction, the Commission's Terms of Reference must be clearly defined and must be consistent with the principle that Commissions of inquiry are not intended to act the US substitutes for the civil, administrative or criminal courts. In particular, criminal courts alone have jurisdiction to establish individual criminal responsibility, with a view of the US appropriate to passing judgement and imposing a sentence;

36 88. The assertion that the TRC is a complement and not replace the judicial process is also expressed in Principle 23 point (1) Brussels Principles against Impunity and for International Justice (March 2002), (proof of P-20), as follows: Non-judicial commissions of inquiry (such as "truth and reconciliation" commissions) and judicial procedures, far from excluding each other, are mutually complementary in the fight against impunity and for international justice. The constitution and activity of these commissions cannot, however, replace judicial procedures. 89 that according to the opinion of Prof. William a. Schabas, a member of the country's truth and Reconciliation Commission of Sierra Leone, (proof of P-21) that: "The TRC does not provide the forum with a perpetrator to escape procecution ... The TRC counts on voluntary testimony from perpetrators, including the "big fish", and it has already found considerable willingness from those involved to came forward and talk about what they have done. " (Interview Human Rights Featured by Prof. William a. Schabas International, TRC Commissioner of Sierra Leone, "the TRC Does Not Provide a Forum to Escape Procecution." http://www.hrdc.net/sahrdc/hrfchr59/Issue5/URimpunity.htm) 90. That according to the expert opinion of international law Prof. Aryeh Neier, the former Chairman of the Human Rights Watch that "Truth Commissions can exist side by side with u.s. prosecutions, the case in Argentina until another president, President Menem, pardoned those who had been convicted by the courts in Argentina and also issued pardons to those who were still facing trial". 91. because of the complementary nature, then the Act No. 27 of 2004 should not close the possibility to get justice through the courts; 92. That Article 44 of ACT No. 27 of 2004 positioning TRC as an institution similar to that of the courts, and then this Court may replace the TRC; 93. That Article 44 of ACT No. 27 of 2004 have been contrary to Article 28D paragraph (1) of the Constitution which States "everyone has the right to


37 recognition, guarantees, protection and legal certainty of fair and equal treatment before the law ". 94. That every person is entitled to a legal settlement through the judicial process fair and impartial; 95. Warranties of access to justice is a form of recognition, guarantees the protection of the law, and justice (the right to access to justice). As a result, the constitutional rights of the Appellant have been broken; 96. Article 44 of the TRC ACT That the positioning of the TRC as an institution with the same Court has shut down access for everyone to get a settlement through the judicial process; 97. Thus Article 44 of the TRC ACT contrary to Article 28D paragraph (1) of the Constitution. Therefore, the constitutional rights of the APPLICANT as either individual victims of human rights violations which became the subject of a Bill is examined as well as the institutions that represent the interests of the victim has been broken; 2. Article 44 UUKKR Removes the obligation of the State to prosecute and Punish perpetrators of 98. That Article 28I paragraph (4) of the Constitution specifies that: "protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State, especially the Government." 99. That the "protection and enforcement" (to protect) are regulated in article 28I paragraph (4) of the Constitution contains the meaning that the State is obligated to provide legal mechanisms that can meet the right to justice, especially the rights of victims of human rights violations; 100. That in order to ensure the right to get justice, then the State has an obligation to prosecute perpetrators of human rights violations to justice. It is the duty of the constitutional and international obligations are not interchangeable with political interests; 101. That examination of the events of the human rights violations that are heavy through the TRC does not mean the obligation of the State to punish the perpetrators of violations of human rights be lost;

38 102. That the arrangements in article 44 of the TRC ACT which does not allow more examination in Court of human rights Ad Hoc when such events have been resolved through the TRC, has removed the obligation of the State in prosecuting perpetrators of human rights violations are severe, as provided for in international law, both contained in practice (Sometimes International Law) as well as international treaties (International Resort); 103. That Article 44 of the TRC ACT was contrary to Article 28I paragraph (4) of the Constitution. Therefore, the constitutional rights of the APPLICANT as either individual victims of human rights violations which became the subject of a Bill is examined as well as the institutions that represent the interests of the victim has been broken; IV. 3. Article 1 paragraph (9) of the TRC ACT is contrary to the Constitution, namely Article 28D paragraph (1) and 28I paragraph (5) of the CONSTITUTION 1945 104. That amnesty in the TRC ACT is meant to be given to perpetrators of human rights violations which the weight (gross violations of human rights); 105. That article 1 paragraph (9) of the TRC ACT explains the notion of amnesty in the TRC ACT is as follows: "Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives." 1. The amnesty to perpetrators of human rights Palanggaran that the weight is not consistent with the implementation of human rights As protected by the CONSTITUTION of 1945; 106. That Article 28D paragraph (1) of the Constitution states: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law." 107. That Article 28I paragraph (5) of the Constitution states: "to uphold and protect human rights in accordance with the principles of a democratic State of law, then the implementation of human rights is guaranteed, set up, and poured in laws-an invitation."

39 108. That the provisions of both article the Constitution indicates that the Constitution guaranteed the implementation of human rights in accordance with the principles of a democratic State; 109. as a democratic and civilized country, then the Constitution also recognizes the principle of law that has been recognized worldwide that the amnesty could not be awarded against the violation of human rights. If any provision contrary to the principle, then that provision is also opposed to the implementation of human rights and the guarantee of legal protection as guaranteed top Constitution; 2. The object of the TRC ACT is a violation of human rights that International Crime is heavy. 110. That Furthermore, according to the TRC ACT, which became the object of a truth and Reconciliation Commission is a violation of human rights that the weight as stated in the article 1 paragraph (3) of the TRC ACT, namely: "truth and Reconciliation Commission which is hereinafter referred to as the Commission, is an independent agency formed to express the truth over human rights abuses and implement reconciliation." 111. then article 1 paragraph (4) explains that: "the human rights violations that weight is a violation of human rights as stipulated in the law number 26 of 2000 on Human Rights Courts." 112. The human rights violations referred to above weight refers to the weight of the offences as set forth in clauses in law No. 26 of 2000: article 7 of LAW No. 26 of 2000 on Human Rights Court: violations of human rights which include: a. the weight of the crime of genocide; b. crimes against humanity. Article 8 of LAW No. 26 of 2000 on Human Rights Court: crimes of genocide as referred to in article 7 letter a is any acts committed with intent to destroy or


40 destroy all or part of a group of Nations, races, ethnic groups, religious groups, by means of: a. killing members of the Group; b. result in physical or mental suffering that weighs against the members of the Group; c. create the conditions of life of groups which would result in the destruction of the physical good whole or in part; d. imposing measures aimed at preventing births within the Group; or e. forcibly move the children from specific groups to other groups. Article 9 of law No. 26 of 2000 on Human Rights Court: crimes against humanity as referred to in article 7 letter b is one of the acts committed as part of a widespread or systematic attack he knew that such attacks are aimed directly against the civilian population, such as: a. murder; b. extermination; c. enslavement; d. expulsion or removal of residents forcibly; e. deprivation of freedom or deprivation of physical liberty in violation of arbitrary other (principles) of the staple provisions of international law; f. torture; g. rape, sexual slavery, forced prostitution, coercion, pregnancy pemandulan or forced sterilization or other forms of sexual violence to other equivalent; h. the persecution of a particular group or association is based on the equation of political savvy, race, nationality, ethnic, cultural, religious, gender or other reasons that have been universally recognized as banned according to international law;

41 i. removing people by force; or j. crime of apartheid. 113. in accordance with the explanation That article 9 of law No. 26 of 2000, the explanation regarding the violations of human rights that the weight of it in line with the clauses concerning the jurisdiction of the International Criminal Court (ICC) in The Rome Statute of the International Criminal Court, where the International Criminal Court (ICC) admitted that the crime was "the most serious crimes in the international community as a whole" or "the most serious crimes of concern to the international community as a whole" , includes the crime of genocide, crimes against humanity, war crimes and the crime of aggression; 114. That violations of human rights, namely the genocide and crimes against humanity, has been recognized by the whole world as an international crime and the State has the obligation to prosecute and punish the perpetrators of such crimes; 115. That the human rights abuses that their weight, especially genocide and torture, have also been recognized as jus cogens or peremptory norms whereby perpetrators of crime are the hostis humani generis (enemies of all mankind) and prosecution against culprits is erga omnes obligatio (obligation of all humanity); 116. the recognition That human rights violations, the TRC ACT, referred to as international crimes has been recognized and developed since long time, as set forth in the Charter of the international military tribunal or Nuremberg Charter of the International Military Tribunal at Nuremberg (1945), the Charter of the International Military Tribunal for the far East or the Charter of the International Military Tribunal for the Far East (1946), the Statute of the International Criminal Tribunal for the former Yugoslavia or the Statute of the International Criminal Tribunal for the Former Yugoslavia (1993) , The Statute of the International Criminal Court for Rwanda, or the International Criminal Tribunal for Rwanda (1994), and the Statute of Rome or the Statute of the International Criminal Court (1998);

42 3. Amnesty for the perpetrators of human rights violations that are Heavily at odds with international law. 117. That has been strongly recognized: Amnesty for perpetrators of human rights violations that are heavily at odds with international law; 118. However, article 1 paragraph (9) of ACT No. 27 of 2004 thus explained that the amnesty granted to perpetrators of human rights violations are heavy so this article is contrary to the principle of law that the international community has recognized Indonesia which includes as a part in the community; 119. The United Nations consistently has repeatedly insisted that amnesty cannot be accorded to perpetrators of human rights violations are heavy; 120. In 1992, the General Assembly expressly refused amnesty for human rights abuses that weight (as mentioned ACT Number 27 in 2004) and adopted the Declaration on the Protection of All Persons from Enforced Disappearance, which States that for those responsible for these crimes "shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction." (Proof of P-22); 121. UNITED NATIONS Commission on human rights in its General Comment 20 article 7 [the Covenant on Civil and Political Rights] (proof of P-23) stated that "that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts "(General Comment 20 concerning Article 7, replaces General Comment 7 concerning the Prohibition of Torture and Cruel Treatment or Punishment); 122. The report of the Secretary-general regarding the establishment of the Special Court for Sierra Leone S/200/915), October 4, 2000 in paragraphs 22-24 (proof of P-24) States the following: o While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict, 4 the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes ,


43 such as genocide, crimes against humanity or other serious violations of international humanitarian law. o At the time of the signature of the Lomé Peace Agreement, the Special Representative of the Secretary-General for Sierra Leone was instructed to append to his signature on behalf of the United Nations a disclaimer to the effect that the amnesty provision contained in article IX of the Agreement ("absolute and free pardon") shall not apply to international crimes of genocide , crimes against humanity, war crimes and other serious violations of international humanitarian law. This reservation is recalled by the Security Council in a preambular paragraph of resolution 1315 (2000). o In the negotiations on the Statute of the Special Court, the Government of Sierra Leone concurred with the position of the United Nations and agreed to the inclusion of an amnesty clause which would read us follows: "An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution." With the denial of legal effect to the amnesty granted at Lomé, to the extents of its illegality under international law, the obstacle to the determination of a beginning date of the temporal jurisdiction of the Court within the pre-Lomé period has been removed; 123. The report of the Secretary-general on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, (S/2004/616), August 23, 2004, (proof of P-25) States the following things:-United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights (Paragraph 10); -Carefully crafted amnesties can help in the return and reintegration of both groups and should be encouraged, although, as noted above, these can never be ' permitted explosives to excuse genocide, war crimes, crimes against humanity or gross violations of human rights (Paragraph 32);

44-Reject any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes, ensure that no such amnesty previously granted is a bar to prosecution before any United Nations-created or assisted court (Paragraph 64 point [c]). 124. Even in the Independent Study on Best Practices, Including Recommendations, to Assist States In Strengthening Their Domestic Capacity to Combat All Aspects Of Impunity (E/CN. 4/2004/88), 27 February 2004 (proof of P-26) at Paragraph 32 stated as follows: As developments in Argentina, Sierra Leone and other countries suggest there are prudential as well as principled reasons for States to resist demands for amnesties that violate their international obligations , even if conditions do not permit them to undertake prosecutions immediately. In Paragraphs 28 to 32, Paragraphs of this report also contains a list of the sources of law including court rulings that strengthened the position of the prohibition against amnesty for human rights violations. These cases demonstrate that Community law in different parts of the world have been practicing the principle of opposing amnesty for perpetrators of human rights violations are heavy; 125. A list of the sources of the above law then strengthened again and is furnished in the Report of the Independent Expert to Update the Set of Principles to Combat Impunity (E/CN. 4/2005/102), 18 February 2005, Paragraphs 50-51. (Proof of P-27); 126. In addition the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (E/CN. 4/2005/102/Add. 1) expressly provide a guideline for countries including judicial bodies in determining his attitude regarding impunity. The 24 principles regarding the Restrictions and Other Measures Relating to Amnesty States the following: Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: 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 or 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 offenses 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. The resolution of the UN Commission on human rights (Resolution 2004/72,: Impunity, E/CN. 4/RES/2004/72), April 21, 2004, (proof of P-28) in Point 3 also confirms the following: ... amnesties should not be granted to those who commit violations of human 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, a ban on Amnesty against violations of human rights that the weight is also confirmed in the jurisprudence of the various courts in the world; 129. In the case in International Court for Yugoslavia (ICTY), the ruling of the Appeals Tribunal the case of Prosecutor v. Furundzija, 10 December 1998, argued that domestic Amnesty covering crimes, such as torture, which have the status of jus cogens would not have gained international recognition in legal. (Paragraph 155) (Proof of P-29). Based on the terms that the crime of torture that has been getting Amnesty still on trial by the International Tribunal; 130. The jurisprudence of the Court of human rights the Inter-American consistently asserts his prohibits amnesty for human rights violations, among others, the weight in the case of Barios Altos (Barios Altos case, IACHR, vol. 75, Series C), March 14, 2001 2000 (proof of P-30) at Point 4 ruling, the Court stated that the amnesty "is contrary to the American human rights Convention, as a result of not having legal effect" (to find that amnesty laws No. 26479 and no. 26492 are incompatible with the american convention on human rights and , consequently, lack legal effect). In one of the reasoning of the Tribunal Judges the case of Barrios Altos that States the following: This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, an extrajudicial, summary or arbitrary execution and forced disappearance , all of them prohibited because they violate non-derogable rights recognized by international human rights law. (Paragraph 41) 131. The Court ruling which declared amnesty for the perpetrators of human rights violators that are forbidden and result in weight has no legal effect back in control by various court rulings, among others: Trujillo Oroza v. Bolivia (IACHR), Reparations, Judgement, 27 February 2002, Vol. 92, Serie C, paragraph 160; El Caracazo case v. Venezuela (IACHR), Reparations, Judgement, 29 August 2002, vol. 95, Serie C, paragraph 119;

47 Myrna Mack Chang v. Guatemala (IACHR), case, Judgement, November 25, 2003, vol. 101, Serie C, paragraph 276. (Proof of P-31 a, b, c) 132. In addition to the above sources of law, the principle of Universal Jurisdiction of Princeton on the principle 7 (1) (proof of P-32) States that: "Amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law the U.S. is specified in Principle in 2 (1)." 133. Not only that, Indonesia also bound by international conventions that have been ratified that contains a ban on amnesty for the perpetrators of human rights violations. Indonesia has ratified the Convention Against Torture through law No. 5 of 1998. The Convention Against Torture provides liability to participating countries to punish perpetrators of torture, where the criminal offence of torture in part violations of human rights which referred to the weight of the law No. 27 2004 jo law No. 26 of 2000. 134. The genocide, forced disappearances and acts of torture have been recognized as jus cogens or peremptory norms. Therefore, for the perpetrators of the violations of the universal jurisdiction applicable weight. For example on the verdict the case of Augusto Pinochet in Spain and the United Kingdom confirmed the enforceability of universal jurisdiction for acts of torture. Jus cogens norm melekatnya with this then the culprit declared hostis humani generis or as the enemy of all mankind, as well as being the obligation of the State to conduct a prosecution (obligatio erga omnes); 135. That right granting amnesty is the authority of the President, but based on the principles of law, the amnesty cannot be given to given to the perpetrators of human rights violations are heavy; 136. Human rights violations that have the highest weight in the form of a crime. That's why there is a legal principle that prohibits amnesty for perpetrators of human rights violations. Therefore, the presence of the words "heavy" in the formulation of article 1 paragraph (9): "Amnesty is forgiveness given by the President to the perpetrators of human rights violations which the weight having regard to the considerations of 48 Representatives" is contrary to the principle of law and therefore do not have the force of law; 4. Article 1 paragraph (9) of the TRC ACT contrary to Article 28D paragraph (1) and article 28I paragraph (5) of the CONSTITUTION 1945 137. Therefore, Article 28D paragraph (1) of the Constitution provides recognition, guarantees, protection and legal certainty and fair Article 28I paragraph (5) States that to uphold and protect human rights in accordance with the principles of a democratic State of law, the implementation of the human rights guaranteed by the Act, then the ACT Number 27 in 2004 should be consistent with the guarantees of the Constitution; 138. In line with the recognition of the principles of human rights by the State Statutes through Indonesia ASSEMBLY No. XVII of 1998 on human rights, the jurisprudence of the Constitutional Court, law No. 26 of 2000 on Human Rights Court, and Act No. 39 of 1999 on human rights as referred to above, recognition, guarantees, protection and legal certainty and guarantee the implementation of human rights as stipulated by the Constitution also includes the recognition of the principles of international human rights; 139. with the inclusion of a rule that violated the principles of law, in particular of the TRC ACT in article 1 paragraph (9), then the constitutional rights of the applicant to obtain recognition, guarantees, protection and legal certainty are fair, as well as collateral for the enforcement and protection of human rights in accordance with the principles of a democratic State of law has been broken; 140. Because the definition of amnesty in article 1 paragraph (9) UUKKR not in accordance with the recognized principles of civilized communities in Indonesia and the world community is included as part of the community of civilized nations, then amnesty for perpetrators of severe human rights abuses contrary to the Constitution, particularly Article 28D paragraph (1) and section 28 subsection (5) of the CONSTITUTION of 1945; 141. Thus, the constitutional rights of the Applicant as either individual victims of human rights violations which became the subject of legislation that


49 to be tested as well as the institutions that represent the interests of the victim has been broken; 142. Based on the above description-description, the Applicant please to the Tribunal of judges of the Constitutional Court of the Republic of Indonesia to check and Test Material ACT Application to disconnect the TRC against the Constitution, as follows: 1. Accept and grant the entire application testing is the ACT of the Applicant; 2. Declare the material charge article 27 of ACT No. 27 of 2004 about the truth and Reconciliation Commission, contrary to the Constitution, especially article 27 paragraph (1) of article 28D, paragraph (1), article 28I paragraph (2) of the CONSTITUTION of 1945; 3. Declare the material charge Clause 44 of ACT No. 27 of 2004 about the truth and Reconciliation Commission contradicts the Constitution, especially Section 28D subsection (1) and article 28I paragraph (4) of the CONSTITUTION of 1945; 4. Declare the material charge article 1 paragraph (9) of ACT No. 27 of 2004 about the truth and Reconciliation Commission contradicts the Constitution, especially Section 28D subsection (1) and article 28I paragraph (5) of the CONSTITUTION of 1945; 5. the Stated material charges article 27, article 44 and article 1 paragraph (9) of ACT No. 27 of 2004 about the truth and Reconciliation Commission does not have the force of law binding. Considering that to corroborate evidence if possible, the Applicant has submitted evidence of the attached letter/written in the petition and the evidence have been emblazoned with the seal enough, and given a proof of P-1 to P with evidence – 36, namely: 1. Proof of P-1: copy law No. 27 of 2004 about the truth and Reconciliation Commission; 2. Evidence of the P-2. a: copy the articles of ELSAM; P-2. b: copy and Change the articles of Contrast; P-2 c: copy the basic Budget Solidarity Nusa Bangsa (SNB);

50 P-2. d.: copy Certificate Establishment of participatory community initiatives for Equitable Transition (IMPARSIAL); 3. Proof of P-3. A1: Copy the basic Budget LPKP 65. Evidence of the P-3. A2: the loose Description of letter No. SK 6911/INREHAB/B-2/IX/1978 on 27 September 1978 on behalf of Soenarno Tomo Hardjono, Chairman of Research Institute Victims 65 Event (LPKP 65). Evidence of the P-3. B1: Copy the changes to the basic Budget LPKP-KROB. Evidence of the P-3. B2: Copy Status Change Warrants Detention No. SPRINTBAS/766/TPD/XII/1977 20 December 19777 Sumaun Utomo, on behalf of the Chairman of the institution of the rehabilitation Regime Victims Struggle ORBA (LPR-KROB). 4. Proof of P-4 a: Letter Komnas HAM Call as witnesses dated December 1, 2005, Rahardjo Waluyo Djati for; Proof of P-4b1: Copy the daily Republika Newspaper Clipping dated 11 September 1998, "Pius Testify to the PusPom, to complete the File" proof of P-4 b2: Copy the daily Media Indonesia Newspaper Clipping dated 8 September 1998 "Pius Planning Visit Cijantung". 5. Proof of P-5: Decision Letter No. SKEP-55/KOPKAM/XII/1979 at about 2045 Prisoners return G. 30. S/PKI, The "B" to the Society dated 5 December 1979 and Cf. the list of attachments, Pangkopkamtib Kepustusan No. SKEP-55/KOPKAM/XII/1979 on behalf of Rajendra Tjasman Prawiro. 6. Proof of P-6: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, C.H.R. Res. 2005/35, U.N. Doc. E/CN. 4/2005/l. 10/Add. 11; 7. Proof of P-7: Promotion and Protection of Human Rights: Impunity, the Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher, 51 Addendum Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, [hereinafter Updated Set of Principles to Combat Impunity], E/CN. 4/2005/102/Add. 1, 8 February 2005; 8. Proof of P-8: the Ordinance of the people's Consultative Assembly of the Republic of Indonesia Number XVI/MPR/1998 on human rights; 9. Proof of P-9: laws of the Republic of Indonesia Number 39 of 1999 on human rights 10. Proof of P-10: laws of the Republic of Indonesia number 26 of 2000 on Human Rights Court 11. Proof of P-11: the ruling of the Constitutional Court concerning Article 60 of the letters g law No. 12 of 2003 on general elections of members of the House of representatives, the regional representative Council, Representatives of the Regional Representatives of the provinces and regions of Kabupaten/Kota (Docket Number 011-017/PUU-I/2003, 24 February 2004) 12. Proof of P-12: Constitutional Court Verdict Number 065/PUU-II/2004 concerning the test of the law of the Republic of Indonesia number 26 of 2000 on Human Rights Court, dated 03 March 2005; 13. Proof of P-13. a: Republic of Indonesia law No. 12 of 2005 about the Endorsement of the International Covenant on Civil And Political Rights (International Covenant on Civil and political rights); Proof of P-13 b.: International Covenant on Civil and Political Rights (ICCPR); 2. Evidence of the P-14. a: Republic of Indonesia law No. 5 of 1998 on Ratification the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture and Other degrading treatment or Punishment that is cruel, Inhuman or Degrading human dignity); Evidence of the P-14. b: Convention against Torture and other Cruel, Inhuman or


Degrading Treatment or Punishment 52; 15. Evidence of the P-15. a: Indonesia Republic Act Number 29 of 1999 regarding the passage of the International Convention on the Elimination of All Forms of Racial Discrimination (International Convention on the Elimination of all forms of racial discrimination of 1965); Evidence of the P-15. b: Convention on the Elimination of All Forms of Racial Discrimination; 16. Proof of P-16. a presidential decree of the Republic of Indonesia: Number 36 in 1990 about the endorsement of the Convention on the Rights of the Child (Convention on the rights of the child); Proof of P-16. b: Convention on the Rights of the Child; 17. Proof of P-17. a: The Factory at Chorzow, Jurisdiction, Permanent Court of International Justice, 26 July 1927, Judgement No. 8, 1927, Publications of the Permanent Court of International Justice, Series a. No. 9; Proof of P-17. b.: The Factory at Chorzów, Merits, Permanent Court of International Justice, September 13, 1928, Judgement No. 13, 1928, Publications of the Permanent Court of International Justice, Series a. No. 1; 18. Evidence of the P-18: The Administration of Justice and the Human Rights of Detainees: The Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), E/CN. 4/Sub 2/1997/20, (the Joinet Principles); 19. Proof of P-19: Salim's Ninth Collegiate: English-English Dictionary, Drs. Peter Salim, MA, Modern English Press, first edition, January 2000, pages 531; 20. Proof of P-20: Copy Brussels Principles against Impunity and for International Justice, adopted by the Brussels Group for International Justice, following on from the colloquium "The Fight against Impunity: Stakes and Perspectives" (Brussels, 11-13 March 2002); 21. Proof of P – 9: Copy Impunity, Truth Commissions: Peddling Impunity?, Interview of Professor William a. Schabas (International 53, TRC Commissioner of Sierra Leone): "the TRC Does Not Provide a Forum to Escape Prosecution," Human Rights Features-Volume 6, Issue 5, 14-April 20, 2003 22. Evidence P – 22: Photo Copy of Declaration on the Protection of All Persons from Enforced Disappearance, of General Assembly Resolution 47/133 of 18 December 1992 23. Evidence P – 11: Copy of General Comment No. 8: Replaces General Comment 7 Concerning the Prohibition of Torture and Cruel Treatment or Punishment (art. 7): 10/03/92, CCPR General Comment No. 20 (General Comments) 24. Evidence P – 24: Copy Report of the Secretary General on The Esthablishment of a Special Court for Sierra Leone S/200/915, 4 October 2000 25. Evidence P – 25: Copy The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General (S/2004/616), 23 August 2004 26. Evidence P – 26: Copy Promotion and Protection of Human Rights: Impunity, Independent Study on Best Practices, Including Recommendations, to Assist States In Strengthening Their Domestic Capacity to Combat All Aspects Of Impunity, By Professor Diane Orentlicher, E/CN. 4/2004/88, 27 February 2004 27. Evidence P – 27: Photo Copy of the Promotion and Protection of Human Rights: Impunity, the Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher, E/CN. 4/2005/102, 18 February 2005 28. Evidence P – 28: Photo Copy of Impunity: the Commission on Human Rights Resolution 2004/72: (E/CN. 4/RES/2004/72), April 21, 2004 29. Evidence P – 29: Photo Copy of Prosecutor v. Anto Furundzija, Judgement, Case No: IT-95-17/1-T, date: 10 December 1998 30. Evidence P – 30: Photo Copy of the Inter American Court of Human Rights, Barrios Altos case (Chumbipuma Aguirre et al versus Peru, AIACHR, vol. 75, Series C, 14 March 2001 54 31. Evidence P – 31a: Trujillo Oroza Copy v. Bolivia (IACHR), Reparations, Judgement, 27 February 2002, vol. 92, Serie C, paragraphs 160 Proof P – 31b: El Caracazo Case v. Venezuela (IACHR), Reparations , Judgement, 29 August 2002, vol. 95, Serie C, Paragraph 11 proof of P – 31c: Myrna Mack Chang Photo Copy v. Guatemala (IACHR) Case, Judgement of 25 November 2003, vol. 101, Serie C, paragraphs 276 32. Proof of P-32: Copy the Princeton Principles on Universal Jurisdiction 33. P-33 a proof: a Photo Copy of the Commentary on the Bill on the Truth and Reconciliation Commission of Indonesia, February 3, 2000; by Douglass Cassel, Priscilla Hayner and Paul Van Zyl. P-33 b evidence: Copy Comments against the truth and Reconciliation Commission BILL in Indonesia. (Translation); 34. The evidence of the P-34 a: Copy Set the Challenges Facing an Indonesian Truth Commission, March 8, 2000; by Douglass Cassel, Priscilla Hayner and Paul Van Zy; Buktri P-34 b: Copy some thoughts About the establishment of the truth and Reconciliation Commission in Indonesia (translation); 35. The P-35 a Proof: a Photo Copy of a Comment by the International Center for Transitional Justice on the Bill Establishingh a truth and Reconcuiliation Commission in Indonesia; P-35 b evidence: Copy Comments by CTJ (International Center for Transitional Justice) in the law the establishment of the truth and Reconciliation Commission in Indonesia; 36. The evidence of the P-36a: Copy weigh up the establishment of a truth and Reconciliation Commission, compass Saturday 4 March 2000; Proof of P-36b: Copy the urgency of immediate establishment of a truth and Reconciliation Commission, the spotlight, compass, Monday 10 June 2002 by Satya Arinanto;


55 considering that in addition to providing a description of oral dipersidangan, also gives the authorities a written description, dated May 23, 2006 at the trial Tuesday 23 May 2006, received at the Court Clerk on Tuesday 23 May 2006, substantially explain as follows: i. GENERAL human rights (human rights) are the basic rights that are inherent to the human self is not supernatural, which is universal and eternal. Because of that human rights must be protected, respected, upheld and maintained, should not be ignored, reduced or taken away by anyone whether per-person as individuals or by the Government; Human rights abuses are heavy (gross violations of human rights) which include crimes against humanity and genocide (crimes again humanity, genocide), which occurred in the period before the enactment of law number 26 of 2000 on Human Rights Court should be traced back to reveal the truth and uphold justice and form a culture valuing human rights so that reconciliation can be realized in order to achieve unity and national unity. The disclosure of the truth also aims for the benefit of the victim and/or the families of the victims who was the heir to obtain compensation, restitution, and/or rehabilitation. In addition to the above mandate, the establishment of the law on the truth and Reconciliation Commission is also based on the people's Consultative Assembly Ordinance Number V/MPR/2000 concerning the establishment of unity and national unity are commissioned to establish a truth and Reconciliation Commission as a National institution the amount of extra judicial members and the message set out in the Act. To search and reveal violations of human rights, need to be made concrete steps by establishing truth and Reconciliation Commission in accordance with Article 47 mandated by law number 26 of 2000 on Human Rights Court, which stated: paragraph (1) "the human rights violations that occurred before the enactment of the weight of this Act does not cover possible settlement done by the truth and Reconciliation Commission"; Subsection (2) "the truth and Reconciliation Commission 4 56 as mentioned in paragraph (1) was established by law". In addition to the duty to uphold righteousness by revealing human rights abuses that occurred during the heavy before the enactment of law number 26 of 2000 on Human Rights Court, the Commission is also implementing a Reconciliation in the perspective of common interests as a nation. The steps taken was the disclosure of the truth, the confession of error, the granting of pardon, peace, the rule of law, Amnesty, rehabilitation, or other alternative to uphold unity and the unity of the nation by remaining attentive to the sense of Justice in society. The formation of the law on the truth and Reconciliation Commission, among others, are based on the following considerations: 1. The existence of human rights violations which the weight (gross violations of human rights) which include crimes against humanity and genocide (crimes againt humanity, genocide) that occur in the time before the enactment of law number 26 of 2000 on Human Rights Court, which to date have not accounted for thoroughly , so that the victim or the victim's family is his heir was still not get certainty about the background of the occurrence of violations of human rights against the heavy casualties. In addition to haven't gotten compensation, restitution, and/or rehabilitation over the suffering they have experienced, the waiver upon this responsibility has led to dissatisfaction, cynicism, apatisme, and distrust to the institution of the law because the State considered giving exemption from punishment to the perpetrators; 2. overall Resolution against human rights abuses that weight (gross violations of human rights) that occur in the time before the enactment of law number 26 of 2000 on Human Rights Court, it is very urgent and urged to immediately done because most societal attitudes still tend to be cynical, apathetic and dissatisfied over how the handling of the Government on human rights abuses. In addition, the political tension factor that occurs in the unitary State of the Republic of Indonesia also should not be ignored and allowed to continue to drag on without any certainty of settlement is 57; 3. In ungkapkannya the truth about human rights violations that occurred during the heavy before the enactment of law number 26 of 2000 on Human Rights Court, then through the truth and Reconciliation Commission (The truth and reconsiliation commission) are expected to be realized reconciliation in order to uphold the unity and national unity; Act No. 27 of 2004 about the truth and Reconciliation Commission substantially different to the provisions set forth in Act 26 of 2000 on Human Rights Court. This legislation does not set about the process of prosecution law (due process of law), but is more focused on search and disclosure of the truth, Amnesty considerations, the granting of compensation, restitution and/or rehabilitation to victims or families of the victims that are the heirs, so that hopefully will pave the way for the process of reconciliation and national unity. Based on the facts found by the truth and Reconciliation Commission (The truth and reconsiliation commission), the party that should be held responsible for violations of human rights that occurred during the heavy before the enactment of law number 26 of 2000 on Human Rights Court should be identified. If the offender admits mistakes, acknowledge the truth of the facts, expressed regret over his actions, and is willing to apologise to the victim or the victim's family is his heir, then the perpetrators of violations of human rights that weight can apply for amnesty to the President; When the Amnesty petition reasoned and quite adequate for granted, the President may accept the application, and to the victim or the victim's family is his heir, should be given compensation, restitution and/or rehabilitation. If the petition for amnesty was rejected by then President of compensation, restitution and/or rehabilitation is not granted by the State, and the human rights violations that followed up their weight to be processed/completed based on the provisions of the Act 26 2000 Nombr about the Court of human rights.


58 In against the human rights violations that have been heavily reviewed and terminated by the truth and Reconciliation Commission, the Human Rights Tribunal then Adhoc (Ad Hoc HUMAN RIGHTS Courts) are no longer authorized to inspect, judge and break the human rights violations that the weight, unless a petition for amnesty was rejected by the President. And vice versa, against violations of human rights that the weight already examined, judged and decided by the courts of human rights Ad Hoc (Ad Hoc HUMAN RIGHTS Court) the truth and Reconciliation Commission is not authorized to deal with the resolution of the human rights violations that are heavy. Thus, the verdict of the truth and Reconciliation Commission or court decision Ad Hoc Human rights are final and binding (final and binding). Truth and Reconciliation Commission (The truth and reconsiliation commission), created based on principles of self-sustainability, the free and impartial, benefit, justice, honesty, openness, peace, and unity of the nation. In the future it is hoped the resolution of the human rights violations that weight (gross violations of human rights) which include crimes against humanity and genocide (crimes againt humanity, genocide) that happened in the past can be resolved outside the courts, in order to embody peace (reconciliation) fellow children of the nation in order to uphold the unity and national unity in the spirit of mutual understanding and pardon; II. The POSITION of the LAW (LEGAL STANDING) of the APPLICANT in accordance with the provisions of article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court, that the Applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions.

59 later in the explanation stated, that is a "constitutional rights" are the rights set forth in the Constitution of the Republic of Indonesia in 1945; Further based on the jurisprudence of the Constitutional Court of INDONESIA, understanding and limitation of losses arising from the constitutional enactment of legislation under article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court, must meet the five terms, namely: a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia in 1945; b. that the constitutional rights of those applicants deemed by the Applicant have been wronged by an act that was tested; c. Constitutional losses That the Claimant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition then postulated that a constitutional disadvantage will not or no longer occur. According to the Applicants in their petition that with the enactment of the provisions of article 1 paragraph (9), article 27 and article 44, Act No. 27 of 2004 about the truth and Reconciliation Commission, then the right and/or authority konstitusionalnya, and contrary to the provisions of article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2), subsection (4) and paragraph (5) of the Constitution of the Republic of Indonesia in 1945; Therefore, the unquestionable importance the Applicant does is just right as the party considers the rights and/or impaired by konstitusionalnya Authority Act No. 27 of 2004 about the truth and Reconciliation Commission. Also whether petitioners constitutional harm is the specific nature of the (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen, and whether there is a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested;

60 the Government contended that the activities of the Applicant either serves as an individual and as a body of private law that matter towards the promotion, protection and enforcement of law justice and human rights in Indonesia is running as it should be uninterrupted and without the slightest reduced rights and obligations upon the enactment of Act No. 27 of 2004 about the truth and Reconciliation Commission, so there is no specific relationship (specially) or causal relationship (causal verband) between Applicants with enforceability of the constitutionality of laws a quo; Then, if the Appellant felt aggrieved konstitusionalnya rights with the enactment of Act No. 27 of 2004 about the truth and Reconciliation Commission, then this needs to be called into question the constitutional rights of the Applicant which harmed?, does the applicant as an individual itself, non-governmental organizations (NGOs) engaged in the field of human rights, the victims of human rights violations that are heavy or most communities who care about human rights as the Applicant did not expressly clarify who actually harmed over the enforceability of the legislation a quo; The Government was therefore requested to the applicant through the Chairman of the Constitutional Court Judges Assembly/to legitimately prove first whether the applicant's right as a party right and/or authority konstitusionalnya harmed. The Government contended that there was no and/or has incurred losses for the rights and/or the applicant's constitutional authority over the enforceability of Act No. 27 of 2004 about the truth and Reconciliation Commission, as it was the seat of the law (legal standing) of the applicant in the application for this test did not meet the requirements as stated in Article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; Based on the description above, the Government requested the Chairman of the Constitutional Court Judges Assembly/wisely appeal the Applicant is unacceptable (niet ontvankelijk verklaard). However, if the Chairman of the Constitutional Court Judges Assembly/argued others, following the Government's explanation and argument presented about material testing


61 Act No. 27 of 2004 about the truth and Reconciliation Commission; III. Government Explanation Over the application for Testing Act No. 27 of 2004 about the truth and Reconciliation Commission. With respect to the presumption of the Applicants in their petition to the effect that some of the provisions of Act No. 27 of 2004 about the truth and Reconciliation Commission, namely: 1. the article 1 paragraph (9) "Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives"; 2. Article 27 "compensation and rehabilitation as mentioned in article 19 can be given in a petition for amnesty was granted"; Article 19 "Subkomisi compensation, restitution, and rehabilitation as in article 16 the letter b, give you legal considerations in awarding compensation, restitution, and/or rehabilitation to victims or families of the victims that are the heirs as a result of violations of human rights that article 16 weight" letter b "Subkomisi compensation, restitution, and rehabilitation and c" subkomisi Amnesty considerations "; 3. Article 44 "violations of human rights that the heavy has been disclosed and resolved by the Commission, the matter can not be submitted again to the Court of human rights ad hoc"; Contrary to article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2), subsection (4) and paragraph (5) of the Constitution of the Republic of Indonesia in 1945, as follows: article 27 paragraph (1) "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya": section 28D subsection (1) "everyone has the right to the recognition of the guarantee , protection and legal certainty of fair and equal treatment before the law ";

62 Article 28I paragraph (2): "everyone has the right to be free from discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment; Subsection (4) "protection, promotion, enforcement and the fulfilment of human rights is the responsibility of the State, especially the Government '; Paragraph (5) "to uphold and protect human rights in accordance with the principles of a democratic State of law, then the implementation of human rights is guaranteed, set up, and poured in legislation '; With respect to the assumptions/rationale the Applicant stating that the above provisions may give rise to the following things: 1. The Claimant in his petition contended that the provisions contained in article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission, will give the injustice to the victims of human rights violations, because the offender has made the victims suffer can get Amnesty otherwise, if the offender does not get Amnesty then victims ' rights over the recovery that is in the form of compensation, restitution and rehabilitation could not be obtained and the victim must traverse another attempt; Thus, these provisions have created a position of balance between victims and perpetrators of human rights violations, because against the victims given the requirements that enough weight to get the rights to the restoration (right to reparation) in the form of compensation, restitution and rehabilitation that is the rights attached to a victim depends on whether the culprit was found or not and whether the culprit was given amnesty or not. According to the applicant's entitlement to recovery (right to reparation) is the obligation of the State. Against assumption/petitioners reason above, the Government can explain things as follows: a. that the establishment of the truth and Reconciliation Commission (The truth and reconsiliation commission) is a collective endeavor to uphold "islah values" of the nation of Indonesia in the framework of protection and upholding of 63 human rights, which in the past (prior to the enactment of law number 26 of 2000 on Human Rights Court) events severe human rights abuses (gross violations of human rights) are often dinisbikan even considered no , even without question and investigated who the perpetrators are, who their victims and how the number of victims. b. that one very important essence in resolving human rights violations which occurred in heavy past is between perpetrator and victim pardon (article 29 of Act No. 27 of 2004 about the Truth and Reonsiliasi Commission °), for the realization of national reconciliation in order to solidify unity and national unity as mandated by Statute the MPR-RI No. V/MPR/2000 concerning the establishment of unity and national unity). To the fore are expected not to happen and happen again, like the proverbial truth and Reconciliation Commission (The truth and reconsiliation commission) Argentina who referred to it as "Nunca Ma'as" (not to be repeated again), in South Africa used the term "to forgive but not to forget", or by innuendo that tickles "Tu paux marcher sur I'Afrique, main rnarche n'est pas sur I'Africain" (you could run above the land of Africa, but never goes above the Africans). c. that if the offender admits his error on a voluntary basis, admit the truth of the facts, expressed regret over his actions, and is willing to apologise to the victim or the victim's family is his heir, but the victims or families of the victims that are the heirs not willing to forgive, then the truth and Reconciliation Commission will break the granting of amnesty to the President recommendations independently and objectively, it is aimed so that the resolution of the human rights violations do not continue to drag on the weight which in turn can impede the achievement of the goal of national reconciliation; d. That when perpetrators of human rights violations that the weight is not willing to admit his error, and does not admit the truth of the facts and are not willing to repent of his actions, then the perpetrators


64 the human rights violations that the weight loss of the right to obtain amnesty from the President and cases of violations of human rights that the weight can be presented to the ad hoc HUMAN RIGHTS court based on the provisions of article 43 paragraph (1) of law number 26 of 2000 on Human Rights Court. e. the Government argued That the provisions of article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission that governs the granting of compensation, restitution and/or rehabilitation to victims or families of the victims that are the heirs as a result of human rights violations that are heavy in the petition was granted amnesty by the President, is the Equalization of the position between the perpetrators and victims of human rights violations are heavy , which in turn can create a sense of Justice da! am community (vide Article 28 and article 29 of Act No. 27 of 2004 about the truth and Reconciliation Commission; f. in case of rejection of the petition that the amnesty by the President, this is not the end of the struggle to uphold justice for infringement of human rights, which occurred in the past, especially for the victim or his heir. Thus with the Amnesty petition turned open spaces and opportunities for victims or heirs to sue for the right to get compensation, restitution and rehabilitation to the State (vide Government Regulation No. 3 of 2002 on compensation, Restitution and rehabilitation of Victims against violations of human rights, as a follow-up to the provisions of article 35 of law number 26 of 2000 on Human Rights Court; For that, it can be said that the amnesty was a right good intentioned offender (good faith, geode trow), who sincerely admit his error and apologized for his mistakes in the past, while the compensation, restitution and/or rehabilitation is the right of the victim or his heir to be supplied by the State; From the description above, the Government contends that Article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission, will not adversely affect the rights and/or constitutional authority 65 the Applicant, and not in conflict with article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2), subsection (4) and paragraph (5) of the Constitution of the Republic of Indonesia in 1945; 2. According to the Applicants in their petition contended the provisions of article 44 of the Act Number 27 in 2004 about the truth and Reconciliation Commission, has closed the possibility. victims of human rights violations that are heavy to get justice through the courts. The Applicant concludes that the truth and Reconciliation Commission has positioned the same as with the judiciary, and the truth and Reconciliation Commission can also replace the courts, when in truth and Reconciliation Commission is extra judicial institution that is intended as a complement (complementary) from settlement through the mechanism of the Court. So according to the Applicant it has closed access to every people (victims of human rights violations that weight) to get a resolution through the judicial process is fair and impartial. Thus the provisions of article 44 of the Act Number 27 in 2004 about the truth and Reconciliation Commission, which does not allow more examination in Court of human rights Ad hoc when such events have been resolved through the truth and Reconciliation Commission, has removed the obligation of the State in prosecuting the perpetrators of violations of human rights, as provided for in international law, both contained in practice (sometimes international law) as well as in international agreements (international resort). Against assumption/petitioners reason above, the Government can explain things as follows: a. that the establishment of the truth and Reconciliation Commission as a follow-up to the provisions of article 47 of law number 26 of 2000 on Human Rights Court, which States that the human rights violations that occurred before the enactment of the weight of the law the Court of HUMAN RIGHTS did not close the possibility of 66 settlement done by the truth and Reconciliation Commission; b. that the truth and Reconciliation Commission (The truth and reconsiliation commission) does not serve as a substitute (substitution) of the Court of human rights (in accordance with Act No. 26 of 2000 on Human Rights Courts), which does not control the process of prosecution law (due process of law), but only a set of simple disclosure of the truth; the granting of financial compensation, restitution, and/or rehabilitation to victims and granting amnesty to the perpetrators. Therefore the verdict of the truth and Reconciliation Commission is not a Judicial Administrative object state (article 9 paragraph (5) of Act No. 27 of 2004 about the truth and Reconciliation Commission); c. that the truth and Reconciliation Commission is an institution that supports the ad hoc nature of the certainty of law for violations of human rights that the weight (gross violations of human rights) that occurred prior to the enactment of law number 26 of 2000 on HUMAN RIGHTS Court, because it's truth and Reconciliation Commission is temporary and its existence is limited by time, so that by the time the time constraints that are available have been exhausted then against the human rights violations that occurred in the weight of the past is a law enforcement through the ad hoc HUMAN RIGHTS Court; d. that the establishment of the truth and Reconciliation Commission in various Countries has created a shift in the concept of Justice (concept of justice) in the settlement of criminal cases, i.e. on the basis of Justice of retribution/revenge (retributive justice/prosecutorial justice) towards justice in the form of truth and reconciliation that is restorative justice and leads to (restorative justice/community based justice) which stressed the importance of this aspect of healing (restorative) for those who suffered because of the crime; e. That lately the United Nations (UN) began to encourage the efficient use of the concept of restorative justice more broadly within the criminal justice system through the United Nation Declaration on


67 the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, the hat is in line with the intent and purpose of establishment of Act No. 27 of 2004 about the truth and Reconciliation Commission, stressing the resolution against human rights abuses are heavy through mechanisms outside the courts (out of court system); From the description above, the Government contends that Article 44 of the Act Number 27 in 2004 about the truth and Reconciliation Commission, will not adversely affect the rights and/or constitutional authority to the Applicant, and not in conflict with article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945. 3. the applicant's Objections in his proposal assumes the provision of article 1 paragraph (9) of Act No. 27 of 2004 about the truth and Reconciliation Commission, contrary to international law, because of the amnesty granted to perpetrators of human rights violations that the weight is not in accordance with the principles recognised by the community of the civilized world, and society in Indonesia including a part of the community of civilized nations. So according to the Applicant, although amnesty is the authority of the President, but based on the principles of international law cannot be given to perpetrators of human rights violations, since the perpetrators of violations of human rights that the weight can be categorized as an enemy of all mankind (hostis humani generis), therefore it is the duty of the State to conduct a prosecution (obligation erga omnes); The reason the presumption against/the applicant tersabut above, the Government can explain things as follows: a. that the amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives (article 14 paragraph (2) of the Constitution of the Republic of Indonesia in 1945, article 1 point 9 of Act No. 27 Tanun 2004 about the truth and Reconciliation Commission) , this shows that there is an attitude of prudence 68 (prudential principle) is a very deep da! am giving amnesty to perpetrators of human rights violations that the weight has voluntarily admitted his guilt and apologized for his mistakes in the past; b. that the disclosure of the facts of human rights violations which the weight (gross violations of human rights) in fact many still experience the constraints and barriers that are significant enough to be completely accounted for that in turn menirnbulkan the public discontent in particular victim or his heir, also has raised political tensions that could hamper reconciliation in order to manifest the unity and national unity; c. that the above mentioned things need to do the steps taken to reveal the truth, recognition of the mistake, the grant of a pardon, peace, hukurn enforcement, Amnesty, rehabilitation as well as a useful alternative to uphold unity and the unity of the nation by remaining attentive to the sense of Justice in society; d. That in fact the State (Government) remains obligated to do prosecution against pe! I'm evil criminal acts nor the perpetrators of human rights violations, if the offender does not admit the truth barsedia the facts and acknowledge kesa! ahannya and not willing to apologize and regret his actions then the perpetrators of human rights violations which occurred in heavy past that presented to the Court of human rights ad hoc; From the description above, the Government contends that article 1 paragraph (9) of the Act 27 Nornor 2004 about the truth and Reconciliation Commission, will not adversely affect the rights and/or constitutional authority to the Applicant, and not in conflict with article 28D paragraph (1) and article 28I ay.at (5) of the Constitution of the Republic of Indonesia in 1945.

69 IV. CONCLUSION based on the above arguments and explanations, the Government appealed to the Honorable Chairman of the Constitutional Court Judges Assembly/Republic of Indonesia are checking and testing the application for termination of Act No. 27 of 2004 about the truth and Reconciliation Commission against the Constitution of the Republic of Indonesia in 1945, can give a verdict as follows: 1. Declare that the applicants are not mempunyal the position of the law (legal standing); 2. Refuse the application for testing the Applicant (void) entirely or at least test the applicant's appeal is unacceptable (niet ontvankelijk verklaard); 3. Accept the Description of the Government as a whole; 4. States:-article 1 paragraph (9); -Article 27; -Article 44 Act No. 27 of 2004 about the truth and Reconciliation Commission was not contrary to article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2), subsection (4) and paragraph (5) of the Constitution of the Republic of Indonesia 1945 A.d.; 5. Declares article 1 paragraph (9), article 26, and article 44. Law Number 27 in 2004 about the truth and Reconciliation Commission still has legal force and effect as binding throughout the territory of the unitary State of Republic of Indonesia. Considering that in addition to providing a description of oral dipersidangan, also gives the Government the additional affidavits dated August 16, 2006, which received in the Clerk's Constitutional Court on Wednesday 23 August 2006 that substantially clarifies as follows: following up on trial in the Court of Konstitusiatas the application for testing Act No. 27 of 2004 about the truth and Reconciliation Commission against the Constitution of the Republic of Indonesia


70 in 1945, which was appealed by Dann, Romance SH et al, on May 23, 2006; on 21 June 2006; date of 04 July 2006 and dated 02 August 2006, and to complement the description of the Government presented by the Minister of law and human rights with respect to additional Government Affidavits submitted as follows: That human rights violations are heavy (gross violations of human rights) which include crimes against humanity and genocide (crimes againt humanity, genocide) which occurred in the past (prior to the enactment of law number 26 of 2000 on Human Rights Court) Yet, until recently accounted for thoroughly, so that the victim or victims ' families which is heirs still haven't gotten the certainty of settlement of the law against violations of human rights that their weight. In addition, the victim or his heir not get compensation, restitution, and/or rehabilitation over the suffering they have experienced. For it's neglect over these responsibilities can lead to dissatisfaction, cynicism, apatisme, and distrust to the institution of the law because the State considered giving exemption from punishment to the perpetrators of human rights violations. To search and reveal violations of human rights, need to be made concrete steps by establishing truth and Reconciliation Commission as mandated by article 47 law number 26 of 2000 on Human Rights Court, which stated: paragraph (1) "the human rights violations that occurred before the enactment of the weight of this Act does not cover possible settlement done by the truth and Reconciliation Commission" subsection (2) "the truth and Reconciliation Commission as referred to in paragraph (1) was established by law". That the establishment of the truth and Reconciliation Commission (The truth and reconsiliation commission) is a collective endeavor mengedepan kan "islah" values of the nation of Indonesia, and will "pardon between perpetrators and victims" in the framework of protection and enforcement of human rights, which in the past (prior to the enactment of law number 26 of 2000 on Human Rights Court) 71-events events of severe human rights abuses (gross violations of human rights) are often dinisbikan even considered no , even without question and investigated who the perpetrators are, who their victims and how the number of victims. In the future it is hoped that human rights abuses are not repeated and severe happens again, like the proverbial truth and Reconciliation Commission (The truth and reconsiliation commission) Argentina who referred to it as "Nunca Ma'as" (not to be repeated again), in South Africa used the term "to forgive but not to forget", or by innuendo that tickles "Tu paux marcher sur I'Afrique, mais n'est pas marche sur I'Africain" (you could run above the land of Africa but never goes above the Africans). Act No. 27 of 2004 about the truth and Reconciliation Commission substantially different to the provisions set forth in Act 26 of 2000 on Human Rights Court. This legislation does not set about the process of prosecution law (due process of law), but is more focused on search and disclosure of the truth, Amnesty considerations, the granting of financial compensation, restitution and/or rehabilitation to victims or families of the victims that are the heirs, so that hopefully will pave the way for the process of reconciliation and national unity. Because it's truth and Reconciliation Commission does not serve as a substitute (substitution) of the Court of human rights. The establishment of the truth and Reconciliation Commission in various Countries has created a shift in the concept of Justice (concept of justice) in the settlement of criminal cases, i.e. on the basis of Justice of retribution/revenge (retributive justice/prosecutorial justice) towards justice in the form of truth and reconciliation that is restorative justice and leads to (restorative justice/community based justice) which stressed the importance of this aspect of healing (restorative) for those who suffered because of the crime. That lately the United Nations (UN) began to encourage the efficient use of the concept of restorative justice more broadly within the criminal justice system through the United Nation Declaration on the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, this is in line with the intent and purpose of the 72 establishment of Act No. 27 of 2004 about the truth and Reconciliation Commission, stressing the resolution against human rights abuses are heavy through mechanisms outside the courts (out of court system). Based on the description, beg Government Chairman/Tribunal Judges of the Constitutional Court wisely rejected the applicant's appeal or at least unacceptable (niet onvankelijke verklaard). However, if the Chairman of the Constitutional Court Judges Assembly/argues another, please wise ruling and seadil-fair (ex aequo et bono). That Additional Government Information are reaffirmation against Government Information both written and Iisan which was submitted by the Minister of law and human rights in the proceedings of the Constitutional Court dated May 23, 2006, unless an explanation/arguments that have not been delivered in the previous trial, the Government can deliver things as follows: 1. The applicant's Objection against the provisions of article 1 point 9 of Act No. 27 of 2004 about the truth and Reconciliation Commission , which States: "Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives" can be delivered back things as follows: a. That the authority of the President to grant amnesty is expressly provided for in Article 14 paragraph (2) of the Constitution of the Republic of Indonesia in 1945, which States: "the President gives amnesty and abolition by paying attention to the consideration of the House of representatives" b. so that if the President decided to grant amnesty to perpetrators of human rights violations (heavy gross violations of human rights), then it would certainly have been considered carefully having regard to consideration of the House of representatives (DPR). c. further granting amnesty to perpetrators of human rights violations which the weight (gross violations of human rights), as well as


73 consider and regard for the truth and Reconciliation Commission's recommendations, as set forth in the provisions of article 25 paragraph (1) of Act No. 27 of 2004 about the truth and Reconciliation Commission, in addition, the truth and Reconciliation Commission in providing recommendations in the form of mandatory law considerations to consider the suggestions submitted by the Community (article 25 paragraph (2) of Act No. 27 of 2004 about the truth and Reconciliation Commission). From the explanation above, the Government expressly granting amnesty to perpetrators of human rights violations which the weight (gross violations of human rights), has been in accordance with the conditions set forth in the Constitution of the Republic of Indonesia in 1945, in addition to principles of accuracy and prudence (prudential principle) became a serious concern by observing input and consideration of the House of representatives, the truth and Reconciliation Commission as well as the community at large. The Government therefore contends that the provision of article 1 point 9 of Act No. 27 of 2004 about the truth and Reconciliation Commission, is not incompatible with article 28D paragraph (1) and article 28I paragraph (5) of the Constitution of the Republic of Indonesia in 1945. 2. the applicant's Objection against the provisions of article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission, which States: "compensation and rehabilitation as mentioned in article 19 can be given in a petition for amnesty was granted", can be delivered back things as follows: a. that the awarding of compensation, restitution and/or rehabilitation to victims or families of the victims that are the heirs as a result of human rights violations that are heavy in the petition were granted amnesty by the President , is the Equalization of the position between the perpetrators and the victims of human rights violations, which in turn can create a sense of Justice in society (vide Article 28 and article 29 of Act No. 27 of 2004 about the truth and Reconciliation Commission).

74 b. That in case of refusal of the application for amnesty by the President, this is not the end of the struggle to uphold justice over human rights abuses, the weight of which occurred in the past, especially for the victim or his heir. Thus with the Amnesty petition turned open spaces and opportunities for victims or heirs to sue for the right to get compensation, restitution and rehabilitation to the State (vide Government Regulation No. 3 of 2002 on compensation, Restitution and rehabilitation. against victims of human rights violations, as a follow-up to the provisions of article 35 of law number 26 of 2000 on Human Rights Courts). The Government argues that the provisions of article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission can not be used as a measure to construct that that provision is contrary to article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945. The provisions of article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission is thus consistency and consequences of the provision of article 27 paragraph (1) of the Constitution of the Republic of Indonesia in 1945. It can be proven that if the amnesty to perpetrators of human rights violations which the weight (gross violations of human rights) was rejected by the President, but a fixed compensation and rehabilitation provided to the victims or heirs, then it can cause things: a Not There is similarity or balance positions in and/or before the law between the perpetrators of human rights violations and victims, should both get the treatment and protection of human rights. b. If the Amnesty against the perpetrators of violations of human rights that the weight was rejected by the President, but against the victim's remains provided rehabilitation, it would have been contrary to law Iogika. The Government therefore contends that the provisions of article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission, is not incompatible with the provisions of article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945.

75 3. The objection of the Appellant against the ketententuan of article 44 of the Act Number 27 in 2004 about the truth and Reconciliation Commission, is considered to have close the chances of victims of human rights violations that are heavy or heirs to obtain justice through the courts, because of the truth and Reconciliation Commission is regarded as an institution have positioned similar to the judiciary, can even replace the courts, when in truth and Reconciliation Commission is extra judicial institution that is intended as a complement (complementary) from settlement through the mechanism of the Court. Of the above, the Government can explain and reiterate things as follows: a. That the provisions of article 44 of the Act Number 27 in 2004. about the truth and Reconciliation Commission, is not at all contrary to the principle of law for Justice seekers (justiciabelen) against the human rights violations that occurred before the enactment of the weight of law number 26 of 2000 on Human Rights Court (vide the provision of article 43 paragraph (1) which States "the human rights violations that occurred before the weight of the promulgation of this law, examined and decided by the ad hoc HUMAN RIGHTS Court" b. Further provisions of article 47 paragraph (1) of law number 26 of 2000 on the Court Human rights yang'menyatakan that: "the human rights violations that occurred before the enactment of the weight of this Act does not cover possible settlement done by the truth and Reconciliation Commission ': c. so it can be inferred that it is against the human rights violations that occurred before the weight of law number 26 of 2000 on Human Rights Courts enforced is through the ad hoc HUMAN RIGHTS Court and a truth and Reconciliation Commission. Thus, the existence of the truth and Reconciliation Commission were not intended as a complement (complementary) nor a substitute (substitution) of the judiciary, but intended


76 as alternative institutions that can be selected by the victims of human rights violations that are heavy or heirs against the resolution of the human rights violations that occurred before the weight of law number 26 of 2000 on Human Rights Court. Because of that, the Government contends the resolution of human rights violations which the weight (gross violations of human rights) through the truth and Reconciliation Commission is itself victim of human rights violations that are heavy or heirs, the Government is not concerned to direct or herding the victims or heirs to choose the resolution of the human rights violations that are heavy through the Ad hoc HUMAN RIGHTS Tribunals or truth and Reconciliation Commission. Over things, the Government argued the Article 44 of the Act Number 27 in 2004 about the truth and Reconciliation Commission, is not incompatible with article 28D paragraph (1) and article 28I paragraph (4) of the Constitution of the Republic of Indonesia in 1945; Such Additional Affidavits the Government, which is part and parcel of the Government's written and oral Information submitted earlier, so may the Chairman of the Constitutional Court Judges Assembly/Republic of Indonesia can make consideration in check and disconnected application testing aquo legislation. Considering, that in addition to providing oral information in the trial on Tuesday May 23, 2006, the HOUSE of REPRESENTATIVES has given his description dated May 31, 2006 received in the Registrar of the Court on Wednesday 07 June 2006 date that substantially clarifies as follows: concerning the subject matter of the material in his Application, the applicant stated, with the enactment of article 1 paragraph (9), article 27 and article 44, Act No. 27 of 2004 about the truth and Reconciliation Commission the Applicant considers the rights of disadvantaged kostitusionalnya the grounds that article 1 paragraph (9) of Act 77 the number 27 in 2004 about the truth and Reconciliation Commission contrary to Article 28D paragraph (1) and article 28I paragraph (5) of the Constitution of the Republic of Indonesia in 1945. The presence of the words "heavy" in the formulation of article 1 paragraph (9): "Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives", this article was considered contrary to the principle of law and therefore do not have the force of law. Article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission contrary to article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945: due to the provisions in article 27 of Act No. 27 of 2004 have been negated warranties of anti-discrimination, the similarities before the law and respect the dignity of man which has been guaranteed by the Constitution of the Republic of Indonesia in 1945. By creating a position of balance between the victim and the offender has the right to discriminate and recovery (compensation and rehabilitation) attached to the victim and is not dependent on the perpetrator. Article 44 Act No. 27 of 2004 about the truth and Reconciliation Commission contrary to Article 28D paragraph (1) and article 28I paragraph (4) of the Constitution of the Republic of Indonesia in 1945, because of provisions in section 44 of the Act Number 27 in 2004 position the truth and Reconciliation Commission as the agency that runs the judicial functions so as to close the opportunity for any person or victim for resolution through the judicial process. Against the petition may be submitted the following information: 1. That the establishment of the law on the truth and Reconciliation Commission is based on consideration of: violations of human rights that occurred during the heavy before the enactment of law number 26 of 2000 on Human Rights Courts to date have not accounted for thoroughly, so that the victim or the victim's family is his heir 78 still not get certainty about the background of the occurrence of violations of human rights against the heavy casualties. In addition to haven't gotten compensation, restitution, and/or rehabilitation over the suffering they have experienced, the abandonment of this responsibility has led to dissatisfaction, cynicism, apatisme, and lack of trust that the institution of the law because the State considered giving exemption from punishment to the perpetrators. The thorough settlement against the human rights violations that occurred during the heavy before the enactment of law number 26 of 2000 on Human Rights Court is very urgent for immediate due to dissatisfaction and political tensions should not be allowed to continue to drag on without settlement certainty. Deus Caritas Est with the truth about human rights violations that occurred during the heavy before the enactment of law number 26 of 2000 on Human Rights Court, through the truth and Reconciliation Commission is expected to be realized national reconciliation. It is also in accordance with article 47 law number 26 of 2000 on Human Rights Court. Legal basis of establishment of truth and Reconciliation Commission as a severe human rights violations settlement road, in addition to the things that become the authority of law number 26 of 2000 on Human Rights Court. 2. That the purpose of the establishment of the truth and Reconciliation Commission is to resolve human rights abuses which occurred in heavy past outside the courts, in order to realize the peace and unity of the nation; and to realize the reconciliation and national unity in the soul of mutual understanding. 3. That the Act No. 27 of 2004 about the truth and Reconciliation Commission, asas based on some of them, namely:-the principle of self-reliance, this principle is a principle which the Commission used in doing their job free from the influence of any party; -Free and impartial Basis, meaning that this is the basis of the Commission in carrying out the duties of disclosure of violations of human rights that are heavily based on existing facts, and not discriminatory;


79-the principle of honesty, meaning that this is the basis of the Commission in carrying out the resolution of the human rights violations that the weight must have high integrity, straight heart, do not lie, cheat or not do the deed; -The principle of openness, this basic meaning that entitles the public to obtain information that is true, honest, and not discriminatory about everything related to the human rights violations that weight while maintaining the protection of private rights, groups, and State secrets; -The principle of peace, this basic meaning that in resolving disputes as a result of violations of human rights that the weight is carried out based on the agreement of the parties to be resolved amicably, for example victims to forgive perpetrators and perpetrators provides restitution to victims; 4. That the provisions in article 27 of Act No. 27 of 2004 about the truth and Reconciliation Commission that governs the granting of compensation, restitution and/or rehabilitation to victims or victims ' families which is the right heir as the result of violations of human rights that are heavy in the petition was granted amnesty by the President, is the Equalization of the position between the perpetrators and victims of human rights violations which, in turn, to create a sense of Justice in society. The amnesty is the President's constitutional rights provided by the Constitution (with attention to the consideration of the House of representatives) as the provisions in article 14 paragraph (2) of the Constitution of the Republic of Indonesia in 1945. Therefore, victims of human rights violations which the culprit had got Amnesty reserves the right to obtain compensation and rehabilitation of the country; 5. That the truth and Reconciliation Commission does not aim solely to punish or embarrass someone (pillorying) or demanding, but more on efforts to obtain the truth is ultimately beneficial to help restore the harmonious relationship between the offender, the victim and the community. the three are basically a crime victims;

80 justice in the truth and Reconciliation Commission is synonymous with complete disclosure (complete disclosure) of all incidents with confronts and bring together victims and perpetrators honestly by avoiding the law is complicated. The process of truth and Reconciliation Commission aimed at avoiding the recurrence of similar incidents in the future through the reconciliation process and not merely lead to pemidanaan on the basis of the existence of consciousness of humanity and sense of interdependence within the Community (community interdependence); Protection and restoration of rights of victims and the wider community are viewed as important as pemidanaan and/or rehabilitation of the perpetrator of the crime. Thus, the integrated views the existence of mutually need each other. The victim and the offender is placed in the same position as important in one building. 6. That Article 44 of the Act Number 27 in 2004 about the truth and Reconciliation Commission, which was set up about the infringement of HUMAN RIGHTS that the weight has been disclosed and resolved by the Commission, the matter can not be submitted again to the ad-hoc HUMAN RIGHTS Court, it is not contrary to Article 28D paragraph (1) and article 28I paragraph (4) of the Constitution of the Republic of Indonesia in 1945 because of the truth and Reconciliation Commission not working substitution (replacing) against the Human Rights Tribunal in accordance with the provisions of law number 26 of 2000 on the rights of the Courts Human Rights. In this case the legislation Commission of the truth and Rekonsilisasi does not control the process of legal prosecution but only governing: – the process of disclosure of the truth; -the process of awarding compensation. restitution and/or rehabilitation to victims; and-the process of consideration of amnesty to the perpetrators; So in order to provide legal certainty, severe human rights abuses that have been revealed and resolved by the Commission cannot be submitted again to the Court of human rights. 7. That against perpetrators of severe human rights abuses are not willing to admit the truth and faults and not willing to repent of his actions, then 81 concerned disenfranchised got amnesty and can be presented to the ad hoc HUMAN RIGHTS Court. As set forth in article 29 paragraph (3) of Act No. 27 of 2004. So from the formulation of article 29 paragraph (3) may be taken to mean that the legislation is not truth and Reconciliation Commission closes the access of everyone to get the settlement through a process of judicial; 8. That article 1 paragraph (9) of Act No. 27 of 2004 about the truth and Reconciliation Commission, which stated that the amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives. It can be explained that in the universal understanding of amnesty in the truth and Reconciliation Commission has a special meaning and a more scalable. Amnesty in the truth and Reconciliation Commission was given only to those who actually admit complicity in human rights abuses fully weight solely motivated by political aspects (associated with political objectives) that are proportional. Other motives, such as personal gain, hate, hurt, envy is personal, the amnesty cannot be relied upon. The applicant's subsequent Amnesty must be willing to be heard publicly to answer the questions of truth and Reconciliation Commission, the legal adviser to the victim and/or the victim's own; Considering that at the trial on Wednesday, June 21, 2006, has heard witnesses and experts under oath submitted by the Applicant, which is substantially as follows: the applicant's Witnesses Marullah-witness is the victim a case of tanjung Priok in 1984; -That at the time of the incident a case of Tanjung Priok in 1984, a 15-year-old was still Witness to follow religious lectures delivered by Ustad Amir Biki, and society demand that Ustad and administrator Payroll that amounted to 4 people being detained in Kodim so exempted; -That all the pilgrims continue to urge it to Ustad Amir Biki, totaling tens of thousands of people came to Kodim berdemo and demanding 4


82 people arrested were released, but arriving in front of the Congregation has been intercepted Kodin Posse by the army; -That at that time there was a victim and shot terdengan injured and some who died, I had a chance to join the raised corpses were collected near Mosolla; -That the witness was one of the victims of torture in the Tanjung Priok case; -That the witnesses detained in Guntur, LP, Cimanggis, and moved to Salemba Prison and disidangkan in the trial of children and was sentenced to 20 months in detention during the cut, in the rest of the sentence was carried out in LP Cipinang for 17 months; -That the witness was one of the witnesses of the life which shows places where victims are buried, among others, murder dipekuburan Pondok Rangon, at Mengkok, and the dipekuburan Tipar Cakung; -That the witness is one of the 13 victims people who received Compensation amounting to Rp 21,000,000.0 (twenty-one million dollars); The Applicant's Expert Dr. Tamrin Amal Tomagola (Sociologist UI); -That the disappearance of human rights that are contrary to the content of the first sentence of the Preamble. -That the independence of the human rights it is a duty and obligation of the State to protect all its citizens. -That peace between all the parties in the framework of the nation State and it there is one value that are Avenged, namely the unity of Indonesia, the cohesiveness of the whole component elements of the nation and the State, lest there is all sorts of procedures that will be performed in the TRC, which was precisely would leave a gaping wound that still don't get it, and create groups or components of the nation still had a distance and did not trust each other; -That Muslims or Islamist groups are groups that suffer the most, which is dipinggirkan by the new order, and in Indonesia it's only two powerful political forces, namely the military strength and the strength of Islam; -That violence stuktural at the time of an access to the tools of violence been monopolized by the State and the country, while other parties especially 83 diniscayakan at all Islamist groups to have access-access. -Actually that should be the focus and point of concern of the whole process of the TRC this is the sacrifice, the sacrifice is a point of concern and that victims ' rights, including the right to forgive and pardon (primarily not solely), and not all of them, some could forgive the country legally, and the first is the right of the victim to perform the forgiveness in the event of the President's so-called Amnesty; -So in the right hands it is forgiveness and sacrifice of that which should be attempted with the full mechanism in the TRC it so happened because if we can finish in between groups, why should we take it and resolved in the courts; Expert Applicant Asvi Warman Adam Dr, APU, (Historian/Historian)-experts will return to the time before 1965 when at that time the political power it sourced or are in 3 (three) hands i.e. Army, President Sukarno and the PKI, however the present lower level people have conflicts, conflicts that occur between people of the PKI, BPI and Ormasnya with Islam conflicts that are caused by what is called the unilateral action; -September 30 or October 1, 1965, broke the balance between Sukarno, the army, the PKI and Sukarno, are surviving and then gradually retired and PKI public as the mastermind in the events. 1965 – 1966 happened the mass killings that occurred in Central Java, East Java, and Bali; RPKAD forces later coached local youth-youth, the first among the youth of Islam and then it came to arrests accompanied by mass killings; -The latter for cases in Indonesia is very different from the case in South Africa, where so many principals who are willing to give testimony/recognition, because they would be granted Amnesty. The law is more upright than here, and they were afraid because if they do not do the testimony or confession they fear dragged into Court and according to Table them better so to save them, but in Indonesia who tried dipengadilan HAM any Ad hoc exempt;

84-the third if the victim recently awarded compensation, after the amnesty will probably happen kongkalikong also because victims expect compensation and could compromise with the offender, who will recount his testimony that lighter-lighter only; -That the recognition given by the victims is extremely limited and result in detriment of the TRC, because this is the disclosure of truth TRC from the past that had closed, that during the time in the history of Indonesia, an official cover-up and darkened. -That the article that drape the fate of victims to the amnesty of perpetrators is very unfair and also impossible to do, should be detached from the rights of the victim to get kopensasi it's attached to the victim, not associated with sipelaku; -At the time of the new order, it is done for mendiskriditkan Bung Karno menyanjung-nyanjung Suharto and in addition also to destroy a group of people, who are considered the PKI or ADDITION, and others; -Make history again as a liberator, one of which is the TRC, which gives the opportunity to the victims to tell others they are natural, this part also in the psychology of healing treatment recounts his ordeal it once was; Considering that at the trial Tuesday, July 4, 2006, had heard a description of one (1) witnesses and three (3) people experts under oath submitted by the Applicant, which is substantially as follows: the applicant's Witness witnesses Mugiyanto is activist SMID, the survivors of the abduction/disappearance of activists in 1998 witnesses abducted on March 13, 1998 at home in Klender witness signed on at 19:00 the night by officers carried with the vehicle and stopped in duren sawit Koramil Post After diintrerogasi, then taken to Kodim Jakarta Timuer. Witnesses at the time as a student activist, Indonesia Student Solidarity for democracy (SMIK), whose fight for autonomy campus anti refused military intervention on-campus demonstration demanding price reductions and


85 national issues as well. Now Witness the Organization entered in the missing person's Family Ties Indonesia (IKOHI). Witnesses in the move to Kodam Jaya and there also was interrogated and tortured for 2 days 2 nights, then moved again to the Polda Metro Jaya were examined and in allege violation of article-article anti-subversion and imprisoned for 3 months from 15th March to 6 June 1998. The witnesses were released because there was a change of Government from the Government to the Government of President Suharto, Habibie and revoking anti subversion laws. The witnesses is one of the 9 survivors while the friends organization members take note of the events of the kidnapping of activists in 1997-1998 there was 13 people are still missing and 1 more person formerly declared missing and a few days later was found dead. -According to witnesses the Court team rose very haven't touched the perpetrators, the Government has done and it is very far from what was expected by the victim, the victim's family and by the witnesses themselves. The witnesses very concerned because our current up as good citizens, but the community still has the presumption that we as a people against the Government and the Communists, also branded as fundamentalist, and the impacts that we feel is the existence of discrimination, impoverishment, tricking this is State policy that is unfair. Expert Applicant Rudi Muhammad Rizky, S.H., LL.M (Professor Of International Law, HUMAN RIGHTS Law, Law Of International Humaniter FH. Univ Pajajaran Bandung, Ad hoc Judge of the Court of human rights, the UNITED NATIONS Independent Expert, the field of HUMAN RIGHTS and international solidarity)-truth and Reconciliation Commission was established, if it is already formally meet the requirements as the TRC, as indicated Dougatt according to requirement 8 Principle, the minimum requirement for the TRC. The first was established by legislative or executive body democratically elected, then the Commission should have the authority, mandatnyapun is also extensive. -The Commission should be authorized to recommend reparations for victims of human rights violations, then hope the perpetrator should be rejected amnesty for perpetrators who refused to cooperate with the Commission or refuse to open in full kejahatanyang they ever did.

86-the judgment against the offender that is actually obligation of the menkind as a whole, the obligation towards mankind as a whole. While the victim compensation that is in the interest of the victim or his heir. This is the ILC draft article may be this many questionable memikatnya power, but we are sure that this is from the angle of international law and is binding, because it meets as the opinions of the experts. -Background Of Act No. 27 of that one is to reveal the truth for the sake of the interests of victims and heirs to get compensation, restitution and rehabilitation. So the interests of the victims here are quite prominent and deals with liability for effective remedi. -Article 27 of Act No. 27 is "compensation and Rehabilitation" can be given in a petition for amnesty was granted, it would have affirmed the rights of victims, because it should be given amnesty. That amnesty should be given if the offender admits error, truth facts, expressed regret over his actions and was willing to apologize to victims and heirs. The Applicant's Expert Prof. Dauglas Cassel. (Professor of international criminal law in the International laws of war & Lillian McDermott, Notredam law school, United States)-the law on the truth and Reconciliation Commission in 2004 have failed to fulfill the task of Indonesia as a country and failing to respect the rights of victims, families and also masyarakatr Indonesia based on International HUMAN RIGHTS Law. It is three (3) ways: 1. Have failed to investigate and put forward the truth about any Case with respect to genocide and crimes against humanity before the year 2000. 2. For failing to provide reparations to the victim and his Family. 3. Has Failed to prosecute and punish the perpetrators deserve him. -Because Indonesia is a member of the United Nations and Indonesia are also part of the UN Charter because it is a treaty or agreement that binds the countries. Under article 55 and 56 of the Charter of the UNITED NATIONS all countries 87 responsible for human rights, based on the international law of treaties, a treaty must be interpreted as actions that should be performed by the State, as a continuation of the actions to be done by the State. -World Court or Tribunal the world since 1927, which requires the presence of reparation for any violation of international rights, the State has a duty to conduct the investigation thoroughly and effectively, provide effective remedies to victims, prosecute and punish perpetrators, as well as the victim and his family also have the right to the truth or know about the truth, and have the right to justice in the form of prosecution and punishment of perpetrators as well; -The sources of the law of obligations, among others, are divided into three (3) things that are included in article 2.1 of the Covenant about the investigation: 1. Investigasinya should be prepared; 2. the Investigasinya should be effective, and 3. All principals must be terindentifikasi; -It is important to State about the scope of the restoration of an effective it must include not only access to justice. but must include the following five elements: 1. Restitution, i.e. is the restitution of property rights or also the name either from the victim; 2. the compensation, in the form of money for a loss-loss; 3. Rehabilitation services, including medical or psychological services; 4. Action-action to satisfy, including Recognition by the public is that this indeed is the responsibility of the State and also an apology are generally committed by officials in the Office of a high enough; 5. Guarantee, that it will not reoccur or non repetition; Public violations in this legislation is a matter for the prosecution and judgment also. International law in General is actually supporting amnesty, but there are restrictions for granting amnesty based on international law, and such restrictions apply specifically for genasida and crimes against kemunusiaan, where in fact it is the subject of the legislation Commission of truth.


Some 88 different sources give different ban or restrictions is different-different to the Amnesty; The Applicant's Expert Prof. Paul Van Zyl. (Professor of international law, the Court of international law in transition, Univ, New York Univ. Colombia USA, former Executive Secretary of the truth and Reconciliation Commission in South Africa)-that the form of the Truth Commission of Indonesia that currently exist yan failed to meet the standard created by the UNITED NATIONS, international standard that based on such matters are made to achieve truth and justice; -The only one that volunteered to proclaim the truth and then then ask that amnesty is the police of South Africa. Due to a successful trial and then punish the police. And if Indonesia's military is not afraid for the prosecution of HUMAN RIGHTS crimes carried out heavy, then the reason for the slight then trust that they'll want to ask yourself and declare the truth and then ask to gain amnesty. Then the TRC it would not work to obtain the truth, and will be a source of great embarrassment for the Government either domestically or internationally; -That the Convention on Civil and political rights have been adopted into domestic law, as well as to the Convention against torture in the anti Law Number 39 of 1999 on human rights. Article 7 of the Act declares the provision that is set in the international law of HUMAN RIGHTS already ratified by the Republic of Indonesia. Then it will be considered valid or legally binding in Indonesia that what is stated in the Truth Commission legislation there are several provisinya that is a violation of international law, as set forth in the International Convention on Civil and political rights and the International Convention is also anti torture. This provision is article 1 paragraph (9), article 22, article 23 and article 44, which based on the clauses that allowed the Commission to recommend to the President that the perpetrators of human rights violations the weight can get Amnesty; Amnesty-organised in the TRC Act also violates article 6 of the ICCPR, article 6 it says that "every human being has rights inherited for a living". These rights must be protected by law or laws and no one can arbitrarily remove their due, and 89 in which in this case jurisprudence also said that the right to life includes within it is the obligation of the State to investigate the murder to bring into justice anyone responsible for the bertanggang people that death or murder; -In article 2 paragraph (3) of the ICCPR where there it is said that each State party "automatic points" do "points" to guarantee that all people of the right or freedom which is known here infringed must obtain an effective recovery, that is an obligation of the State to provide reparation to the victims. Article 27 of the Statute of the TRC is also a violation of the anti torture Convention, to which Article 14 paragraph (1) it is said that the State must guarantee victims of torture obtain recovery and have rights that can be enforced for a pretty and fair compensation including acts as a full rehabilitation; -That the human right Commission now at repleced or replaced by Human Right Council. And that the Government of Indonesia that holds an important role in the council. The 24 principles and principles relevant to this problem, where it is said amnesty and other forms of action should be limited in order to keep up with certain bonds; -About the basic principles and guidelines also for the right to obtain a recovery, which was imposed by the UN General Assembly on 16 December 2005, in article 12 it says that victims of violations of international HUMAN RIGHTS law should be weight gain balanced access to effective judicial recovery, based on international law. Where the Truth Commission legislation which now it has failed and is not in keeping with the international trend, where it is the international trend is to get the "truth and kadilan"; Considering that at the trial Wednesday, August 2, 2006, has heard remarks from the Chairman of the KOMNAS HAM, former Chairman of the TRC BILL NEW GODARD? Drs. Sidarto Danusubroto, S.H. (besides bemberi oral description also conveys the affidavits dated 02 August 2006, received at the Registrar the date Wednesday, August 02, 2006, at 15.00 BST) and one (1) person from overseas Experts under oath submitted by the Applicant , which is substantially as follows:


90 the applicant Expert Abdul Hakim Garuda Nusantara, S.H., LL.M (as Chairman of the KOMNAS HAM) 1. That Act No. 39 of 1999 on HUMAN RIGHTS courts mentions, but this HUMAN RIGHTS Court issue set more in LAW number 26 of 2000. 2. That the HUMAN RIGHTS violations that occurred in the past can be resolved through two legal avenues, to achieve justice. First Avenue, through the Ad hoc HUMAN RIGHTS Court, its formation over the HOUSE'S proposal to the President, then the President issued Presidential Decree No.. Second Avenue, through the truth and Reconciliation Commission. 3. If true it's an uncontestable truth, then financial compensation and rehabilitation could not be associated with dikabulkannya or not granted amnesty by the President. What is the cause of the truth and Reconciliation Commission to verify the truth of an event, severe human rights violations that happened? Who is the culprit and who is the victim? 4. So the amnesty could not be entitled to a payment of compensation and rehabilitation. Since the amnesty was a separate process and is conditional. Article 29 paragraph (2) mention; "In terms of the offender admits mistakes, acknowledge the truth of the facts, expressed regret over his actions and was willing to apologize to the victim or the victim's family is his heir are not willing to forgive, then disconnect the Commission granting amnesty it independently and objectively". So independently and objectively could not be attributed to compensation and rehabilitation, for compensation and rehabilitation that is the responsibility of the State and related facts – facts found by the Commission on the truth. 5. With regard to Article 44 according to the applicant, contrary to article 27, article 28D, and article 28I stating; "In this case the weight of the human rights violations that have been disclosed and resolved, the matter could not be submitted again to the Ad hoc HUMAN RIGHTS Court". Article 44 as a result of the logical and adhered the conception that formulated in article 29 paragraph (2) and (3). That Amnesty can only be granted by the President, and recommended by the TRC to the President when the terms were met. 6. If the TRC in the process through the Ad hoc HUMAN RIGHTS Court, then the Ad hoc HUMAN RIGHTS court proceedings will be held in a petition for amnesty was denied. 91 related to article 7 paragraph (1) letter i stated; "In carrying out the tasks referred to in article 6, TRC has the Authority rejected the application for compensation, restitution, rehabilitation, or amnesty if the matter is already registered to the Court of HUMAN RIGHTS". So the rejection of the application for compensation, restitution, rehabilitation or amnesty that is associated with a lawsuit, already registered or not to the Court of human rights. 7. If a case of severe human rights violations are not likely be resolved through the TRC, then it can be through the Ad hoc HUMAN RIGHTS Court. But if in a particular case the problems of severe human rights violations, the TRC was resolved through more precise. Sidarto Danusubroto Applicant experts (former Chairman of the TRC BILL NEW GODARD?) 1. That the process of the establishment of the legislation is expected to fix the deficiencies found in the former Act. Experts like to say that better legislation was born with a slight disability than not at all. Since the establishment of the legislation it is not that easy and simple. 2. In the presence of the TRC Act, regarding the Truth telling that is disclosure of the truth on the new order is a very rare thing to talk about, is currently being terakomodasi in the law. First truth telling are by law although it is now no longer terakomodasi by law. The delegation of South Africa had ever asked "why Truth telling is no longer terakomodasi by law?" Experts say because it is not in accordance with the cultural heritage of our culture. Legal details are already memadahi, but not in keeping with the culture of Indonesia. 3. Related to article 27 that can mengeliminir the existence of article 19. Regarding article 27 related to article 19, article which addressed the rights of test material compensation and rehabilitation can be provided in the application for amnesty granted by the President. When NEW GODARD? discuss article 27, a dozen victims of severe human rights violations stated objections to the article. 4. The rejection of article 27 presented by the victims of human rights violations and Legal aid agencies are fighting for the rights of victims are very understandable. But the political constellations at the time it makes the fraction-92 in the House factions accept the formulation of article 27 as there is today. Acceptance of the formula of article 27 by the HOUSE of REPRESENTATIVES is the result of deliberations-fraction fraction contained in the HOUSE of REPRESENTATIVES, so a discussion of the TRC Act not to protracted and deadlocks. If this is the case then it is certain the process discussion of article 27 may experience delays and will most likely be succeeded by a member of Parliament of the next service 2004-2009. And surely it must better understand the substance and philosophy of the TRC Act. 5. severe human rights violations is an extra ordinary crime so that the solution can not apply provisions of existing laws, such as the CRIMINAL CODE and so on, have to go through special lines. For it with the mandate of Article 39 Paragraph 104 a set of human rights has established a law number 26 of 2000. The legislation is expected to protect the human rights of both individuals and the community and the Foundation in enforcing the law, fairness, sense of security, both individuals and society against severe human rights violations. 6. Tap MPR Number V also mentioned the necessity of the TRC were formed (transitional justice). In the TRC is an Ad Hoc Court Avenue, and Avenue Court TRC. This is called Complementary law, a step taken was the disclosure of truth, truth telling, confession of error, the granting of pardon, peace, the rule of law, Amnesty, rehabiltasi, and alternatife another useful to uphold unity and the unity of the nation by remaining attentive to the sense of Justice in society. 7. regarding article 1 paragraph (9), Amnesty is forgiveness right given by the President to the perpetrators of human rights violations is heavy with attention to the consideration of the House. Article 1 General provisions, is so arranged in this chapter, there are things which are normative. In addition, what is set out in article 1 paragraph (9) this is in accordance with the provisions of article 14 paragraph (2) of the 1945 Constitution which States; "that the President give amnesty and abolition by arguing that article 1 paragraph (9) is contrary to the Constitution of 1945". The length of the debate quite tiring for 16 months showed that the process of giving birth to a LAW expected to be


93 used to bury past clouds is not easy and simple job. 0leh therefore, on many occasions, I as Chairman of the new Godard? always say that better legislation is born with a "disability" rather than not at all. Nevertheless, some important things to note from the results already achieved by the new Godard? is: 1. the HOUSE of REPRESENTATIVES has tried running the task mandated by the appropriate TAP MPR mandate Number V/MPR/2000 as well, although they realize that those results not so as to provide maximum satisfaction to all parties concerned. It should be understood that any important decisions, especially when it concerns the lives of millions of people about something that is very sensitive, surely will generate debate and differences in attitude in responding to and understand it. However, according to the opinion of some, such as community care law, the end result of the work of the HOUSE of REPRESENTATIVES (TRC BILL new Godard?) is still better when compared with the preliminary draft submitted by the Government, which can be seen from some of the significant changes that have been made, such as: a. the disclosure of truth during this particularly on the new order is something very "allergic" to talk about , with the existence of the ACT of the TRC being terakomodasi in the law, through the establishment of sub-committees as provided for in article 16, namely: a. subkomisi the investigation and clarification of the violations of human rights; b. subkomisi compensation, restitution, and rehabilitation; and c. subkomisi consideration of amnesty. b. the number of members of the Commission originally proposed amounted to 15 people plus agreed to become 21 people consisting of 3 persons lead an, 9 members of the sub Commission of investigation and clarification; 5 members of the subkomisi compensation, restitution and rehabilitation, and 4 members of Amnesty considerations subkomisi. c. the selection Committee which in the draft specified 5 persons with the composition of the Government and 2 element 3 element of society, converted to 2 of 3 from the Government and the community.

94 d. working period of the proposed Commission for 3 years and can be extended for two years, finally being converted to 5 years and can be renewed for 2 years. It should be understood that there are two critical issues that invite long debate in the discussion of the BILL of the TRC, namely regarding the disclosure of truth and article 27. Many people who feel "objection" dicantumkannya provisions on the disclosure of the truth in the law, because by doing so will open up opportunities for the loading of various issues of the nation that had attempted to "forgotten". While related to article 27, the objection comes from a victim and victim's family party, because this article 27 shall be construed mengeliminir the existence of article 19. RESPONSES to the ARTICLE POSED the RIGHT TEST MATERIAL 1. Article 27: compensation and rehabilitation as mentioned in article 19 can be given in a petition for amnesty was granted. When discussing article 27 new Godard?, there are about 15 organizations of victims who expressed objections with the enactment of this chapter, including the Forum of communication revised Dwikora Cabinet Minister Ex Abusers Supersemar, the ranks of the TNI Advocacy Team AD, the ranks of the TNI Advocacy Team AU, Advocacy Team ranks of the TNI Advocacy Team AL, ranks of Police associations were Victims of the new order, the Struggle of rehabilitation of victims of the new order Regime, solidarity of victims of human rights violations Liberation Action Committee, Prisoners/Prisoners, Victims of events research institutes ' 65. Objection or rejection of the provisions of article 27 submitted by victims and the institutions that fight for the rights of the victim are very well understood. But political konstalasi at that time make a fraction-faction in the House accept the formulation of article 27 as there are now. The acceptance of PARLIAMENT against the existence of this article is as a form of compromise so that the deliberations of the BILL of the TRC was not until protracted and deadlocks. If this is the case, then it is certain the process discussion of delays and is likely to be succeeded by a member of Parliament RI period 2004-2009, which certainly should learn from the beginning to understand the substance and f i l o s o f i of the BILL of the TRC. Thus, the discussion will be prolonged, and Iebih concerned about 95 witnesses still alive will be reduced one by one, and the presence of the TRC later won't be too significant again because it was increasingly lost momentum. Therefore, when the BILL was passed, a majority of the members of the TRC new Godard? argues that the objections the parties still dissatisfied can actually be channelled through some of the container are already available such as asking "the right Test Material" to the Constitutional Court, as it did this time. 2. Article 44: the human rights violations that have been disclosed are heavy and resolved by the Commission, the matter can not be submitted again to the Court of human rights ad hoc human rights violations which the weight is "extra ordinary crimes" so that the settlement is also unable to use existing laws such as the CRIMINAL CODE, so that had to go through a "special path". To that end, in accordance with the mandate of Article 104 of LAW Number 39 of 1999 on human rights, had established a law on Human Rights Courts (law number 26 of 2000), which is expected to protect human rights, both individual as well as society, and became the basis in enforcement, legal certainty, justice, and a feeling of safety, both for the individual as well as society, against violations of human rights. Despite the existence of the ad hoc HUMAN RIGHTS Court, TAP MPR Number V/MPR/2000 also mentions the need for established truth and Reconciliation Commission, which is the institution of the yudicial extra-duty to uphold righteousness by revealing abuses of power and human rights violations in the past, in accordance with the provisions of the law and legislation in force and implement reconciliation in perspective of common interests as a nation. The steps taken was the disclosure of the truth, the confession of error, the granting of pardon, peace, the rule of law, Amnesty, rehabilitation, or other alternative to uphold unity and the unity of the nation by remaining attentive to the sense of Justice in society. The first thing that has become the consensus of all parties was that reconciliation, which include the National Rehabilitation Commission Statutes, it is the MPR Number V/MPR/2000 on the establishment and


96 national unity, which continued into a package with the enactment of LAW number 26 of 2000 on HUMAN RIGHTS ad hoc Tribunal, and is part of the execution of the commands of the Constitution to all the organizers of the State, which is in line with the goals and purpose Amending the CONSTITUTION of the Republic of Indonesia in 1945, especially Article 28A – 28J on human rights (human rights). One of the most important rationale informing demonstrates National Rehabilitation and Reconciliation are performed is to show the nation's efforts toward Indonesia perwujudnyataan to a better future by leaving a political revenge and the trauma of the past. Moving on from an understanding of the above, then the BILL of the TRC to make new Godard? formulation of article 44 as currently exists. Indeed it is understood that in the sense of the various theories of the TRC as extra judicial institution is the resolution of cases of human rights violations outside the Court. But If those cases have already revealed and resolved by the Commission can still be presented to the ad hoc HUMAN RIGHTS Court, then: a. the purpose outlined above will not be achieved, b. There is no legal certainty, both for the perpetrators as well as for victims. c. no offender who is willing to use the TRC as a mechanism for solving problems of human rights violations. 3. Article 1 paragraph (9): Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives. Article 1 General Provisions, is so arranged in this section is things that are normative. In addition, what is set out in article 1 paragraph (9) this is in accordance with the provisions of article 14 paragraph (2) of the CONSTITUTION of the Republic of Indonesia in 1945, which States that: "the President gives amnesty and abolition by paying attention to the consideration of the House of representatives": Pasa 28D subsection (1) of the Constitution affirms that: everyone has the right to recognition, guarantees, protection and legal certainty in a fair and equal recognition before the law Whereas Article 28I paragraph (5) confirms that: to uphold and protect human rights in accordance with the principles of a democratic State of law, then the implementation of the rights of man 5 97 guaranteed, set up, and poured in regulation perundangan-undangan. Thus, there is no relevance stated article 1 paragraph (9) is contrary to the CONSTITUTION; and submitted the test Material Rights to the Constitutional Court. The applicant's expert Prof. Naomi Roht-Arriaza (expert on Transitional Justice, International HUMAN RIGHTS Law, University of California, USA) 1. The definition of victims can be found in the Declaration of basic principles of Justice for victims of crime and abuse of authority. This has been adopted by a resolution of the General Assembly on 29 November 1985. A person who is referred to as the victims are those who individually or collectively have suffered a wound of misery, including physically and mentally, also suffering economic loss, emotional and also disorders of substance against the rights of those fundamentals. 2. A person may be considered a victim, regardless of whether the perpetrators were successful or not identified, arrested or not, required or not, and regardless of the relationship of fraternity between the victim with the offender. So this is a basic principle, who is named as a victim, could not have affected whether the culprit that can be identified or not, and it also applies equally to Amnesty. 3. That the State must not only provide restoration and repair. But the country also has to assure or guarantee that at least its domestic law providing a protection to what was foreshadowed by the international responsibility or liability. The resolution also stated that the State must provide or provide for those who declare themselves as victims of human rights violations or violations of laws of war with an effective and equal access to justice. The State must also provide effective redress for victims, including reparations. 4. The obligation to provide reparation are governed in all aspects, as provided for in international law. In the scope, the nature is nature, shape, and also to the determination of who may gain due to the or to benefit from it cannot be modified by those countries and also countries could not refuse to comply or obey 98 by making different things in the prvfisi or the domestic law provisions 5. Based on international law, victims of severe human rights violations that are the victims of human rights violated. So at points where the crime was committed or violence, then that's when the person is obtained status as a victim. The State will give the right to victims of abuses to gain access to justice and also to obtain the restoration or repair. So these are two separate rights but are related. 6. That practice in Indonesia, in contrast with the practice in other countries. It can be said that the procedures will be different, because the procedure is purely incidental, in which the procedure can be seen from each incident and provide no opportunity for the victims of the infringement of HUMAN RIGHTS is hard to see a procedure based on the overall pattern. 7. The amnesty was allowed after the conflict. However, there are restrictions that limit, where certain crimes should not be given amnesty. Where is based on current practices and also based on law, it is said that genocide and crimes against humanity is a crime that is limited and can not be given amnesty. This is an international agreement that is contained in the Treaty, for example-perjanijan treaty anti torture or anti torture, where Indonesia is also part of the agreement. 8. TRC allow some form of amnesty that is most widely known, such as South Africa, where the TRC TRC Amnesty allowing South Africa as replacement or Exchange with the truth, but for those not in whole or in total stated the truth will be demanded, so the same applies for reparations against the victim. According to the Indonesia amnesty laws that may not be given but the victim may not be able to continue the case. 9. the TRC found in East Timor, have a procedure of reconciliation within the society as part of the procedure of the TRC. But that only applies to minor crimes or crimes that are lighter. In Colombia there is no REVIVAL MEETINGS, but there is a law on peace and


99 justice, where such laws memperboleh-kan reduction punitive period of 5 (five) years. In this case, the State of Colombia is just stating the truth and reparations, but does not provide amnesty. Considering that the applicant has given his conclusion that received in the Clerk's Constitutional Court on Tuesday 29 August 2006; Considering that to shorten the description of this ruling, then everything that is printed in the news of the event Proceedings is considered to have been included and are part and parcel of this ruling; LEGAL CONSIDERATION considering that the goal and purpose of the petition is as described above. Considering that there are three things that should be considered by the Court in this matter, namely: 1. The authority of the Court to check, try and break the plea raised by the Applicant; 2. The position of the law (legal standing) the Applicant to apply for a quo; 3. The subject matter of the petition concerning the constitutionality of laws that appealed the test by the applicant. Against these three things mentioned above, the Court held as follows: i. AUTHORITY the COURT Weigh under article 24C paragraph (1) of the Constitution of the Republic of Indonesia in 1945, UUD 1945, hereinafter referred to as "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution, severing of disputes the authority of State institutions that are its 100 given by the basic law , disconnect the dissolution of political parties, and hang up about the outcome of the elections. " The terms are loaded back in article 10 paragraph (1) of the Act of the Republic of Indonesia Number 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316, hereinafter referred to as the ACT of the CONSTITUTIONAL COURT); Considering that the applicant's plea is about testing the laws of the Republic of Indonesia Number 27 in 2004 about the truth and Reconciliation Commission (State Gazette of the Republic of Indonesia Number 114 in 2004, an additional Sheet of the Republic of Indonesia Number 4429, hereinafter referred to as the TRC ACT) against the UUD 1945, so therefore the Court is authorized to inspect, judge, and disconnect the petition of the applicant. II. The POSITION of the LAW (LEGAL STANDING) whereas under article 51 paragraph (1) of the ACT the COURT, the applicant in testing legislation against the Constitution is the party that assumes the rights and/or authority konstitusionalnya harmed by the enactment of the Act, that is: a. an individual (including a group of people who have the same interests) citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions. Whereas in addition, since the verdict Number 006/PUU-III/2005 and subsequent rulings, the Court has determined five terms about the loss of constitutional rights as stipulated in article 51 paragraph (1) of the ACT the COURT, as follows: a. There must be rights and/or constitutional authority the applicant granted by the Constitution;

101 b. rights and/or constitutional authority is considered to have been harmed by the enactment of legislation which petitioned testing; c. loss of rights and/or constitutional authority is specific and actual nature of the potential, at least according to the reasoning reasonably certain will happen; d. There is a causal relationship (causal verband) between the loss of rights and/or constitutional authority with legislation that petitioned testing; and e. it is possible that with the dikabulkannya petition, then the loss of rights and/or constitutional authority postulated will not or no longer occur. Considering that in answering the question whether the applicant has the legal standing to apply this test, then it should be checked (i) whether the applicant's qualifications in are categorized, and (ii) what constitutional rights owned and disadvantaged with the enactment of the ACT of the TRC; Memimbang that the applicant I up to VI postulated himself as private law bodies, as provided for in article 51 paragraph (2) Letter c, but based on the tools of the evidence submitted, not found the existence of an endorsement as a legal entity which has been made the Department of Justice and human rights as set forth in the applicable provisions. On the other hand, the applicant I up to VI are based on what the applicant himself referred to as organisational standing, just as the Assembly, which has not yet obtained a position as a legal entity in accordance with the applicable provisions, so that the Court held that petitioners can only be dikualifikasikan as an individual citizen or a group of people who have the same interests. Thus the same credentials with the applicant VII and VIII as an individual citizen of Indonesia. Whereas the Applicant postulated that constitutional rights are human rights (human rights) not to be tortured, the right to life and the right to obtain equal treatment without discrimination guaranteed by the Constitution. The TRC ACT, the enactment had postulated harm the constitutional rights of the applicant, since the ACT of the TRC considered giving a guarantee, respect and protection of HUMAN RIGHTS of the Applicant as


102 referred to article 27 paragraph (1) of article 28D, paragraph (1), article 28I paragraph (2) and paragraph (5) of the Constitution, especially since Article 1 point 9 of article 27 and article 44 of the TRC ACT, determines the terms of compensation and rehabilitation are hung on a dikabulkannya amnesty, which can menegasi the right to rehabilitation and compensation as the HAM, which must be guaranteed, protected and fulfilled according to CONSTITUTION 1945 the unconditional , became uncertain. Considering that Article 1 point 9 of the TRC ACT reads, Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives. " Article 27 of the TRC ACT reads, "compensation and rehabilitation as mentioned in article 19 can be given in a petition for amnesty was granted". Article 44 of the TRC ACT reads, "the human rights violations that have been disclosed are heavy and resolved by the Commission, the matter can not be submitted again to the Court of human rights ad hoc". The applicant argued that the articles that contradict the Constitution as follows: 1. Article 1 point 9 of the TRC ACT contrary to Article 28D paragraph (1) of the Constitution, which gives recognition, guarantees, protection and legal certainty and fair Article 28I paragraph (5) of the Constitution which States that in order to uphold and protect HUMAN RIGHTS in accordance with the principles of a democratic State of law, so that the implementation of HUMAN RIGHTS should be guaranteed by the legislation in accordance with the basic law. 2. Article 27 of the TRC ACT contrary to article 27 paragraph (1) of the Constitution, which governs about equations in front of the law and in the Administration as well as upholding the law and rule, article 28D paragraph (1) of the Constitution, which regulates the guarantees, protection and legal certainty are fair, as well as equal treatment before the law, article 28I paragraph (2) of the 1945 CONSTITUTION which reads, "everyone has the right freely over discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment It "as well as Article 28I paragraph (4) of the Constitution reads," protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State, especially the Government. "

103 3. Article 44 of the TRC ACT contrary to Article 28D paragraph (1) of the Constitution which regulates the guarantees, protection and legal certainty are fair, as well as equal treatment before the law, article 28I paragraph (2) of the Constitution which regulates that every person has the right to be free from discriminatory treatment on the basis of any kind, and is entitled to protection from discriminatory treatment, and Article 28I paragraph (4) of the Constitution , which govern that protection, promotion, enforcement, and the fulfilment of HUMAN RIGHTS is the responsibility of the State, especially the Government. Whereas the applicant VII and VIII, respectively are individuals that postulated itself as the victim of the abduction and forced disappearance in 1997-1998, and a former political prisoner for 14 years for alleged involved the G-30-S without trial and found guilty. Based on the assumption that the TRC ACT was contrary to the articles of the Constitution and the constitutional rights of the adverse Claimant VII and VIII especially to article 28D paragraph (1) which reads, "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law", article 28I paragraph (1) which reads, "the right to life and the right not to be tortured ..." , Article 28I paragraph (4) which reads, "protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State, especially the Government", the Court held the applicant's constitutional rights VII and VIII the above which is considered to have been harmed by the TRC ACT referred to by the Court so that it can be accepted as a qualified party of article 51 paragraph (1) of the ACT the COURT. Therefore the applicant VII and VIII had the position of law (legal standing) to apply for it. As for taking action against the applicant I up to VI as a social institution that provides advocacy and community attention as well as the struggle to defend the rights of victims of human rights violations and has even participated in hearings in the HOUSE of REPRESENTATIVES in the process of the establishment of the TRC ACT, which considers HUMAN RIGHTS contained in the Constitution as rights and their interests as citizens, then in accordance with the rulings of the Constitutional Court Docket Number 002/PUU-I/2003 , Number 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005, as well as Number 003/PUU-III/2005 the Court held Petitioner I up to VI has the position of law (legal standing) to apply for a quo.

104 Meanwhile two people judge the Constitution H.AS. Natabaya and h. Achmad Roestandi, argues that the applicant I up to VI has no legal position (legal standing) to beracara in the presence of the Court. It is based that the Petitioner I up to VI as the postulated Association as a victim according to the Act a quo is unwarranted, because as an association according to criminal law it is not possible the applicant can dikualifikasi as victims of severe human rights violations by law number 26 of 2000 on Human Rights Court. Whereas the Applicant VII and VIII, as well as individuals could not be dikualifikasi as a victim according to the Act a quo caused the Applicant does not fulfill the notion of sacrifice that regulated Article 1 point 5 juncto article 1 of ACT number 4 of the TRC. Further institutions of the TRC which had the authority to reveal the truth over the heavy human rights violations have not been formed, in particular the authority to conduct the investigation and clarification on the weight of the human rights violations are still premature. III. PRINCIPAL APPLICATION considering that evidence the applicant's petition stated article 27, section 44, and article 1 point 9 of the TRC ACT is contrary to the Constitution with the reasons which substantially as follows: 1. The provision of article 27 of the TRC ACT create rights victims over compensation and rehabilitation depends on dikabulkannya amnesty, not on the substance of the matter. 2. The Amnesty ACT in article 27 TRC requires the presence of the offender. Consequently in the absence of the perpetrator is found, then it will not be possible given the amnesty, so that the victim gets no warranties of recovery; 3. This provision has been mounting casualties in a State that is not balanced and depressed because the victim is given the weight requirements to obtain its rights, that is, depend on the granting of amnesty. 4. The implications of the formulation of article 27 of the TRC ACT has made the position of balance between the victim and the offender and has rights to the mendisriminasikan attached to the recovery of the victim, and not dependent on the abuser


105 and don't appreciate the sacrifice that has been suffering from severe human rights violations that had befallen him. 5. Article 44 of the TRC ACT positioned TRC as an institution with the same Tribunal has closed access to everyone to get the judicial process through completion. 6. Article 44 of the TRC ACT Setting that does not allow any more checks on the Ad Hoc HUMAN RIGHTS Court, if such examinations have been resolved through the TRC has removed the right of the State in prosecuting perpetrators of human rights violations are severe, as set forth in international law either which is set up in practice as well as in international agreements. 7. The amnesty for human rights violations is contrary to the weight of international law, but in the formulation of article 1 point 9 of the TRC ACT thus makes it clear that the amnesty granted to perpetrators of severe human rights violations so that such article is contrary to the principles of law recognized by the international community. Considering that evidence if possible to strengthen the Applicant has submitted evidence of the mail tools marked P-1 to P-36b, two witnesses, and six experts that his statement had been described in full in the sit down thing in anyway explain things as follows: Witnesses. 1. Marullah:-Witness that the witness was one of the victims of torture in the Tanjung Priok case who was arrested in Guntur, LP, Cimanggis, then moved to Salemba Prison. Disidangkan witness in the trial of children and was sentenced to 20 months in jail deducted during in detention, and the rest of the sentence was carried out in LP Cipinang for 17 months; -That the witness was one of the witnesses of the life which shows places where victims of killings that were buried in the Cemetery at Pondok Rangon, Mengkok, and at Cakung Tipar. The witness is one of the 13 victims people who received compensation amounting to Rp 21,000,000.0 (twenty one million rupiah).

106 2. Mugiyanto witnesses: witnesses as an activist Student Solidarity for democracy Indonesia (SMIK) who fought for the autonomy of the campus and rejected military intervention in College, was kidnapped on March 13, 1998 at home in Klender witness signed on at 19:00 by officers carried with the vehicle and stopped in Duren Sawit Koramil Post, after diintrerogasi and then taken to Kodim, East Jakarta; Witnesses accused of violating articles antisubversi and detained in Kodim, East Jakarta, were transferred to Kodam Jaya, then to Polda Metro Jaya for three months from March 15 until June 6, 1998. The witnesses were released because there was a change of Government from the Government to the Government of President Suharto, Habibie and repeal a law Antisubversi; The witnesses is one of the nine survivors while the friends organization members take note of the events of the kidnapping of activists in 1997-1998 there was 13 people are still missing and another which was declared missing, a few days later found dead; -According to a witness, the Court of the rose Team haven't touched the actors, very far from what was expected by the victim, the victim's family, and by its own witnesses; The witnesses very concerned because until recently the good citizens as witnesses, but the community still has the presumption that a witness as the Communists, against the Government and also branded as fundamentalist, and the impacts that witnesses feel is the existence of discrimination, impoverishment, and tricking. This is a State policy that is unfair. Keterangaan expert: 1. Expert Tamrin Amal Tomagola Dr.:-that the disappearance of HUMAN RIGHTS that are contrary to the content of the first sentence of the preamble to the CONSTITUTION of 1945 and the independence of the human rights it is a duty and obligation of the State to protect all its citizens; -That peace between all the parties in the framework of Indonesia unity and cohesiveness throughout the component elements of the nation and the State, then the TRC not expected 107 thus leaving a gaping wound that still don't get it, and create groups or components of the nation still had a distance and did not trust each other; -Actually that should be the focus and point of concern of the whole process of the TRC this is the victim and the victim's rights, including the right to forgive and forgive. The main and first is the right of the victim to perform the forgiveness in the event of the President's so-called Amnesty; -Therefore, the rights of victims are in the hands of forgiveness which should be attempted with the full mechanism in the TRC to be resolved to investigate, without having to go through the courts; 2. Expert Dr. Asvi Warman Adam, APU.:-Before 1965, sourced or political power is in the hands of three elements, namely, President Soekarno, the army, and the PKI. But at the level of society has already happened conflicts that involve PKI, BPI, and ormasnya with the circle of Islam. Conflicts that are caused by unilateral action; -On September 30 or October 1, 1965, broke the balance between Sukarno, the army, and the PKI. Sukarno gradually retired and the PKI is considered the mastermind of the events. 1965 – 1966 mass murder took place in Central Java, East Java, and Bali; RPKAD forces – then coached local youth, especially among the youth of Islam, after which later came arrests accompanied by mass killings; The cases in Indonesia are very different from the case in South Africa, where many actors are willing to give testimony/recognition, because they would be granted amnesty. They are afraid because if they do not do the testimony or confessions, they will be dragged into court desk; In case the victim be compensated after the amnesty, there might be going kongkalikong also because victims expect compensation and can compromise with the offender, who will recount his testimony that lighter-lighter only; -Article that drape the fate of victims to perpetrators, Amnesty is very unfair and also impossible to do. The right of victims to obtain compensation attached to the victim, not associated with the offender;


108-Makes History again as a liberator, one of which is the TRC, which gives the opportunity to the victims to recount what they experienced. It is also a part of psychological healing, i.e. healing by telling their sufferings in the past. 3. Expert Rudi Muhammad Rizky, S.H., LL. M.:-truth and Reconciliation Commission already formally meet the requirements as the TRC, according to Dougatt Principle. The minimum requirement for TRC, was established by the legislature or Executive democratically elected, then the Commission should have the authority, with a broad mandate as well; -The Commission should be authorized to recommend reparations for victims of human rights violations. Are for the perpetrators who refused to cooperate with the Commission or refuse to open fully the crimes they had committed, Amnesty also rejected him; – Punishment of perpetrators is the obligation of the man kind as a whole, the obligation towards mankind as a whole. While the victim compensation that is in the interest of the victim or his heir; -One of the TRC ACT background is to reveal the truth for the sake of the interests of victims and heirs to get compensation, restitution, and rehabilitation. The interests of the victim and asked questions relating to liability for remedi is effective; -Article 27 of the TRC ACT it concerns the "compensation and rehabilitation" that can be given in a petition for amnesty was granted. The amnesty should be given if the offender admits error, truth facts, expressed regret over his actions, and is willing to apologize to victims and heirs; 4. Expert Prof. Douglas Cassel:-ACT of the TRC had failed to meet the obligation of Indonesia as a country and failing to respect the rights of victims, families and also the Community Law based on International HUMAN RIGHTS Indonesia in three ways: First, 109 failed to investigate and put forward the truth about any cases related to genocide and crimes against humanity before the year 2000; Second, it fails to provide a restoration to the victim and her family; Third, the failure to prosecute and punish the perpetrators properly; -Indonesia as a member of the United Nations, under article 55 and 56 UN Charter as a Treaty of international law are responsible for HUMAN RIGHTS; -World Court or Tribunal the world since 1927, requires that the State has a duty to conduct the investigation thoroughly and effectively, provide effective remedies to victims, prosecute and punish the perpetrators. Victims have the right to know the truth, and have the right to obtain justice in the form of prosecution and punishment of perpetrators as well; -The scope of the restoration of an effective it must include not only access to justice, but must include the following five elements: 1. Restitution, is the restitution of property rights or also the name either from the victim; 2. the compensation, in the form of money for a loss-loss; 3. Rehabilitation services, including medical or psychological services; 4. Actions to satisfy, including recognition by the public that this indeed is the responsibility of the State and also an apology are generally committed by officials in the Office of a high enough; 5. Guarantee that human rights violations are not repeated or non repetition; -There are restrictions for granting amnesty based on international law, and the restriction is valid in particular for genocide and crimes against humanity, which is the subject of the TRC ACT;

110 5. Expert Prof. Paul Van Zyl:-that the form of the Truth Commission the current Indonesia failed to meet the standard created by the UN to achieve truth and justice and not the truth or justice; -The only thing that gives the TRC Amnesty against human rights violations in the world is the South Africa of the TRC, but the existence of the TRC in South Africa that would allow Amnesty that is an exception, not a rule. The reason for the exception, because the apartheid Government declared that democracy cannot sign in to South Africa if amnesty is not granted and Nelson Mandela and the leaders of the South Africa HUMAN RIGHTS movement agree and gave promise of a constitutional nature such amnesty. Therefore it is also South Africa's new Constitution thus contains a clause that would allow Amnesty for human rights violations. If it is not contained in the Constitution of South Africa, then the Constitutional Court of South Africa will not be able to accept the Amnesty; -That the Convention on Civil and political rights have been adopted into domestic law, as well as to the Convention against torture anti. Article 7 Act No. 39 of 1999 on HUMAN RIGHTS proclaim the rule of international law on HUMAN RIGHTS already ratified by the Republic of Indonesia is legally valid and binding in Indonesia; -That some of the article listed in the ACT of the TRC is a violation of international law, as set forth in the International Convention on Civil and political rights and the International Convention is also anti torture. The provisions in question are article 1 paragraph (9), article 27, article 28 and article 44 of the TRC ACT, where based on the clauses that allowed the Commission to recommend to the President that the perpetrators of human rights violations the weight can get Amnesty; Amnesty-organised in violation of article 6 of the TRC ACT, article 2 paragraph (3) of the ICCPR; -That the Human Rights Commission has now been replaced by the Human Rights Council, in which Indonesia played an important role in the Council;


111 6. Expert Prof. Naomi Roht-Arriaza: countries must not only deliver the restoration to the victim but also must assure or guarantee that at least its national law provides a protection of HUMAN RIGHTS in accordance with the required as international responsibility or liability. The State must also give or provide effective access to justice for those who declare themselves as victims of human rights violations; -Based on international law, victims of severe human rights violations was a victim of his HUMAN RIGHTS violated. At the moment in which the crime was committed or violence, then that's when the person is obtained status as a victim. The State will give the right to victims of abuses to gain access to justice and also to obtain the restoration or repair. This is two separate rights but are interconnected; -Amnesty that allowed after the conflict. Despite such restrictions, where certain crimes should not be given amnesty. Based on current practice and also based on law, it is said that genocide and crimes against humanity cannot be given amnesty. This is an international agreement that is contained in the Treaty, for example-perjanijan treaty anti torture or anti torture, in which Indonesia is also part of the agreement; -TRC amnesty allowed South Africa as replacement or Exchange with the truth, but for those not in whole or in total stated the truth will be demanded; -TRC East Timor reconciliation procedures has in the community as part of the procedure of the TRC. But that only applies to minor crimes or crimes that are lighter. In Columbia there is no REVIVAL MEETINGS, but there is a law of peace and justice, where the law permits a reduction in the period of the sentence of five years. In this case, the State of Columbia simply stating the truth and reparations, but does not provide amnesty;

112 considering that the Government, the House of representatives, former Chairman of the TRC BILL new Godard?, and Chairman of the Komnas HAM had given written and oral information in the trial, which has been more contained in the descriptions about sitting things substantially States the following: 1. Government: a. that the establishment of the truth and Reconciliation Commission (The Truth and Reconsiliation Commission) is a collective endeavor to uphold "islah values" of the nation of Indonesia in the framework of protection and enforcement of HUMAN RIGHTS , which in the past (prior to the enactment of law number 26 of 2000 on Human Rights Court, hereinafter referred to as the ACT of the Court of human rights). The events of human rights violations the weight (gross violations of human rights) are often dinisbikan even considered non-existent, even without question and investigated who the perpetrators are, who their victims and how the number of victims. b. that one very important essence in resolving severe human rights violations that occurred in the past was between the offender and the victim pardon (article 29 of the TRC ACT), for the realization of national reconciliation in order to solidify unity and national unity as mandated by Statute the MPR-RI Numbers V/TAP/MPR/2000 concerning the establishment of unity and national unity. To the fore are expected not to happen and happen again, like the proverbial truth and Reconciliation Commission (The Truth and Reconsiliation Commission) Argentina who referred to it as "Nunca Ma'as" (not to be repeated again), in South Africa used the term "to forgive but not to forget"; c. that if the offender admits his error on a voluntary basis, admit the truth of the facts, expressed regret over his actions, and is willing to apologise to the victim or the victim's family is his heir, but the victims or families of the victims that are the heirs not willing to forgive, then the truth and Reconciliation Commission will break the granting of amnesty to the President recommendations independently and objectively, it is aimed so that the settlement of human rights violations do not continue to drag on weight which in turn can impede the achievement of the goal of national reconciliation;

113 d. That when perpetrators of human rights violations is heavy not willing and admitted his mistakes, not acknowledging the truth of the facts and are not willing to repent of his actions, then the perpetrators of human rights violations the weight lose the right to get amnesty from the President and the weight of the human rights violations cases may be submitted to the Ad Hoc HUMAN RIGHTS Court based on the provisions of article 43 paragraph (1) of the ACT the Court of human rights. e. in case of rejection of the petition that the amnesty by the President, this is not the end of the struggle to uphold justice over the heavy human rights violations, which occurred in the past, especially for the victim or his heir. Thus with the Amnesty petition turned open spaces and opportunities for victims or heirs to sue for the right to get compensation, restitution and rehabilitation to the State (vide Government Regulation No. 3 of 2002 on compensation, Restitution and rehabilitation of Victims of human rights violations against weight), as a follow-up of the provisions of article 35 of the ACT the Court of HUMAN RIGHTS; f. establishment of TRC in various Countries has created a shift in the concept of Justice (concept of justice) in the settlement of criminal cases, i.e. on the basis of Justice of retribution/revenge (retributive justice/prosecutorial justice) towards justice in the form of truth and reconciliation that is and leads to restorative justice (restorative justice/community based justice) which stressed the importance of this aspect of healing (restorative) for those who suffered because of the crime. g. That lately the United Nations (UN) began to encourage the efficient use of the concept of restorative justice more broadly within the criminal justice system through the United Nation Declaration on the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, it is in line with the goals and purpose of the TRC ACT, the establishment of which emphasizes the resolution of human rights violations against the weight via a mechanism outside the Court (out of court system). For that, it can be said that amnesty is good intentioned offender rights (good faith, goede trouw), who sincerely admit his error and apologized for his mistakes in the past, while the compensation, restitution, and/or rehabilitation is the right of the victim or his heir to be supplied by the State;


114 2. House of representatives: a. that the establishment of the law on TRC is based on consideration of: a thorough Resolution against human rights abuses which occurred during the passage of the ACT before the Court of HUMAN RIGHTS it is very urgent to soon due to dissatisfaction and political tensions should not be allowed to continue to drag on without settlement certainty. Deus Caritas Est with the truth about human rights violations which occurred during the passage of the ACT before the Court of human rights, through the truth and Reconciliation Commission is expected to be realized national reconciliation. It is also in accordance with article 47 of the ACT the Court about the legal basis of human rights, the establishment of TRC as a severe human rights violations settlement road, in addition to the things that become the authority of the Act the Court of human rights. b. that the purpose of the establishment of the TRC was to complete the weight of the human rights violations that occurred in the past on the outside courts, in order to realize the peace and unity of the nation; and to realize the reconciliation and national unity in the soul of mutual understanding. c. that the TRC ACT, is based on principles, namely, independence, and impartiality, honesty, openness, and peace; d. that the provisions in article 27 of the TRC ACT governing the awarding of compensation, restitution and/or rehabilitation to victims or victims ' families which is the right heir as the result of severe human rights violations in a petition for amnesty granted by the President, is the Equalization of the position between the perpetrators and the victims of human rights violations which, in turn, to create a sense of Justice in society. The amnesty is the President's constitutional rights provided by the Constitution (with attention to the consideration of the House of representatives) as the provisions in article 14 paragraph (2) of the Constitution. Therefore, victims of human rights violations which the culprit had got Amnesty reserves the right to obtain compensation and rehabilitation of the country; e. that the TRC did not aim solely to punish or embarrass someone (pillorying) or demanding, but more on 115 attempts to obtain the truth is ultimately beneficial to help restore the harmonious relationship between the offender, victim, and community that all three are basically a crime victims; Justice in the TRC was synonymous with the full disclosure (complete disclosure) of all incidents with confronts and bring together victims and perpetrators honestly by avoiding the law is complicated. The TRC process aims to prevent the recurrence of similar incidents in the future through the reconciliation process and not merely lead to pemidanaan on the basis of the existence of consciousness of humanity and sense of interdependence within the Community (community interdependence); Protection and restoration of rights of victims and the wider community are viewed as important as pemidanaan and/or rehabilitation of the perpetrator of the crime. f. That Article 44 of the TRC ACT, governing the weight of human rights violations has been disclosed and resolved by the Commission, the matter can not be submitted again to the Ad Hoc HUMAN RIGHTS Court, it is not contrary to Article 28D paragraph (1) and article 28I paragraph (1) of the Constitution since the TRC was not working substitution (replacing) against the Court of HUMAN RIGHTS in accordance with the provisions of the STATUTE of the Court of human rights. In this ACT the TRC does not control the process of legal prosecution but only governing: – the process of disclosure of the truth; -the process of awarding compensation, restitution, and/or rehabilitation to victims; and-the process of consideration of amnesty to the perpetrators; So, in order to provide legal certainty of heavy human rights abuses that have been revealed and resolved by the Commission cannot be submitted again to the Court of human rights. g. that the perpetrators of violations of human rights which were not willing to admit the truth and faults and not willing to repent of his actions, then the corresponding disenfranchised 116 got amnesty and can be presented to the Ad Hoc HUMAN RIGHTS Courts, as provided for in article 29 paragraph (3) of the TRC ACT. So, from the formulation of article 29 paragraph (3) they may be interpreted that the TRC ACT does not close the access of everyone to get the settlement through a process of judicial; h. That article 1 paragraph (9) of the TRC ACT, stating that the amnesty is forgiveness given by the President to the perpetrators of human rights violations is heavy with attention to the consideration of the House. It can be explained that in the universal understanding of amnesty in the TRC has a special meaning and a more scalable. Amnesty in the TRC was given only to those who actually admit fully his involvement in human rights violations related solely weight by political motivations (associated with political objectives) that are proportionate; 3. The former Chairman of the TRC [Maj. Gen. BILL new Godard?. Pol (Ret.) Drs. Sidarto Danusubroto, S.H.]: a. REPRESENTATIVES have been trying to run the tasks mandated by the people in accordance Statutes mandate MPR Number V/MPR/2000 with as well-as good, although they realize that those results not so as to provide maximum satisfaction to all parties concerned. The end result of the work of the PEOPLE'S REPRESENTATIVE COUNCIL (TRC BILL new Godard?) was seen still better when compared with the preliminary draft presented by the Government. b. Two important issue that invites long debate in the discussion of the BILL of the TRC, namely Article 1 point 1 and section 5 of the TRC ACT regarding disclosure of the truth and article 27 of the TRC ACT. Many people who feel "objection" dicantumkannya provisions on the disclosure of the truth in the law, because by doing so will open up opportunities for the loading of various issues of the nation that had attempted to "forgotten". While related to article 27, the objection comes from a victim and victim's family party, because this article 27 shall be construed mengeliminir the existence of article 19. c. new Godard? When discussing article 27, there are about 15 organizations of victims who expressed objections with the enactment of this chapter, including the Forum of communication Ex revised Dwikora Cabinet Minister victim of Abuse


117 Supersemar, the ranks of the TNI Advocacy Team AD, the ranks of the TNI Advocacy Team AU, Advocacy Team ranks of the TNI Advocacy Team AL, ranks of Police associations were Victims of the new order, the Struggle of rehabilitation of victims of the new order Regime, solidarity of victims of human rights violations, Action Committee for the liberation of Prisoners/Prisoners, Victims of events research institutes ' 65. Objection or rejection of the provisions of article 27 of the TRC ACT submitted by the victim and the institutions that fight for the rights of the victim are very well understood. But the political constellations at the time it makes the fraction-faction in the House accept the formulation of article 27 of the TRC ACT as there is now. Acceptance of the PARLIAMENT against the existence of this article is as a form of compromise so that the deliberations of the BILL not to go on the TRC-soluble and deadlocks, and feared witnesses alive who still remain will be reduced one by one, so the existence of the TRC later won't be too significant again because it was increasingly lost momentum. Therefore, when the BILL was passed, a majority of the members of the TRC new Godard? argues that the objections the parties still dissatisfied can actually be channelled through some of the container are already available such as asking "the right Test Material" to the Constitutional Court, as it did this time. d. Article 44 heavy human rights violations that have been disclosed and resolved by the Commission, the matter can not be submitted again to the Ad Hoc HUMAN RIGHTS Court. Severe human rights violations is "extra ordinary crimes" so that the settlement is also unable to use existing laws such as the CRIMINAL CODE, so that had to go through a "special path". To that end, in accordance with the mandate of Article 104 of LAW Number 39 of 1999 on HUMAN RIGHTS, had established a HUMAN RIGHTS Tribunal ACT, which is expected to protect HUMAN RIGHTS, both individual as well as society, and became the basis in enforcement, legal certainty, justice, and a feeling of safety, both for the individual as well as society, against human rights violations. In addition to the existence of the Ad Hoc HUMAN RIGHTS Court, TAP MPR Number V/MPR/2000 also mentions the necessity of the TRC were formed, which is extra-judicial institutions responsible for enforcing truth with 118 revealed abuses of power and human rights violations in the past, in accordance with the provisions of the law and legislation in force and implement reconciliation in perspective of common interests as a nation. The first thing that has become the consensus of all parties was that reconciliation, which includes the national reconciliation Ordinance, it is the mandate of the MPR Number V/MPR/2000 on the establishment and national unity, which continued into a package with the enactment of the ACT on an Ad Hoc HUMAN RIGHTS Court, and is part of the execution of the commands of the Constitution to all the organizers of the State, which is in line with the goals and purpose Amending the CONSTITUTION of the Republic of Indonesia in 1945 , especially Article 28A – 28J on human rights (human rights). 4. the Komnas HAM represented Abdul Hakim Garuda Nusantara, S.H., LL. M.: a. That Act No. 39 of 1999 on HUMAN RIGHTS courts mentions, but this HUMAN RIGHTS Court issues set further in the LAW Courts of human rights. b. HUMAN RIGHTS violations That happened in the past can be resolved through two legal avenues, to achieve justice. First Avenue, through the Ad Hoc HUMAN RIGHTS Court, its formation over the HOUSE'S proposal to the President, then the President issued Presidential Decree No.. Second Avenue, through the TRC. c. When true it's an uncontestable truth, then compensation and rehabilitation can not be linked to or not dikabulkannya amnesty granted by the President. d. Amnesty cannot be a condition for a payment of compensation and rehabilitation. Since the amnesty was a separate process and is conditional. Article 29 paragraph (2) of the TRC ACT mentions, "in which case the offender admits mistakes, acknowledge the truth of the facts, expressed regret over his actions, and is willing to apologise to the victim or the victim's family is his heir, but the victims or families of the victims that are the heirs not willing to forgive then disconnected the Commission granting amnesty recommendation 119 independently and objectively." So independently and objectively could not be attributed to compensation and rehabilitation, for compensation and rehabilitation that is the responsibility of the State and related to the facts found by the Commission on the truth. e. with regard to Article 44 of the TRC ACT that States, in terms of human rights violations which have been disclosed and resolved, the matter could not be submitted again to the Ad Hoc HUMAN RIGHTS Court, according to the applicant, contrary to article 27, article 28D, and article 28I UUD 1945. Article 44 as a result of the logical and adhered the conception that formulated in Article 29 paragraph (2) and (3). That Amnesty can only be granted by the President, and recommended by the TRC to the President when the terms were met. f. If the TRC in the process through the Ad Hoc HUMAN RIGHTS Court, then the Ad Hoc HUMAN RIGHTS court proceedings will be held in a petition for amnesty was denied. Related to article 7 paragraph (1) the letter g in the TRC ACT States that carry out the tasks referred to in article 6, the Commission has the authority to reject the application for compensation, restitution, rehabilitation, or amnesty, if the matter is already registered to the Court of human rights. So the rejection of the application for compensation, restitution, rehabilitation or amnesty that is associated with a lawsuit, already registered or not to the Court of human rights. g. If the case is not severe human rights violations may be resolved through the TRC, then it can be through the Ad Hoc HUMAN RIGHTS Court. But if in a particular case the problems of severe human rights violations, the TRC was resolved through more precise. The OPINION of the COURT considering that before entering into the substance of the matter, then it is fundamentally a decision lawmakers who determine the policy of reconciliation as a settlement against the weight of the human rights violations that occurred before the LAW Court of HUMAN RIGHTS, not only as a political decision but rather as a legal mechanism that is poured in one ACT of the TRC. This assessment of him is done mainly from the principles of law and the Constitution, which contains the philosophy and worldview


120 live nation which is spirit or the spirit of the Constitution. In addition, the adoption of chapter XA as a part of the Constitution with the Constitution second amendment in 2000, containing the guarantee and protection of human rights, also causes the TRC test the constitutionality of the ACT will be based on the guarantee and protection of HUMAN RIGHTS held that the CONSTITUTION of 1945, with which will be taken into consideration consistency with the guarantee and protection of HUMAN RIGHTS which became part of the Constitution. Considering that as a nation which reveals the philosophy and Outlook on life and State based on Pancasila as the law (rechtsidee) and State (staatsidee), then the openness of mind and heart to see it must be in the interests of the unity of the Republic of Indonesia, with a view to retrace a heavy human rights violations in order to uncover the truth, uphold justice and form a culture valuing human rights so that it can be realized reconciliation and national unity. Such things should be done with the right approach, by first understanding the conflict objectively despite having to tackle the possibility of no small risk, in order to be able to achieve a secure and peaceful conditions that allow development implemented the economic, social, political, and optimally, in hopes of being able to protect Nations Indonesia and spilled the blood of Indonesia. On the other hand, as a Member State that has received UN HUMAN RIGHTS principles are indeed contained in the Constitution, then in interpreting the Constitution, U.N. documents on HUMAN RIGHTS were also considered by the Court; Considering that on the basis of such a paradigm, the Court will give opinions against the petition of the applicant as follows; 1) article 27 of the TRC ACT that article 27 determines that compensation and rehabilitation as specified by article 19, namely the granting of compensation, restitution and/or rehabilitation, given in a petition for amnesty was granted. Explanation the article specifies that, if the offender admits mistakes, acknowledge the truth of the facts, expressed regret over his actions, and is willing to apologise to the victim or the victim's family of 121 as his heir, the perpetrators of human rights violations can apply for amnesty to the President. In the petition, the President may accept the petition, and victims granted compensation and/or rehabilitation. Whereas when the petition for amnesty was rejected, compensation and rehabilitation of the country, and are not given the matter dealt with up to be resolved based on the provisions of the ACT the Court of human rights. This setting contains the contradictions between one section with another section, most notably between the part that regulates: a. the offender has acknowledged the error, the truth of the facts and expressed regret and a willingness to apologize to victims. b. the offender can apply for Amnesty to the President. c. Plea can be accepted or rejected. d. compensation and rehabilitation or given only if the amnesty granted the President. e. If the amnesty was rejected, the case shall be submitted to the Ad Hoc HUMAN RIGHTS Court. Pencampuradukan and contradictions contained in article 27 of the TRC ACT is concerned the pressure is viewed on the perpetrators individually in individual criminal responsibility, even though the events of human rights violations before the enactment of the ACT to the Court of HUMAN RIGHTS, both the perpetrators as well as victims and witnesses more seriously is not easy to find anymore. Reconciliation between perpetrators and victims referred to in the legislation a quo became almost impossible to be realized, if done with individual approach to criminal responsibility. It should be with such an approach, which hung on the amnesty was simply a restitution, which is the compensation given by the offender or a third party. On the other hand, if the goal is reconciliation, with an approach that is not an individual, then that becomes the starting point is the existence of human rights violations and the heavy casualties that became standard for reconciliation by providing compensation and rehabilitation. Both approaches, in connection with the restitution, compensation, and rehabilitation could not be hung on one subject matter which has no relation. Because, Amnesty is the prerogative of the President, that the fulfilment of or subject to his refusal to the President.

122 the fact that there had been human rights violations, the actual weight is the obligation of the State to avoid or prevent it, and the incidence of casualties that should his country protected HUMAN RIGHTS, has been enough to give birth to a legal obligation on the part of both countries as well as the individual perpetrator could be identified to provide restitution, compensation, and rehabilitation to the victims, with no other requirements. The determination of the existence of the amnesty as a condition, the exclusion of legal protection and justice that is guaranteed by the Constitution. So also the practices and habits universally as already contained in the Basic Principles and Guidelines on the Right to A Remedy and Reparation for Victims of Gross Violations of International Human Rights Law And Serious Violations of International Humanitarian Law, which establishes the existence of adequate, effective and prompt reparation for harm sufferred, intended to promote fairness in the handling of severe human rights violations , by providing reparation in accordance with a proportionate weight violations and losses experienced. Such is the interpretation that is used to view Article 28A, article 28D paragraph (1), and article 28I paragraph (1), subsection (4), and subsection (5), so that the applicant's petition arguing about article 27 of the TRC ACT well-grounded. 2) Article 44 of the ACT Article 44 of the TRC ACT TRC reads, "the human rights violations that have been disclosed are heavy and resolved by the Commission, the matter can not be submitted again to the Court of human rights Ad Hoc." General Explanation of the TRC ACT can be inferred that the tasks of the TRC is to uncover the truth and uphold justice and to establish a culture of valuing HUMAN RIGHTS in order to realize reconciliation to achieve national unity, due to severe human rights violations before the enactment of the ACT to the Court of human rights. The TRC does not concern the legal prosecution process, but the process of regulating the disclosure of truth, awarding restitution and/or rehabilitation as well as giving amnesty considerations. The question is, does the TRC is a substitution or replacement trial or not. The general explanation is also expressly specifies that when heavy human rights violations have been disconnected by the TRC, then Court


the Ad Hoc HUMAN RIGHTS 123 is not authorized unless the petition is decided, the amnesty was rejected by the President. And vice versa if the Ad Hoc HUMAN RIGHTS Court has been disconnected, the TRC was not authorized to disconnect. Although it is said that the TRC is only an alternative to the Court of HUMAN RIGHTS and is not a law enforcement agency, then it is clear that he is an alternative dispute resolution mechanism, which would resolve a dispute of HAM in amicable and if successful will close the mechanism of settlement legally. Although the applicant quotes the propositions and principles of international HUMAN RIGHTS arguments against impunity, but the settlement of human rights violations in the case has been accepted in international practice, for example in South Africa, and was known also in customary law. Ketertutupan legal process through the Ad Hoc HUMAN RIGHTS Court in obtaining settlement on the TRC is a logical consequence of one alternative dispute resolution mechanisms so that need not be seen as a justification of impunity. Because, in General, the settlement with the mechanism of the law against human rights violations before the enactment of the LAW courts of the weight of the HAM, have experienced difficulty with the passage of a long period of time which caused the loss of the tools of the evidence for the basis of proof of individual criminal responsibility in the approach. The TRC also with the settings in the TRC ACT, aims to uphold justice as far as possible in the alternative resolution mechanism. Therefore, the Court held no visible basis and reason enough to grant it constitutional, especially since that provision only applies to severe human rights violations that occurred before the LAW Court of HUMAN RIGHTS; 3) Article 1 point 9 of article 1 of the TRC ACT number 9 of the TRC ACT provides that "Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives". Understanding severe human rights violations specified in article 1 of the TRC ACT number 4 as "violations of human rights as specified ACT the Court of HUMAN RIGHTS, which in article 7 stated that severe human rights violations that include the crime of genocide, a. b 124. Crimes against humanity." HAM Court ACT which refers to the Statute of Rome On the International Criminal Court to qualify the crimes of genocide and crimes against humanity as the most serious crimes in the international community as a whole. International practice as well as General Comment UN HUMAN RIGHTS Commission generally argue that amnesty is not allowed in human rights violations. It is said that although the TRC was meant to create conditions conducive to the existence of peace and national reconciliation, but the efforts need to specify restrictions against amnesty, that perpetrators should not be benefited by the amnesty. Amnesty seyogianya has no legal consequences throughout the victim's rights is concerned to obtain recovery (reparation), and anyway the amnesty should not be given to those who commit rights abuses and laws of international crime humaniter, which does not meperbolehkan amnesty and other forms of immunity. Although the General Comment and the report of the Secretary-general has not yet been accepted as binding law, it seems that such understanding is the Constitution which regulates the charge on the principles of the protection of human rights contained in article 28G paragraph (2) of the Constitution, namely the right to be free from torture, article 28I paragraph (1) of the Constitution, namely the right to life and the right not to be tortured, article 28 paragraph (4) and paragraph (5) of the Constitution, namely the protection of the , promotion and fulfilment of human rights is the responsibility of the State. However, article 1 the number 9 is only an understanding or definition that is contained in the General conditions, and is not a norm which is manage and relate to other articles, so that the applicant's plea concerning the conditions ruled out and will be considered further in conjunction with the articles related to the amnesty, as will be described below; Considering that although that petition was granted from article 27 of the TRC ACT, but because the entire TRC ACT operasionalisasi dependent and boils down to a successful article, then with alleged article 27 TRC ACT contrary to the Constitution and has no binding force of law, all of the provisions in the TRC ACT is impossible to be implemented. This happens because the existence of article 27


the 125 is closely related to Article 1 point 9, article 6 letter c, article 7 paragraph (1) the letter g, of article 25 paragraph (1) letter b, article 25 paragraph (4), subsection (5), subsection (6), article 26, article 28 paragraph (1), and article 29 of the TRC ACT. In fact, the existence of article 27 and article related to article 27 of the TRC ACT it is the articles that are very decisive work or whether the overall provision in the ACT so that the TRC by stating not to bind legally the TRC ACT article 27, then the implications the ruling will result in the entire article deals with the amnesty did not have binding legal force; Considering that the thing in question can do and does not violate the law, even if the petition were filed (petitum) Applicant concerns only Article 1 point 9, article 27, and article 44 of the TRC ACT, because it is essentially a legal event relating to testing legislation against the Constitution 1945 pertaining to the public interest which are erga omnes consequences his law, so it is not appropriate to view it as incidental ultra petita known in civil law concepts. The ban to try and break the exceeds what is required (petitum) contained in article 178 paragraph (2) and (3) HIR and the parallel in article 189 paragraph (2) and (3) RBg, which is the law that applies in the event the District Court and the Court of religions in Indonesia. It thus can be understood, as an initiative to retain it or not one of the rights that are privately owned by individuals or individual person is located on the will of the individual person or consideration, which cannot be exceeded. But even so, the development of the case and because the needs of the community, causing rules likewise not treated again absolutely. Considerations of Justice and propriety have also reason is, as it seems, among others in the ruling of the Supreme Court dated May 23, 1970, the date of February 4, 1970, and on 8 January 1972, as well as other more verdict, later affirmed that where Article 178 paragraph (2) and (3) and Article 189 Paragraph HIR (2) and (3) RBg not apply absolutely due to the obligation of the judge to be active and always try to give the verdict should really resolve the matter. Anyway in the civil suit is usually noted the petition of the plaintiff to the judge to drop the verdict seadil-fair (ex aequo et bono). Thus, the judge has discretion to drop the verdict over petitum. Moreover, for the constitutional Judge 126 run legal event in the case of testing the legislation related to the public interest. Although that apply a testing laws are individuals deemed to have legal standing, but the laws that appealed the test applicable General and concerns the interests of the wider community, as well as give rise to legal consequences wider than just about the interests of the applicant as an individual. In the public interest, the judge will question the Constitution should not be fixated only on petition or petitum asked. It likewise be common practices applied in other State constitutional court. For example, article 45 of the ACT of the Constitutional Court of South Korea (1987) reads, "The Constitutional Court shall decide only whether or not the requested statute or any provision of the statute is unconstitutional: Provided, That if it is deemed that the whole provisions of the statute are unable to enforce due to a decision of of unconstitutionality of the provision, requested a decision of of unconstitutionality may be made on the whole statute" (Constitutional Court break whether a constitutional law or any provision of the Act just who petitioned testing. In terms of overall provision in the legislation that appealed the test assessed cannot be implemented as a result of the ruling of the inkonstituionalnya article which appealed, then the verdict of inkonstitusionalitas can be dropped to the overall legislation). The Court has been applying it, for example, the ruling of the matter Number 001-021-022/PUU-I/2003 regarding the Testing of the Act of the Republic of Indonesia Number 20 in 2002 about Ketenagalistrikan; Considering that in addition to note the following points are to be found in the TRC ACT: 1. That the TRC was authorized to receive complaints, gathering information and evidence of severe human rights violations, calling witnesses and then clarify the offender/victim, determine the categories of HAM weight in a hearing open to the public (article 18 of the TRC ACT), draw conclusions about the existence of severe human rights violations, who the perpetrators and victims, as well as the existence of an apology the common explanation, which in the ACT of the TRC said is in the form that the TRC's verdict is final and binding. If


127 the TRC Decision contain a fulfilment of compensation, restitution and rehabilitation or [article 25 paragraph (1) letter a], then a final and binding ruling does not have the binding power (binding force) if the amnesty was rejected. The offender and the victim or the Government is not bound by the verdict that hung over the terms of the amnesty. Thus, the powers of the TRC is one thing that is uncertain. 2. Article 28 paragraph (1) States in terms between the perpetrators and the victims of severe human rights violations has been pardon and do peace, then the TRC can recommend to the President to grant amnesty. However, Article 29 paragraph (1) States in terms of the offender and the victim pardon, Amnesty mandatory recommendations decided by the TRC. With the use of the Word can in article 28 paragraph (1) and the obligatory words in article 29 paragraph (1), then there is no consistency in the TRC ACT that give rise to legal uncertainty (rechtsonzekerheid). 3. If the offender admits the truth of the facts, sorry and willing to apologize to the victim, but the victim does not forgive then TRC Amnesty granting disconnected independently and objectively. This state of affairs is something that does not provide the impetus for the disclosure of the truth and thus will not cause the presence of parties that are willing to reveal the truth and acknowledge the actual facts. 4. If the offender is not willing to admit the truth and error and is not willing to repent then the perpetrators will get amnesty and lose the right in question to be submitted to the Ad Hoc HUMAN RIGHTS Court. In the case of so there are likely to be dispute between the authority and the House, because the TRC Article 42 and 43 of the ACT in 2000, the States to determine the existence of severe human rights violations that allegedly occurred, to be tried by an Ad Hoc HUMAN RIGHTS Court should be through a political decision of the House. If in such case the authority RENEWAL based on Article 23 of the TRC ACT who have made clarification of the perpetrators and victims of severe human rights violations, which, according to the TRC ACT done with the form of decisions, which are final and binding, the power loss becomes successful or REVIVAL MEETINGS about the existence of such severe human rights violations has been enough to bring such cases to be tried in front of an Ad Hoc HUMAN RIGHTS Court without the need for the ruling of the HOUSE of REPRESENTATIVES.

128 alternative opportunites for Reconciliation offender to admit his deeds without dealing with the usual legal process. The offender had a chance to consider his attitude toward a case involving right. The TRC ACT does not provide the certainty that perpetrators will choose the TRC to settle the case. Article 28 paragraph (1) of the ACT of the TRC stated in terms between the perpetrators and the victims of human rights violations that occurred during the heavy before the enactment of the ACT to the Court of HUMAN RIGHTS has been pardon and do peace, then the Commission can recommend to the President to grant amnesty. From the provisions of article 1 point 2 of the TRC ACT can be concluded that for the existence of reconciliation must be met; (1) the disclosure of the truth, (2) recognition, (3) remission. So, in the third such uncertain met then there will be no reconciliation. If such a case is not revealed truth that is good about the event, place, time, and then obviously the offender reconciliation is not possible. The TRC ACT does not contain provisions that directly States that turned the amnesty will cause the perpetrator can be processed legally, but specifies that the rejection of Amnesty led to the perpetrators should be held accountable by law over his actions. The description of the overall it is clear that the ACT of the TRC does not encourage actors to resolve the matter through the TRC, because it contains a lot of legal uncertainty. In the meantime, if the victim or his heir, for not willing to forgive, can then report the offender to law enforcement based on evidence of a confession made by the perpetrators. Because this provision opens up the chance of occurrence of recognition that incriminating himself (self incrimination), it will be difficult to expect occurrence of reconciliation became a goal of the TRC ACT. The TRC ACT does not expressly regulate whether a reconciliation process can occur in the absence of the grant of a pardon by the victim or his heir. The provisions of article 29 paragraph (2) of the TRC ACT may pose problems in cases where the victim is thus an initiative to complain/report to the TRC. Should have been from the beginning, i.e. at the time when the victim chooses the path of REVIVAL MEETINGS to resolve the case, the victim has had the will to be willing to forgive the perpetrators. When the victims do not possess 129 to forgive the perpetrator then the judicial process is an alternative provided and not through the path of reconciliation. In other words, in the reconciliation required the willingness that is reciprocal, either from the offender or from the victim. 5. Against a complaint accompanied by an application for compensation, restitution, rehabilitation, or amnesty, the Commission is obliged to give a decision within a period of at least 90 days counted from the date of receipt of the petition (article 24 of the TRC ACT). Into the question of whether the matter should be decided by the Commission within a period of 90 days, including also the ruling about disclosure "truth over the heavy human rights violations" (vide Article 1 point 3 and article 5 of the TRC ACT). Article 25 paragraph (1) States that the decision of the Commission referred to in Article 24 may be either: a. grant, or to refuse to provide compensation, restitution, and/or rehabilitation, or b. provide recommendations in the form of legal considerations in the matter of the petition for amnesty. With the formulation of article 25 paragraph (1) of the mandatory period by the Commission terminated 90 days is a petition to get compensation, restitution, rehabilitation, or amnesty. They come with provisions of article 25 paragraph (3), (4), (5) and (6), and Article 26 which sets the length of time the process of the taking of the verdict against the petition for amnesty. While the results of his findings that is to decide on the form of the disclosure of the truth about the existence of severe human rights violations ACT TRC does not specify a time limit. With the limitation of the time to disconnect the application for compensation, restitution, rehabilitation, and Amnesty within 90 days, in that time period has elapsed while the disclosure of the truth is still in the process of investigation and clarification which takes more than 90 days if the petition for compensation, restitution and rehabilitation, Amnesty has to be disconnected first. A complaint or report can be submitted to the Commission, and after the existence of the Complaints Commission should conduct the investigation and clarification of what happened against both myself as well as the culprit.


130 Article 24 contains provisions that regulate when the Commission has received a complaint or report of human rights violations is severe, accompanied by a petition for amnesty, the word "accompanied" mean that the petition be filed along with the complaint or report of severe human rights violations. The issue is, the amnesty is only possible if it was clear who the perpetrators of human rights violations, and to perpetrators were given the right to ask or beg for amnesty, while the rights to determine there was on the President. How can occur at the same time the perpetrators who have not terklarifikasi can include the application for amnesty. The perpetrator of the offence may be determined after the new TRC reveals the truth of the existence of human rights violations in the heavy disclosure is found the culprit. Thus Article 24 this raises the confusion that can lead to legal uncertainty because in this chapter contained a 90 day timeframe. The new amnesty can be requested, it is recommended, and is given when it's uncertain who the perpetrators of the violations. The possibility of exposure to the perpetrator since early may occur if there is a "confession" about severe human rights violations as stipulated by article 23 letter a has occurred, or if the perpetrator and the victim between peace as stipulated by article 28. Article 24 the process in contrast to Article 11 letter a. of article 24 the process under article 18 paragraph (1) letter a, i.e. be an authority subkomisi investigation and clarification, it means an active korbanlah did complaint or report. While Article 23 a, where the perpetrator is active to make "confessions" became the authority of Amnesty considerations subkomisi. Thus, in juridis illogical, if the application for compensation, restitution, rehabilitation, and Amnesty put forward together with the complaint or report, that must be terminated at the latest within a period of 90 days commencing from the date of receipt of the application referred to Article 24 of the TRC ACT. Considering that all the facts and circumstances led to a lack of legal certainty, whether in the formulation or implementation of the possibility of strictly strictly in the field to achieve the goal of reconciliation is expected. Having regard to the considerations that have been outlined above, the Court held that the principle and the aim of the TRC, as set forth in section 131 2 and section 3 of the Act a quo, there may possibly be realized because of the absence of a guarantee of legal certainty (rechtsonzekerheid). Therefore, the court assesses legislation a quo as a whole contrary to the Constitution so as to be stated does not have the force of law as binding. With the alleged ACT of the TRC did not have the force of law binding on the whole, does not mean the Court closed the heavy human rights violations settlement efforts in the past through the efforts of reconciliation. Many ways in which it can be reached for it, among other things with the manifest reconciliation in the form of legal policy (legislation) that is in harmony with the Constitution and HUMAN RIGHTS instruments that apply universally, or by doing a reconciliation through political policies in the framework of the amnesty and rehabilitation in General. Recalling Article 56 paragraph (2) and paragraph (3) and Section 57 subsection (1) and paragraph (3) of the Act of the Republic of Indonesia Number 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316); JUDGE-Granted the petition of the Applicant; -Declare the legislation of the Republic of Indonesia Number 27 in 2004 about the truth and Reconciliation Commission contradicts the Constitution of the Republic of Indonesia in 1945. -Declare the legislation of the Republic of Indonesia Number 27 in 2004 about the truth and Reconciliation Commission has no binding legal force. -Order the loading of this ruling in the news of the Republic of Indonesia as it should be. The case was decided in the meeting which was attended by Judges Consultative 9 (nine) justices of the Constitution on Monday, December 4, 2006, and is spoken in the plenary session of the Constitutional Court are open to the public on the day this Thursday, December 7, 2006, Jimly Asshiddiqie, by our speaker and interim 132 members, Maruarar Siahaan, H.A.S. Natabaya, Harjono, Soedarsono, h.m. Laica Marzuki Dewa Gede Palguna, i.e.,. Abdul Mukthie Dawn, and h. Achmad Roestandi, each as members, assisted by Ngatrin as a substitute Clerk Alfius and attended by the applicant/applicant's Powers, the House of representatives, and the Government. K E T U A TTD. Jimly Asshiddiqie. MEMBERS OF THE TTD. TTD. H.a. S Natabaya. Harjono TTD. TTD. Soedarsono. H. M. Laica Marzuki. TTD. TTD. Abdul Mukthie Dawn. H. Achmad Roestandi. TTD. TTD. I Dewa Gede Palguna. Maruarar Siahaan. A DIFFERENT OPINION (DISSENTING OPINIONS) against a court ruling which granted the petition of the Applicant, the judge I Dewa Gede Palguna Constitution had a different opinion (opnions disesnting), as follows: On the position of the law (Legal Standing) The Applicant That in the determination of the parties that have a legal position (legal standing) as the applicants before the Court in the application for


133 testing legislation, according to the provisions of article 51 paragraph (1) of the ACT, the COURT or the parties in question shall be: (1) describes the credentials, whether as individual citizens of Indonesia, as the unity of Community law (all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation), as a legal entity, or as an institution of State institutions; and (2) the loss of rights and/or authority konstitusionalnya in the qualifications as stated on the figure (1) as a result of the enactment of a law. Meanwhile, as has been the establishment of the Court up to this point, to be said any loss of rights and/or constitutional authority, five conditions must be met, namely: (1) the existence of the right and/or the applicant's constitutional authority given by the Constitution; (2) the rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; (3) the constitutional Harm must be specific (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; (4) the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; (5) the existence of a possibility that by dikabulkannya the petition then losses will not be constitutional or not again occur. The TRC ACT is that legislation that is typical, because it aims to reveal the truth of the occurrence of violations of human rights in the past and then directed to the inception of reconciliation for the sake of the realization of national unity, as attested in the considerations weighing in particular the letters a and b and a general explanation of the legislation a quo. Thus, in essence, there are only two parties most concerned directly with the enactment of the legislation a quo, i.e. victims and perpetrators of human rights violations. Therefore 134 then, in essence, the two sides were also likely harmed the rights konstitusionalnya by the enactment of legislation a quo. That with such considerations, based on the evidence found during the trial, then the applicant V, VI, VII, and VIII prima facie be deemed to meet the criteria of the provisions of article 51 paragraph (1) of the ACT, i.e. the COURT as a group of individual citizens of Indonesia who have the same interests which considers the rights of konstitusionalnya impaired by enactment of a statute quo, where the assumption it must be proven leih. In addition, also the question is whether the Applicant in question (applicant V, VI, VII, VIII) meet five conditions the loss of constitutional rights as described above, it must be proven in the examination of the subject matter or substance of the petition. Thus, the position of the law (legal standing) the Applicant in question (applicant V, VI, VII, VIII) will be determined in conjunction with the examination of the subject matter or substance of the petition. About the subject matter or the substance of the Plea that the Applicant argued that that Article 1 point (9), article 26, and article 44 of the TRC ACT is contrary to the Constitution, arguing that in essence as follows: (1) Article 1 point (9) of the TRC ACT which reads, "Amnesty is forgiveness given by the President to the perpetrators of human rights violations that are heavy with regard for the consideration of the House of representatives" According to the Applicant, contrary to the Constitution because: a. severe human rights violations has the highest place in the form of a crime. Therefore, there is a provision which prohibits amnesty for perpetrators of human rights violations are heavy; b. definition of amnesty in the article does not comply with the principles recognised by the community of the civilized world community, and Indonesia is included in the community of civilized nations, so that the amnesty for perpetrators of severe human rights violations contrary to Article 28D paragraph (1) and article 28I paragraph (5) of the CONSTITUTION of 1945;

135 c. Amnesty for human rights violations that are heavily at odds with international law, but the formulation of article 1 point (9) of the TRC ACT thus makes it clear that the amnesty granted to perpetrators of human rights violations are heavy so the article is contrary to the law which has been recognized by the international community in which Indonesia is included as part of the community; (2) article 27 of the TRC ACT which reads, "compensation and rehabilitation as mentioned in article 19 can be given in a petition for amnesty was granted", contrary to the Constitution because: a. the provision of article 27 of the ACT the rights of victims of TRC over compensation and rehabilitation depend on the granting of pardon and not on the substance of the matter, also be indiscriminate casualties, and violate the collateral for the protection and equality before the law and respect for human dignity; b. based on the provisions of article 27 of the ACT of the TRC and its explanation, recovery (compensation and rehabilitation) can only be given in a petition for amnesty was granted, so have negated the rights of the victim against the victim's recovery but recovery is at all related to the Amnesty ada-tidaknya; c. the concept of amnesty in the TRC ACT article 27 requires the presence of the offender. Consequently, without the discovery of the perpetrator then amnesty is impossible given, so that the victim received no guarantees over the recovery. These provisions have also been mounting casualties in a State that is not balanced and depressed because the victim is given the weight requirements to obtain its rights, that is, depend on the granting of Amnesty; d. implications for the formulation of article 27 of the ACT will give TRC an injustice to the victim because of the victim must be hoping that the perpetrator had been made the victims suffer can get amnesty, so that the rights of victims over recovery (rehabilitation and compensation) could not get the victim and the victim must traverse another attempt that is not certain; e. Article 27 of the TRC ACT has made the position unbalanced between victims and perpetrators, and have the right to discriminate recovery (compensation and rehabilitation) attached to the victim and is not dependent on the perpetrator. Article 27 of the TRC ACT also did not appreciate the sacrifice


136 who had suffered violations of human rights that the weight of hers. Therefore, all provisions that restrict the rights of victims over the recovery and negate the obligation of the State to give the recovery it is one form of discrimination and inequality before the law and contrary to the recognition, guarantees, protection and legal certainty are fair; f. based on the above reasons, the applicant's constitutional rights, either as a victim or the victim's Companion, to get in front of the legal equation guarantees, collateral for the recognition, protection and legal certainty are fair, as well as guarantees to be free from discriminatory treatment had been violated by the provisions of article 27 of the TRC ACT. (3) Article 44 of the TRC ACT which reads, "the human rights violations that have been disclosed are heavy and resolved by the Commission, the matter can not be submitted again to the Court of human rights Ad Hoc", contrary to the Constitution because: a. Section 44 of the ACT of the TRC, which positioned the TRC as the same institution with a court, has closed the access of everyone to get a settlement through the judicial process; b. setting the Article 44 of the TRC ACT, which does not allow more examination in Court of human rights Ad Hoc when such events have been resolved through the TRC, has removed the obligation of the State in prosecuting perpetrators of human rights violations are heavy as provided for in international law, both contained in practice (sometimes international law) as well as international treaties (international resort); Against propositions that Petitioners, it first needs to be confirmed that the three provisions that appealed the test should not be read and understood in its own context and regardless of overall conditions in the ACT of the TRC. Therefore, in assessing the constitutionality of the TRC ACT stipulations who petitioned the testing referred, first need to be advanced the deliberations as follows: 137 o that, as affirmed in article 1 paragraph (3) of the CONSTITUTION of 1945, Indonesia is a country of law. As the State of the law, then the respect, protection and fulfilment of human rights is one of the conditions attached to that cannot be ignored; o that the respect, protection and fulfilment of human rights is thus proven came not only from its own chapter on human rights in the Constitution (chapter XA) and the promulgation of a number of laws regulating of human rights as well as those related to the efforts of the respect, protection and fulfilment of human rights, but also with the diratifikasinya international legal instruments relating to human rights; o that in connection with the participation of Indonesia as parties (party) in various international agreements, including with respect to human rights, article 4 paragraph (2) of the Law Number 24 year 2000 concerning international treaty says, "in the making of international agreements, the Government of the Republic of Indonesia based on national interest and based on the principles of mutual benefit, the position of the equation, and pay attention to, whether national law or applicable international law". Thus, the participation of Indonesia into the various international legal instruments in the field of human rights that implicitly indicates three things: (a) confirmation that the instruments of international law that is in line with the Constitution which respect, protect, and ensure the fulfillment of human rights; (b) Indonesia is therefore bound to implement all the provisions of international legal instruments; (c) attachment to implement all the provisions of international legal instruments in question, in which Indonesia is a party (a party), is not based on the doctrine of the supremacy of international law over national law but solely because the provisions of the various international legal instruments in question have been accepted as part of the national law of Indonesia through the process of ratification, so it must be assumed the existence of 138 praanggapan that the provisions of international law does not conflict with the Constitution , unless the contrary be proved where things did not happen during the process of examination of the application for a quo; o that in practice the implementation at the national level, the provisions of the various international legal instruments concerning human rights violations, in casu in relation to the question of amnesty, has developed two opinions or interpretations:-first, the opinion stated that the perpetrators of violations of human rights that the weight does not apply the grant of Amnesty; -Second, the opinion stated that the presence of clause in a number of international legal instruments in the implementation of its provisions, according to hand over the national law of each State party to mean that the granting of the Amnesty against the perpetrators of violations of human rights which made possible the weight of all the things that are not expressly stated is forbidden in international legal instrument concerned and all of it by the concerned country is viewed more beneficial to achieving the goal of greater than punishing the perpetrators; That with the reasons above and by assessing the TRC ACT provisions third petitioned testing (article 1 point 9, article 27, article 44) in the overall context of the provisions of the ACT of the TRC, then against the petition for a quo I argue: • the constitutionality of article 1 9 of the TRC ACT does not conflict with the Constitution not only because the authority to grant amnesty, according to the Constitution, it is the authority of the President after hearing the HOUSE'S consideration , as set forth in article 14 paragraph (2) of the Constitution, but also because the grant of amnesty in the context of the overall provisions of the ACT are intended to ensure the TRC to achieve a greater goal, namely, the achievement of national unity for the sake of reconciliation; • Article 27 of the TRC ACT is contrary to the Constitution but not entirely for the reasons as postulated an applicant but because the provisions


139 article 27 TRC ACT does not provide the legal certainty and fairness both to victims as well as perpetrators of human rights violations. The provisions of article 27 of the TRC ACT does not give legal certainty and fairness to the victim because the granting of compensation and rehabilitation are hung on to something that has not been identified, i.e. Amnesty entirely is the authority of the President to grant or not having heard of the consideration of the HOUSE though for example has been proven that concerned is a victim. It is also unfair to the victims, because on the one hand, the granting of amnesty to perpetrators of human rights violations which weight implicitly expressed as rights [article 29 paragraph (3) of the TRC ACT], but the compensation and rehabilitation was not implicitly mentioned as rights. On the contrary, the provisions of article 27 of the TRC ACT also does not give the certainty of law and justice to the perpetrators, because there are no guarantees in the legislation a quo that perpetrators will automatically obtain amnesty after admitting the mistake, admit the truth of the facts, expressed regret over his actions, and is willing to apologize to the victim and the victim's family or who is his heir. It is because, according to the provisions of article 29 paragraph (2) of the TRC ACT, if the victim or the victim's family is his heir not willing to forgive the "Commission is severing the grant recommendations independently and objectively". The legislation a quo does not explain what is meant by the phrase "the Commission of the termination of the grant recommendations independently and objectively". However, by following a reasonable reasoning, in the phrases there remains the possibility that the perpetrator is not recommended to get amnesty, though he has acknowledged the mistake, admit the truth of the facts, expressed regret over his actions, and is willing to apologize to the victim and the victim's family or who is his heir. • Article 44 of the TRC ACT does not conflict with the Constitution because it is precisely on the provisions of article 44 that is one important key to achieve the purpose of the establishment of the TRC ACT suspended, namely whether the parties (victims and perpetrators of human rights violations that weight) will choose the way out of Court (in casu the settlement through the truth and Reconciliation Commission) or through the Court of human rights Ad Hoc.

140 considering that although it has sufficient reason to declare the article 27 of the TRC ACT is contrary to the Constitution, the petition for a quo cannot immediately be declared successful because of the following reasons: • the petition could be declared successful whereas there are no doubts about the position of the keragu law (legal standing) the parties submit an application so that the application for the fulfilment of goals achieved i.e. 's return to the constitutional rights of the applicant to be broken as a result of the enactment of the provisions of the legislation which is unconstitutional or , Sha-whether constitutional rights, the petitioner no longer harmed. Meanwhile, in conjunction with the application for a quo, based on existing evidence during the trial, the status of the applicant as victims of human rights violations that the weight is not fully proven. It is because Article 1 point 5 of the TRC ACT defines victims as, "individual people or groups of people who are suffering physical, mental, or emotional, economic loss, or have a waiver, reduction, or deprivation of rights, as a direct result of the violation of human rights; including the victim is also his heir ". During the trial, the things that are revealed are that the Applicant, as mentioned above (applicant V, VI, VII, VIII), suffering physical, mental, or emotional, economic loss, or have a waiver, reduction, or deprivation of rights, as a direct result of an event or conduct in the past. The question of whether the event or conduct in question is a violation of human rights that heavy? In this doubt arises because: a. on the one hand, article 1 point 4 of the ACT States that the TRC is a violation of human rights is the human rights violations referred to in the law number 26 of 2000 on Human Rights Courts (Law Court of human rights). According to the LAW of the Court of HUMAN RIGHTS, article 7, the human rights violations that include (a) the weight of the crime of genocide; (b) crimes against humanity. So, in relation to the Applicant a quo, the question then is whether the Applicant this is crime victims of genocide or crimes against humanity?


141 the problem is, according to Article 43 paragraph (2), along with an explanation of article 43 paragraph (2) of the ACT, the HUMAN RIGHTS Tribunal to determine whether there are human rights abuses in the past, which means including the determination of whether the crime is a felony crime of genocide or crimes against humanity, is determined by the opinion of the House of representatives. Thus does "suffering physical, mental, or emotional, economic loss, or have a waiver, reduction, or deprivation of rights essentially" experienced by the Applicant at the top is a result of the violation of human rights, it was hung on the attitude or opinion of the House of representatives. So that, seen from this point of view, the Applicant a quo has not been able to fully qualify the position of law (legal standing) as intended by article 51 paragraph (1) of the ACT the COURT; b. on the other hand, the TRC ACT States that the TRC has several subkomisi, one of which is subkomisi investigation and clarification of the human rights violations that weight (article 4 letter a). Subkomisi this, according to Article 18 of the TRC ACT, the letter f has the authority "to determine the categories and types of violations of human rights that heavy" referred to in the LAW of the Court of human rights. With this provision means, subkomisi klarifikasilah authorized the investigation and determine if there has been human rights violations in the past and at the same time determine the type, i.e. whether the offence in question is a crime of genocide or crimes against humanity. Seen from this point of view any "suffering physical, mental, or emotional, economic loss, or have a waiver, reduction, or deprivation of rights essentially" experienced by the Applicant a quo, at this point, it is uncertain whether it is the result of human rights violations that are heavy or not, because the TRC (including subkomisi the investigation and clarification of the human rights violations that weight) up to this point have not yet formed; c. description on the letters a and b above indicate that the determination of the legal position of the Applicant a quo, or anyone who experienced the events similar to those experienced by the Appellant, it has no-ambingkan by two provisions of the Act and no 142 settlement. Indeed, this Court can only interpret that as the selected settlement to resolve violations of human rights that occur in the weight of the past is through the TRC then applicable provisions in the TRC ACT is, since Article 47 paragraph (1) of the ACT the Court of HUMAN RIGHTS said, "the human rights violations that occurred before the enactment of the weight of this Act does not cover possible settlement done by the truth and Reconciliation Commission". However, if this interpretation held by the Court, the Applicants nonetheless a quo cannot be determined the position of the law (legal standing) at the moment of having to wait for the formation of the TRC in advance and with the assumption that the TRC would later determine that what was experienced by the Applicant a quo was as a result of violations of human rights, whether it be in the form of the crime of genocide or crimes against humanity. • Furthermore, even supposing any at the moment the TRC has been formed and has determined that what was experienced by the Applicant a quo was as a result of human rights violations in the past, and thus the Applicant a quo qualified legal position (legal standing) as intended by article 51 paragraph (1) of the ACT the application for the fulfilment of the Constitutional Court, the petitioner a quo for article 27 of the ACT of the TRC will cause any harm on the Applicants a quo. This is due to the existence of the provisions of article 29 paragraph (2) of the TRC ACT, which rumusannya has been cited above. A person or a group of people, according to the normal reasoning, much less likely to want pengakui mistake or admit the truth of the facts that he ever did human rights violations in the past and then apologize without any assurance that with recognition and demand maafnya that person or group of people will get amnesty. The result further, then there is an absence of human rights violations in the past will also be difficult to unfold, when such disclosure is thus a condition or requirement which cannot be removed to be able to restore it does against the rights of the Applicant a quo. As such, then the fulfilment of article 27 143 with the opposite of the way the mind of the Applicant a quo, as already outlined above, and without looking at the overall context of the TRC ACT, thus result in negating the possibility of the Applicant a quo obtain compensation and rehabilitation, which means the Applicant a quo became more disadvantaged. Therefore, based on the entire consideration of the above, follow the path of the mind of the Applicant a quo, pemohonan this should be declared inadmissible. Because, at least with the declared this petition inadmissible, still more likely for an applicant to obtain compensation. CLERK OF THE SURROGATE TTD. Alfius Ngatrin.

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