Jakarta – Lawyers defending Indonesian military officers accused of human rights violations in East Timor have vowed to use a controversial constitutional amendment to save them from prosecution.

"Yes, definitely, I will take advantage of the new article to help my clients," Mohammed Assegaf, one of 15 lawyers defending officers linked by Indonesian rights investigators to the violations in East Timor, told AFP.

The country's national assembly last Friday ratified an amendment to the 1945 constitution, which prevents an individual from being prosecuted under laws that did not exist when a crime was committed.

The amended article 28(I) states that the "right not to be prosecuted under laws which are applied retroactively" was one of several "human rights which cannot be diminished in any circumstance." The amendment created an uproar among local and international rights groups, who fear it will be used to prevent the prosecution of military officers for human rights violations in East Timor, Aceh and elsewhere in the archipelago.

Much of their anxiety has focussed on violations during the bloodshed that followed East Timor's vote to break away from Indonesia last year.

Pro-Jakarta militias, believed to be backed by Indonesian military officers, went on a rampage of killing and destruction and forced hundreds of thousands of East Timorese to flee their homeland after the August 30 vote.

An inquiry by Indonesian rights investigators linked more than a dozen senior military officers, including the then armed forces chief General Wiranto, to the rights violations. However no human rights law existed in Indonesia when the violations were committed.

But Assegaf said he foresaw a problem in Indonesia's legal system if the lower house of parliament, the House of Representatives (DPR), passes a law to establish a human rights tribunal, because in international law such tribunals override questions of retroactivity. The proposed law is still being discussed in the 500-seat DPR.

Assegaf said he saw the constitution as overruling any law passed in the "Absolutely, the constitution is stronger. It is the foundation of our law," he said. "And the amendment means it is no longer possible to try someone retroactively," he added.

Another member of the officers' defence team was more circumspect. "We will wait and see who the attorney general names as suspects in the East Timor case first," said Yan Juanda.

"We need to look closely at several aspects of the amendment and how they relate to international legal principles, especially those pertaining to international human rights tribunals," he said. "If our clients are only indicted as suspects under criminal law, the question of retroactivity won't be an issue because the criminal code is not something new," Juanda added.

"However if they are charged with crimes against humanity, with human rights crimes, we will be considering article 28(I)." The attorney general's office is preparing to try military officers linked with East Timor rights violations under Indonesia's criminal code.

UN High Commissioner for Human Rights Mary Robinson has said that if the Indonesian legal system does not bring those blamed for the Timor violence to justice, she will call for an international tribunal. Late Tuesday Attorney General Marzuki Darusman was handed a final list of Timor suspects, drawn up by the 79-member investigation team.

A third lawyer Mulyadi defending the officers said it would be "easy" to defend his clients under the criminal code "because the criminal code only recognises the "commission" of a crime, i.e. whoever 'commits' a crime, not who ordered the crime." "So it will be difficult to find the higher ranking officers guilty as they didn't commit the crime themselves – most of them weren't there." Mulyadi also said he would not hesitate to use the new constitutional amendment if his clients were to be charged with human rights violations. "I will do anything to defend my clients, including invoking Article 28(I)," he said.

Mulyadi said he was also confident his clients would walk free if they were tried for crimes against humanity. "It will be a long and difficult trial to prove that crimes against humanity were committed in East Timor by our clients," he said.