AHRC-OLT-026-2009

Mr. Susilo Bambang Yudhoyono
President of the Republic of Indonesia
Presidential Palace,
Jl. Medan Merdeka Utara Jakarta Pusat 10010
INDONESIA

Tel: +62 21 384 5627, ext. 1003
Fax: +62 21 231 4138, 345 2685, 345 7782
Email: presiden@ri.go.id

Dear Mr. President,

Indonesia: Government should enforce the law regarding student disappearances of 1997/98

The Asian Human Right Commission is writing to urge you to ensure the establishment of an ad-hoc human rights court regarding the case of abductions and forced disappearances of student activists between 1997 and 1998. After the Indonesian parliament has decided to recommend the establishment of an ad hoc human rights court as required by the Human Rights Court Law (No. 26/2000) the matter of issuing a presidential decree for such an establishment is now pending with you.

Between 1997 and 1998 24 students and other activists had been abducted by the Army Special Forces Command because of their activism in the struggle for change and democracy in the New Order government. This movement finally led to the reformation of the Indonesian state towards a modern democracy and the victims that gave their lives for this cause deserve justice for the human rights violations they suffered. However, until now not even a judicial process has been provided. The National Commission for Human Rights (Komnas HAM) has conducted formal inquiries, which concluded that this case represents gross violations of human rights.

The AHRC is also concerned about the approach of the Attorney General's Office (AGO) in regard of its role in this process. An interpretation of Law No. 26/2000 in the spirit of human rights standards, which the Republic of Indonesia has admitted to in international law, would have required the Attorney General (AG) to initiate investigations and prosecution. However, until now he has failed to do so. The AHRC is seriously concerned about the repeated denial of responsibility by the AG.

After the recommendation by the parliament there are now no political barriers to prevent the AG in conducting immediate investigations and the involvement of an ad hoc investigation team from outside the AG's Office that has independence and integrity. The AG needs to involve civil society members to ensure reliable investigations and a pro justice perspective on this case.

The AHRC has monitored the situation and notes that some progress has been made on this and other cases of gross human rights violations. In its plenary session the House of Representatives ended the ongoing debate about the procedure in bringing justice to this case with the firm decision to establish an Ad Hoc Human Rights Court. This decision is now the political basis and legal foundation to complete the establishment of the Court. The decision is also a legal mandate for the President, according to Article 43 paragraph 1 and 2 of Law No. 26/2000 to declare:

1. Gross violations of human rights occurring prior to the coming into force of this Act shall be heard and ruled on by an ad hoc Human Rights Court.
2. An ad hoc human rights court as referred to in clause (1) shall be formed on the recommendation of the House of Representatives of the Republic of Indonesia for particular incidents upon the issue of a presidential decree.

The Constitutional Court in its decision on February 21, 2008 required:

The body which determines the necessity or otherwise of the establishment of the ad hoc human rights court for a particular case according to the locus and tempus involvement of political institutions that reflect the representation of the people is the Parliament. However, Parliament, in recommending the establishment of an ad hoc human rights court must consider the results of the investigation from the authorities, in this case the National Commission For Human Rights and the Attorney General. (unofficial translation)

The AHRC welcomes the decision and the recommendation from the House of Representatives of September 28, 2009. On October 20, 2009 re – elected president Susilo Bambang Yudhoyono and vice president Boediono will be inaugurated as president and vice president for the period of office of 2009-2014. The new leadership is obligated to implement the recommendations of the House of Representatives as a matter of priority in their agenda for human rights enforcement in Indonesia within the first 100 days of holding office.

For the above reasons the Asian Human Rights Commission urges the new leadership of President Yudhoyono and Vice President Boediono to take the following actions:

1. Issuing of a Presidential Decree on the establishment of the Ad Hoc Human Rights Court for abduction and enforced disappearances of student activists of 1997 - 1998
2. The families of 13 of the victims still require clarification of the whereabouts of their disappeared family members. This information needs to be established by a credible police investigation and with active support of the AGO. If the quality of work by these fundamental bodies of justice is in question, a Presidential Decree on the establishment of an independent Commission for Missing Persons on these 13 victims should be issued.
3. With the current legislation, victims of disappearances are being provided with compensation only after the perpetrators have been found guilty (Government Regulation No. 44/2008 on Compensation and Victim's assistance). However, international human rights standards entitle victims to compensation as soon as the violations of rights have been proven. The inquiries by the National Commission for Human Rights (Komnas HAM) have clearly established this case and a Government Regulation should be enacted to ensure the compensation for victims at this point in order to avoid unjustifiable delays in justice in regard to their entitlement.
4. The ratification of the International Convention for the Protection of All Persons from Enforced Disappearance.
5. Reforming the institution of the Attorney General's Office to ensure the compliance of their staff with their mandate, including the initiation of investigations into any alleged cases of human rights violations. Until such a practice is established the credibility of the AGO in Indonesia is seriously in question, as is the government's commitment to reforms for the protection and promotion of human rights.

Thank you for your kind attention.

Yours sincerely,

Basil Fernando
Director
Asian Human Rights Commission, Hong Kong

Asian Human Rights Commission
19/F, Go-Up Commercial Building,
998 Canton Road, Kowloon, Hongkong S.A.R.
Tel: +(852) - 2698-6339 Fax: +(852) - 2698-6367