Vaudine England, Jakarta – Government ministers admit they were caught off guard by a constitutional amendment which appears to provide legal protection to the generals and other military officers behind last year's violent rampage through East Timor.
Prosecutors say they will name all those officers being held responsible tomorrow, with the view to an eventual trial.
International perceptions of Indonesia's ability to mount a credible trial have been shattered by the constitutional change. "The article definitely disturbs our efforts," Foreign Minister Alwi Shihab said. "The Ministry of Foreign Affairs will find it very difficult to explain the article to the world in the midst of our effort to avoid an international tribunal."
The United Nations High Commissioner for Human Rights, Mary Robinson, insists such a tribunal must be called if Indonesia shows itself unable to prosecute offenders.
Human Rights Minister Hasballah Saad also expressed regret about the amendment which, along with promising protections such as the right to life and freedom from oppression, also promises freedom from prosecution for crimes committed when laws against such acts did not exist.
Legal experts are divided as to whether the amendment would prevent prosecutions of charges such as crimes against humanity in the East Timor case. Some say Indonesian law has always held murder, kidnapping and torture to be illegal. Crimes committed in the past could still be prosecuted now, they say.
Others note that whatever legal precedent is eventually established, the constitutional amendment makes the kind of trial envisaged by the international community over East Timor atrocities much more difficult to achieve.
"What is needed is a political consensus between the Government and the House to open such a possibility," Mr Hasballah said. The newly amended Article 28 (I) of the 1945 constitution stipulates "... the right to not be punished under the retroactive principle is a human right that cannot be modified".
"I cannot understand the background for the Assembly to draft those words in the first place," Mr Shihab said. "But I guess there should be some exceptions to this article so we can still continue with the trial. Maybe we should find a way to maintain the ongoing cases which need to be solved, otherwise it will be very difficult to avoid an international tribunal."
Amnesty International believes apparent attempts to shield perpetrators of past human rights violations "would effectively render all the recent efforts to end impunity in Indonesia meaningless". Human Rights Watch said the actions of the People's Consultative Assembly members in passing the amendment were irresponsible.
It said the amendment would mean that if and when the Attorney-General's Office succeeded in bringing officers who orchestrated the Timor destruction to court, they would be tried for murder, while their East Timorese followers could face heavier charges of crimes against humanity. "Crimes against humanity are so serious that non-retroactivity doesn't apply to them," said Sidney Jones, Asia director of Human Rights Watch.