Aisah Putri Budiatri – The month of September is associated with some of the worst violations of human rights in Indonesian history. These include the 1984 Tanjung Priok incident (12 September 1984), the Semanggi tragedy (24 September 1999), and, of course, the anti-communist killings of 1965-1966, which began after the killing of six military generals on the night of 30 September 1965. These cases involved murder, imprisonment, torture, sexual violence, forced disappearance, and other crimes against humanity. They created longstanding trauma for victims and their families.
In addition to these incidents, there are many other unresolved human rights abuses, such as the 1989 Talangsari incident, the kidnapping of activists in 1997/1998, and human rights violations that occurred during conflicts in Aceh and Papua. Of these cases, only Aceh has seen any progress toward investigations and efforts to rehabilitate and compensate the victims. This is because Aceh has a local form of a truth and reconciliation commission (TRC), made possible by Law No. 11 of 2006 on the Government of Aceh, which was passed as a result of the Helsinki Peace Agreement signed by the government of Indonesia and the Free Aceh Movement (GAM) on 15 August 2005.
Other unresolved cases involving alleged gross violations of human rights also require a truth and reconciliation process to resolve them. But plans for this reached a dead end in 2006, when the Constitutional Court annulled Law No. 27 of 2004 on the Truth and Reconciliation Commission (the TRC Law).
Human rights activists had challenged two articles in the law, relating to amnesty for perpetrators of human rights violations and the rights of victims to legal remedies. Instead of cancelling the problematic articles, the Court decided to annul the entire law. Rights activists were furious and accused the Constitutional Court judges of failing to understand the urgency of the TRC Law.
The cancellation of this law not only thwarted non-judicial efforts to resolve past cases of human rights violations but has also meant the special autonomy laws in Papua and Aceh cannot be fully implemented. Law No. 21 of 2001 on Special Autonomy for Papua, for example, mandates the formation of a Papua TRC to respond to human rights violations in the region. But the government has said that the Papua TRC requires a TRC Law as its legal basis, so it cannot be established.
In Aceh, meanwhile, the TRC was established through the region's special autonomy status, under Qanun No. 17 of 2013. But the absence of a TRC Law at the national level has made its work ineffective. To investigate the many human rights violations in Aceh and provide reparations to thousands of victims, the Aceh TRC needs support, including budgetary support from the central government. This can only be done by a national law.
To uphold human rights and achieve justice for victims across Indonesia, the government must establish an independent TRC, and that will require legislation. Although the 2004 TRC Law has been abolished, this does not mean that a new law cannot be formulated. Indeed, there is a strong legal basis for passing a new version: MPR Decree No. V of 2000 on the Consolidation of National Unity and Law No. 26 of 2000 on Human Rights Courts.
New hope
Hope for a new TRC Law has reemerged in President Joko "Jokowi" Widodo's second term. In November 2019, Coordinating Minister for Political, Legal and Security Affairs Mahfud MD said that he would prioritise a new TRC Law to provide a legal basis for the formation of a new TRC. The bill was therefore added to the 2020 National Legislation Program (Prolegnas) and the government has reportedly completed a draft bill.
It is good news that the TRC bill is on the 2020 Prolegnas but this does not mean the process will run smoothly. In fact, the TRC bill has repeatedly appeared on the Prolegnas lists since 2007. It was included in the 2007, 2008, and 2009 Prolegnas lists, and the 2010-2014 and 2015-2019 Prolegnas longlists. But discussions never progressed far.
Given the long timeframes involved in passing legislation, if Jokowi and Mahfud MD are really serious about establishing a TRC, Jokowi should consider passing a presidential regulation (perpres). Since the MPR Decree and the Law on Human Rights Courts already clearly mandate the formation of a TRC, a perpres is legally sufficient to establish a TRC (because a perpres can be passed to implement a statute).
It is important that there be no more delays in establishing a TRC. The most serious cases of alleged rights violations are decades old, and survivors are getting older. Delaying the formation of the TRC will only make the investigation process more difficult and mean fewer victims are rehabilitated or compensated. In the case of Papua, delays could also have serious consequences for escalation of the ongoing conflict.
Establishing a TRC will be no easy matter, it will likely face spirited debate and opposition. Just four years ago, the government's landmark national symposium on 1965 was met with strong rejection by military veterans and anti-communist groups and failed to go anywhere. What happened in 2016 could happen to a new TRC too.
The government must be prepared for these obstacles if it is serious about establishing the TRC and upholding human rights. It will require a strong commitment and encouragement from not just the government but all elements of society.
Mahfud MD appears to have a deep understanding of the urgency of establishing the TRC, and a genuine desire to make it happen. Hopefully, this time, government efforts will succeed. Victims of past human rights violations in Indonesia have been made too many broken promises.
[Aisah Putri Budiatri is a researcher in the Centre for Political Studies at the Indonesian Institute of Sciences (P2P LIPI). She holds a master's in political science from State University of New York at Albany. Her research focuses on political parties, the legislature, elections and the Papua conflict.]