Transitional Justice in the Asia-Pacific (16 page)

At the same time, the KPK proposal advocates forgiveness and reconciliation for local perpetrators of relatively minor crimes at the community level and encourages the use of various customary legal mechanisms for this purpose. These include payment of
sayam
and
suloeh
, material reparations paid by the guilty party for, in the first case, physical injury and, in the second, civil disputes where no physical injuries have occurred. In both cases the reparations are to be paid after a community adjudication and reconciliation process presided over by the village head and other dignitaries.
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However, the KPK's supporters are also adamant that such mechanisms of forgiveness and community reconciliation would not apply to serious violators of human rights. Borrowing from the South African model, they argue that any TRC should:

Clearly name those most responsible for gross human rights violations. There shall be no amnesty recommendations for those most responsible for gross human rights violations. The Commission shall work in a complementary manner with the courts for serious crimes, namely, crimes against humanity, genocide and war crimes. The Commission shall give legal immunity recommendations only to the perpetrators who have confessed their crimes during the process of reconciliation facilitated by the Commission.
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Despite such advocacy by the KPK and similar groups, after more than seven years of the peace process, the TRC for Aceh has not yet been formed
. In practical terms, there are at least three reasons why the TRC has stalled. First
,
at the international level, there seems to be a widespread view that the peace process in Aceh is a success, and that conflict has more or less ended. As a result, there is disengagement by international actors who might otherwise promote transitional justice mechanisms, and reluctance to endorse measures which might undermine the peace that
has been achieved. In a meeting with civil society activists in Aceh in late 2009
, Martti Ahtisaari, the former president of Finland and chief mediator in the 2005 Aceh negotiations, argued that Aceh did not need a TRC and that such an agency might stimulate resistance which could harm the peace process.
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His argument was that the reintegration of former combatants into civilian life was running well, democratic transition in Aceh had proceeded peacefully, and economic indicators were positive. Thus, there was no urgency to put a TRC in place. His views prompted a heated response from the floor.

Second
,
Jakarta continues to drag its feet and has still failed to provide a regulatory framework. Despite both the MoU and the LoGA requiring the TRC in Aceh to be established as part of a national body, the government in Jakarta has not yet placed before the national parliament a bill to replace the law invalidated by the Constitutional Court in 2006. The preparation of a national TRC bill falls under the authority of the
Ministry of Human Rights and Law. Ministry staffers have long been working on the draft and have held public hearings on its content in many places, including Jakarta, Papua and Aceh. One of the hearings was conducted with local government and civil society activists in Aceh on 17 July 2009. Those attending made various criticisms and suggestions for changes to the bill, but overall they were satisfied with its general shape and could see that the bill had responded to the main weaknesses (including the issue of impunity) that had been identified by the Constitutional Court in the original law. The Ministerial team seemed receptive, and promised that it would revise the bill by the end of July 2009, prior to submitting it to parliament in August 2009. Yet in December 2009, the TRC bill did not appear on the National Legislation Program list (
prolegnas
) of bills to be discussed by the parliament in 2010. Then, on 15 October 2010, the Directorate General (
Dirjen
) for Bills Harmonization of the Law and Human Rights Ministry, submitted the TRC draft to the National Secretariat
and to the President, but not to the Minister of Law and Human Rights; on 8 March 2011, the Minister withdrew the draft. Clearly, there are obstacles within the Ministry of Law and Human Rights itself.
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At the very least we can conclude from this that the bill is not a high priority for the government, and it is likely that the bill is running into powerful internal opposition.

Third, Aceh government players have given few signs of treating the TRC
as a priority issue, either by lobbying Jakarta hard to establish a national framework, or by taking steps to establish an Aceh-based TRC. In particular, governor Irwandi Yusuf and deputy governor Muhammad Nazar were both elected in large part due to their records of staunch opposition to the central government during the conflict years. However, after they came to power, they neglected many of the campaign issues they raised during more difficult times in Aceh, including human rights. Early on in their term, they made some statements endorsing the establishment of a TRC for Aceh, but subsequently this issue largely disappeared from their public statements, and neither individual seriously urged the Indonesian government to push the National TRC bill forward. In January 2009, Irwandi refused to include a local TRC bill in the list of priority bills for the Aceh parliament in the upcoming year, despite the bill's inclusion having been endorsed by thirty members of the outgoing 2004–2009 parliament. Likewise, Zaini Abdullah and Muzakkir Manaf have given few indications that the issue is a priority for them.

At the same time, members of Aceh's civil society have continued to push for a local TRC process, with some success. They hoped to achieve their goal soon after the 2009 elections when Partai Aceh members were elected to local parliaments in great numbers across the province. Initially, members of the new Aceh parliament agreed to include a draft
qanun
(local regulation) as part of their priority list for the whole 2010 to 2014 period, but when the time came they did not list it as a priority
in either 2010 or 2011 (in the Indonesian system, there is typically a great backlog of bills and only those in the regional priority list (
prolegda
) will make it onto the legislative agenda). Several prominent local parliamentarians have also publically stated that they support such a bill, including the powerful Chairman of Commission-A of the Aceh parliament, Tgk.
Adnan Beuransyah of
Partai Aceh. A group of prominent local politicians including the speaker of the Aceh Parliament, Hasbi Abdullah of Partai Aceh, signed a statement in December 2010 – in response to demonstrations by victims and human rights organisations – promising that parliament would discuss a TRC bill by June 2011, but this did not happen even by the end of 2011. There was a major breakthrough in mid-2012, however, when the provincial parliament agreed to establish a TRC, and discussed a draft regulation to establish such a body. The draft was based on a version provided by civil society groups, modelled on the KPK work of some years earlier. For a time, it seemed that a TRC would be formed soon, but the situation was once more thrown in doubt when leaders of the parliament in late 2012 said that they were suspending their preparation of the regulation – eliciting condemnation by human rights activists – and then, in early 2013, announced that they would pass it sometime in 2013.
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The early optimism among some civil society activists about the prospects of an Aceh-specific TRC process has thus been replaced by periods of deep disappointment, interspersed with renewed hopefulness, given the intermittent support by the PA and provincial parliament for such a process.

In addition to having a record of very slow legislative action on any issue, we may assume there are at least two reasons the new Aceh government and parliament have dragged their feet in creating a local TRC in Aceh. First, in legal terms, the absence of national regulations as a framework for a local TRC is certainly a significant problem that would, as explained above, limit the mandate of a local commission and
consequently reduce the meaning of the justice it could provide. In particular, it would limit the ability of the Commission to compel high-ranking officials from Jakarta to provide testimony. Governor
Irwandi Yusuf did not spell out his objections to an Aceh-based TRC in quite these terms but stated that it was necessary to wait for national legislation because ‘The conflict was not among the Acehnese people, but between the central government and Aceh’. Speaking at the fifth anniversary of the Helsinki MoU, he also indicated that a TRC would be a far too costly exercise for Aceh to afford by itself.
²⁷
Likewise, when they announced their suspension of their bill in late 2012, parliamentarians said it would not make sense for the local TRC to be established prior to the formation of the national body.

Second, and more important perhaps, are the implications that a TRC would have for former GAM members. It is likely that unfettered truth seeking would uncover evidence of violence committed by former GAM combatants, which could discredit the former independence movement. Some former leaders of the movement are surely also aware that despite the amnesty provision in the MoU there is still a possibility their members could face trial for past crimes. It is well known that during the conflict years many GAM fighters tortured or killed suspected informants (
cuak
) and residents with ethnic Javanese backgrounds.
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Many feel that this factor explains the reluctance by many of Aceh's new political elite to embrace truth and reconciliation mechanisms.
²⁹
Indeed, one of us (Fajran Zain) has witnessed one Partai Aceh member, during an NGO-organised training on transitional justice and the TRC, confide to his friends that ‘we should be careful with this, we could be hit’. More tellingly yet, in 2012 when the Aceh parliament deliberated the TRC
bill which had been initiated by civil society groups, the relevant parliamentary committee (of which PA had half the members) struck out ‘non-state actors’ from among the categories of perpetrators of human rights abuses to which the bill could apply, meaning that the commission would only deal with abuses for which state actors or corporations were responsible.
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Overall, it is hard to avoid concluding that the legal complications that have entangled the TRC have been welcomed by key international, national and Aceh actors. Underlying the foot-dragging on the TRC appears to be a shared view that setting up such a body would potentially undermine the peace process. Thus, Jakarta and Aceh have continued to trade responsibility on the issue while taking no concrete actions to establish a TRC. As we shall discuss in the next section, this situation has led some local victims and human rights organisations to initiate their own reconciliation and truth-telling processes.

Closely related to the issues of prosecution and truth telling, but implemented far more successfully, were the amnesty provisions of the Helsinki MoU. Unlike in many transitional justice situations, in which amnesty is granted to government officials and allies who are human rights perpetrators, in the Aceh case there was a one-sided amnesty that applied only to former rebels and GAM members.

Two weeks after the MoU was signed in Helsinki, President
Susilo Bambang Yudhoyono signed a Presidential Decree (No. 22 of 2005) gran-ting a general amnesty to persons involved in GAM activities. Approximately 500 prisoners received remission and immediately released from jail on 17 August 2005. In total, more than 1,400 prisoners were amnestied and released. The amnesty typified the power configuration underpinning
the agreement. It was granted to GAM members by the government, in a procedure approved by the constitution and which, in the eyes of government officials, was akin to a pardon for crimes against the state. It was never intended to be a general amnesty absolving all persons of responsibility for past crimes in the conflict and so was not as controversial as, for instance, the amnesty clause in the 1999 Sierra Leone peace accord.
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During both the negotiations and the implementation of the MoU, it was never suggested by either party that the amnesty would apply to individuals from the government side. For government officials, such a provision would have been an admission of culpability that would have undermined their previous assertions that government troops had operated lawfully and within a framework for protecting human rights. That the amnesty applied only to GAM was, perhaps ironically, a sign of the government's strength.

There were, however, two major controversies concerning the am-nesty. The first and most serious question was how liberally the amnesty would be applied. It soon emerged that not all persons with GAM affiliations were released from jail. It was disputed whether the amnesty should apply to GAM members imprisoned for any crime carried out on behalf of the movement, as GAM argued, or would be restricted to those imprisoned only for narrowly defined political crimes against the state. The Minister of Justice and Human Rights at the time,
Hamid Awaludin, repeatedly ruled against granting amnesty to persons imprisoned for crimes such as robbery and murder, saying that it applied only to those convicted of
makar
, or treason. Accordingly, the government initially refused to release from prison more than 100 individuals associated with the rebellion who had been convicted for general or civilian crimes as diverse as murder, narcotics possession and smuggling.

The head of the AMM was empowered by the MoU (article 5.2.f) to rule on disputed cases, but it was up to the Indonesian government, as
the sovereign power, to release prisoners from jail and annul their convictions. Moreover, although AMM leaders knew they had a ‘strong card in the fact that the Head of the AMM could actually decide whether or not a person should be amnestied’, they wanted to avoid using this card because they believed it ‘would not have been conducive to the peace process and the mutual trust building between the parties.’
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Eventually, the AMM brought in a Swedish judge,
Christer Karphammar, to facilitate resolution of the outstanding cases by deciding on a list of the individuals to be amnestied, to which the two parties would then agree. Working with another AMM member, Karphammar emphasised quiet diplomacy, persuasion and absolute confidentiality (even secrecy) in his deliberations, coordinating with senior representatives of the two parties and with
Pieter Feith, the head of the AMM. Judge Karphammar and his assistant worked through court documents and other materials. The judge based his decisions on two sets of criteria: connection of the crime to GAM's struggle and its seriousness.
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On this second matter, the judge himself, largely guided by his own ‘ethical judgment’, determined that persons convicted of ‘cold-blooded’ crimes against civilians would not be pardoned. In fact, much of the time for assessment was spent on determining whether a prisoner's crime had been carried out on behalf of the movement.
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