Human Rights and Law in Asia

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Jakarta, Bukit Duri. Preparing Dinner. They live as a small community in this place. (henri ismail/Flickr)

Question and Answer Session

Shyama Venkateswar

Thank you very much, thank you all for your comments. I want to open up the floor, if you would all identify yourselves as you ask your questions.

Question

I have a question for Mr. Falaakh. You mentioned about the situation faced by Indonesia, for example about the human rights violations committed by the military personnel. It seems that Mr. Falaakh is suggesting that there should be cooperation between the government and the House of Representatives which is not working right now, since the government is always in danger of being toppled down. If cooperation should take place, I'm afraid this could also jeopardize efforts towards resolving human rights and legal problems too because legal problems could be treated as a political issue and not a legal issue.

Mohammad Fajrul Falaakh

Yes, I think that is exactly what is going on there in Indonesia, this is my personal opinion. With the new law on human rights ballot from January of this year, authorizing the House of Representatives to issue a recommendation, not really issue a recommendation, to issue a decree on the establishment of ad hoc human rights court. Of my opinion, it is already political. What is interesting is how that particular provision was achieved, say in the last year and to my knowledge that sort of movement in Indonesia towards a political handling of human rights, or legal cases, is very much a part of the political process that has been undergoing in Indonesia. I can, for instance, recall that in 1998, for instance, the interim Habibie Government issued emergency governmental regulations instructing the establishment of human rights courts or human rights tribunal under the pressure of the international community. And what is interesting is that those regulations contained the non-retroactive provision. And that sort of provision reappeared in the law no. 39 of 1999 that was then criticized and then repealed and then replaced by law no. 26 of this year (2001). But without mentioning whether the non-retroactive principle is valid however, looking into the constitutional amendment, that is the two conflicting clauses there, in the constitutional amendment, containing/regulating human rights. So it has become political. And with the new law passed in January, giving the House of Representatives the right to establish human rights court, the issue of human rights courts abuses, or the trial of human rights abuses, has become a political one. So in my opinion, well I can understand and fully support the statement that was made last week by the Human Rights Watch, urging President Wahid to establish human rights courts, but it is interesting to see that actually it is the House of Representatives who should establish the human rights courts, while, on the other hand, the President has also the right to establish human rights tribunal within the existing courts. So President has made that move already.

Question

The parliament, the CBR committee said that it formally approved ad hoc tribunals for East Timor and Tangjung Priok and they already acted.

Mohammad Fajrul Falaakh

But in my opinion, the House of Representatives should have established the courts rather than just recommending the establishment of the courts. So it’s different. So if I would make a recommendation or statement on behalf of whomever I would just urge the two institutions. On the one hand, the House of Representatives of Indonesia is in the right position to establish human rights courts, ad hoc human rights courts, on the other hand, if that sort of human rights courts could not be established, the executive, the president, has the right to establish human rights tribunal within the existing criminal justice system. But then, if the executive could do that, then that would really help, because the perpetrators, those who were involved in past human rights abuse, largely are military personal, meaning that they include the police. Before August 2000, the police, the Indonesian National police was part of the Indonesian armed forces. So, as was usual in Indonesia, these military officials would be tried under the military, criminal justice system. So even if the President has the right to establish the human rights tribunal within the existing ordinary courts that doesn’t help because it should be established within the existing military, criminal justice system as well to be able to try military officers.

Question

I have a question probably will most directly link to the Thai and Indonesian presentations going through thinking how the structure of government. One question in the Thai case, in drafting the new constitution, what role did organized lawyers play? Was there a role played by progressive bar associations and I note that there is a new bar association in Indonesia that might be impacting developments there. Second question, specifically on the Thai experience, was there any effort to include in the new Thai constitutions means to address past human rights abuses such as the massacre you mentioned of the students. So those are the two questions.

Kittipong Kittayarak

The first one, listening to my colleagues from the Philippines talking about the lawyering process in the Philippines, I think about my country that lawyers are taught to be conservative. I think its everywhere like that but in Thailand, a lawyer will be very much criticized that because they have been trained to study the law but not the philosophy of the rule of law. They have not been taught that that law should be a vehicle, a means towards a goal. They have just been taught to apply the law as it is. So if the laws are unjust, as it is in most of the cases in our part of the world that the law are the products of the authoritarian regime. The lawyers that have been taught in the system where they have never been taught to think of the rule of law, then they would be part of the process of maintaining the status quo. So that is the case in Thailand. And in drafting the constitution, not only did lawyers not participate in the process, they are themselves barriers to change. So myself, I am also involved with the legal reform initiative in Thailand. To try to make a legal reform in a country you need a champion or in our culture, aristocratic figures. And I could not, looking in to the lawyers system, the whole system, I could not find a champion of that so I had to go to the former Prime Minister who is very well respected. Even though among the lawyers, especially the judiciary, they are much against the concept, but with the public support they have to go along. With the constitution, there are so many provisions regarding judicial reform. It was very controversial at the time. The judiciary was very dissatisfied with the reform, with the more accountability, more transparency. So your first question is that it is not as much as it should be. I hope in the future it will be better.

The second one I think really is the weak point in the process in Thailand. I don’t know if it has something to do with the culture or not. But there’s a strong group of relatives of those who died or disappeared in the massacre going on in 1992 and 1976. They tried to demand for compensation but they never have, I mean the government doesn’t respond very much to their demands. Which I believe that are partly, I don’t know whether the majority of the country is thinking that they should dwell in the past or not. I fully agree that these kinds of issues, we should be able to bring those with some abuse to justice. That is what we should do. I don’t know if the majority of people don’t want to think about the past, just maybe part of the culture. I don’t know, maybe it's not good. In the constitution there is a human rights commission established but it doesn’t mention that even though we have the new constitution the process of implementing is very difficult because of the transitional period. The institutions that are existing now, many of them are against the concept. For instance, if a human rights commission and many other organizations like the constitutional court, the process is that the nominations have to be sent by the Senate committee and then the Senate has to endorse it. But the Senate, the old Senate, came by appointment by the old regime, so they tried to water down the effort, the change. And because the Thai people, they kind of lack the patience to understand much about the democratization process, they think by having the constitution, they won. Once they saw our test going on, our appeals going on when there is the building of the dam or the pipelines, that effect the livelihood of the people, and that process of the local people, probably the majority of the people in that this is never before that we have it. In the old days things go smoothly. We don’t have to deal with this kind of thing. So I think, in this process you have to try to educate the people. Education is, I think, the most important. See with education how to give them information, how to make them understand the longer time frame will be good for the country. This is very good because we are talking about decentralization, we are talking about village people who, by themselves, people say that is the spread of corruption because in the village they don’t have any mechanism to control the influential people to come to power. So in your question you pick up the weakness of this system.