On 26 August 2022, the Indonesian President, Mr Joko Widodo (‘Jokowi’) (see photo on top), issued Presidential Decree No 17/2022 on the formation of a team for non-judicial settlement of past serious human rights violations. Human rights organisations criticised the decree, arguing the government tries to avoid a legal process against the perpetrators. They emphasised that the restitution of victims is mandatory for the government under international human rights law and cannot substitute a legal accountability process against the perpetrators through national human rights mechanisms.
The team, consisting of a steering team and an implementation team (Article 5), will have three main tasks (Article 3). Firstly, to reveal and conduct a non-judicial settlement of past gross human rights violations based on data and recommendations made by the National Human Rights Commission (Komnas HAM) as of year 2O2O; Secondly, recommend the restitution of victims or their relatives. The restitution comprises physical rehabilitation, social aid, health insurance, scholarships, and make recommendations on other forms of support (Article 4). Thirdly, recommend measures to prevent gross human rights violations from recurring.
The steering team will be headed by the Coordinating Minister for Political, Law and Security Affairs, Mr Mahfud MD, and Coordinating Minister for Human Development and Culture, Mr Muhadjir Effendi and include ministers of several other agencies, such as the ministers of finance, human rights, and social affairs (Article 6). The team shall instruct and supervise the implementation team. It will decide which recommendations will be passed on to the president (Article 8).
Dr Wibisono, former UN Special Rapporteur on the Occupied Palestinian Territories and former Permanent Representative of Indonesia to the UN, and Mr Ifdhal Kasim, former Komnas HAM chairperson, will lead the implementation team (Article 7). The team will be responsible for disclosing and analysing past gross human rights violations based on data and recommendations from Komnas HAM. They can also make recommendations for the restitution of victims as well as for the prevention of the re-occurrence of serious human rights violations (Article 9). The disclosure of the cases will focus on the background, causes, and effects of past serious human rights violations without aiming at identifying and prosecuting the perpetrators (Article 10).
The decree has set the time frame between 26 August and 31 December for the team with a possibility of extension.
Public criticism of the Decree
President of Indonesia in his state address commemorating the 77th Anniversary of the Republic of Indonesia said that he had signed a Presidential Decree regarding the formation of a Non-Judicial Settlement Team for Past Serious Human Rights Violations. This speech received strong reactions from human rights activists. The presidential decree regarding the non-judicial team for the settlement of past severe human rights violations is seen as having the potential to strengthen the impunity of perpetrators of human rights violations.
There is no dichotomy of judicial and non-judicial terminology in the two principal regulations regarding handling serious human rights violations, namely Law 39/1999 on Human Rights and Law 26/2000 on Human Rights Courts. The mechanism for non-judicial settlement was previously contained in the Law on the Truth and Reconciliation Commission. However, this law has been annulled by the Constitutional Court. There has been no reference to regulations or standard norms governing other ways of resolving past serious human rights violations. Based on Law no. 26 of 2000 concerning the Human Rights Court, past serious human rights violations must be tried through a court mechanism. Meanwhile, the government seems to prioritise the non-judicial handling of past serious human rights violations.
Deputy V of the Presidential Chief of Staff (KSP) Jaleswari Pramodhawardani has denied that the Presidential Decree (Keppres) doesn not have a clear legal basis. He said that the President could issue a non-judicial settlement policy as an executive measure. This is based on the urgent nature of fulfilling the rights of victims and their families. According to him, various studies explain that several Truth Commissions that have existed worldwide were formed through administrative measures, including presidential decrees. According to him, the judicial and non-judicial settlement pathways are complementary (complementary), not substitute (substitutive), to ensure a comprehensive case settlement. If the judicial mechanism is oriented to retributive justice, the non-judicial tool is oriented to victim recovery (victim-centred).
The Coordinating Minister for Politics, Law and Human Rights, Mahfud MD, declared that one of the reasons for issuing the Presidential Decree for the non-judicial team for the resolution of past serious human rights violations is still technical juridical problems that occur. Namely, the Attorney General always asks Komnas HAM to repair the investigation file. But on the other hand, Komnas HAM feels it has had enough. If it is not corrected, the Attorney General’s Office will lose as before. Therefore, until Komnas HAM and the DPR find a formulation, the government, through the presidential decree, will open a non-judicial route as a substitute for the Truth and Reconciliation Commission.
The public still remembers how the Indonesian President appointed people who were strongly suspected of being involved in serious human rights violations to become officials. This Presidential Decree is suspected of being a shortcut for the government and might be the government’s only way to serve the past serious human rights violators to avoid the judicial mechanism. Only one new Human Rights Court will be held in the two periods of the Jokowi President’s leadership since 2014. It has also reaped some bad records that make the public pessimistic that this process will provide justice for the victims. Starting from determining the location of the Court in Makassar instead of Papua, the minimal involvement of victims, and the worst thing is that there is only one suspect whom the Attorney General’s Office will bring to the Court.
The Civil Society Coalition doubts the effectiveness of this Presidential Decree. What are the expected outputs from the team? Results such as analysis of human rights violations to remedies have been regulated in Law 26/2000 on the Human Rights Court. Suppose regulations and institutions at the law level alone do not succeed because they are not functioning optimally, especially by a team formed without adequate public participation. They also emphasised that the idea of a team being created seemed to show the government’s concern for the victims even though it wanted to obscure the resolution of these grave human rights violations was not the first idea of President Joko Widodo and his staff. At least there were initiatives such as the Reconciliation Committee and the Truth Disclosure Committee in 2015, the National Harmony Council in 2017 to the Integrated Joint Team on the Settlement of Alleged Past Serious Human Rights Violations in 2018. Discourses such as the Presidential Work Unit for Handling Serious Human Rights Violations (UKP-PPHB) also evaporated like the previous concepts because it was made to whiten the mistakes of the perpetrators, not restore the victims of serious human rights violations in Indonesia.
The Civil Society Coalition urged the Indonesian government to cancel the Presidential Decree on the Establishment of a Non-Judicial Settlement Team for Past Serious Human Rights Violations and ordered the Attorney General to immediately follow up on the results of investigations into past human rights violations from the National Human Rights Commission (HAM) by conducting a transparent investigation. And be responsible for past Serious Human Rights Violations.
The House of Representatives (DPR) of the Republic of Indonesia immediately recommends or proposes the establishment of an Ad-hoc Human Rights Court for past serious human rights violations. It is also crucial that the government and DPR RI discuss the TRC Bill and open the broadest possible meaningful public participation, especially survivors and families of victims of serious human rights violations following the mandate of the Constitutional Court Decision in Case No. 006/PUU-IV/2006.
 Koalisi Masyarakat Sipil: Maria Catarina Sumarsih (Keluarga Korban Tragedi Semanggi 1/ Family of Semanggi 1 Tragedy Victims), Suciwati (Istri Munir/ Munir’s wife), KontraS, KontraS Aceh, Imparsial, Insersium, Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI), LBH Jakarta, Human Rights Working Group (HRWG), Perhimpunan Bantuan Hukum dan HAM Indonesia (PBHI), Amnesty International Indonesia, LBH Bandung.