« Peluang Individu Mengadu Di Komisi HAM Internasional | Depan
Oleh csp | 9 August 2008
By Cekli S. Pratiwi
This research have been presented by Writer on Young Scholar Workshop (Australia Indonesia Government Research Partnership available on www.aigrp.anu.edu.au/scholars/scholars. Research on Truth and Reconciliation Commission with emphasize on the historical injustice done for several countries especially South Africa. But a research that is emphasizing on the reparation issues in relation with amnesty is few and therefore necessary to explore this subject especially after the General assembly of United Nations accepted the General Principles on reparation in 2005 and the Impunity Principles that accommodates amnesty. A normative-comparative research on the regulation of reparation and amnesty is necessary to analyse the research question that are to what extent are the reparations and amnesty procedures as being used by the TRC in Indonesia acceptable according to international law standards compared with the TRC in South Africa.
In Indonesia, the TRC of Indonesia mediates reparation measures and amnesty for historical injustice and its regulated by The Act Number 27 Year 2004. Since this regulation could impact on reparation condition of many victims, it is important to analyze on both subjects and formulating suggestions to improve their regulation. Incomplete rules of International Law on reparation have significant impact on some impairment of it regulation i.e. ineffective reparation and reparation granting after amnesty. On the other hand, an amnesty granting to the wrongdoer is tend only to be a political interest because it’s granting mechanism is mainly on president’s consideration instead of the Committee of Amnesty. Inadequacy to inform about the law or lack of information about protection to the victim’s rights based on International Human Rights Law and Humanitarian Law reduce willingness of the victim to demand their rights. Amnesty as a form of impunity is unavoidable during transition period of a country from authoritarian to democratic system even if the form is incompatible with law principles of International law and human rights law.
Those problems are great challenge for Indonesia because it has a constitution that accommodates human rights protection and recently ratified the CCPR and because the protection of human rights is widely recognized as a fundamental aim of modern international law, which holds states liable for human rights violations and the abuses they or their agents commit. This study have compare between regulation with it’s practice on the procedure of reparation and amnesty that regulated by TRC of South Africa under the promotion of National Unity and Reconciliation Act no. 34 of 1995 (the Act), and by regarding that TRC is raised significant doubts among human rights groups, academics and victim’s organizations because from the beginning of its work, initiatives aimed at healing and reparation sprang up all over the country. However TRC amnesty procedure both internally as internationally criticized and differences between the nature of the transition in Indonesia and South Africa were not taken into account.
Having regard to the research result mentioned above, today the victims of historical injustice in Indonesia faced the huge problem because the Act Number 27 Year about TRC 2004 was cancelled by Judicial Constitution. As the result, not only amnesty block the victims’ right to get reparation but also no victim has opportunity to enjoy his or her rights anymore caused by historical injustice. Therefore the researcher need and interest to watch the political process during the reformation of the TRC Act. Development activity in order to find a New Model for TRC in Indonesia will very useful for others.
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