By: Latitude Febiana Sugianto
Various human rights violations that happened in Indonesia have left many problems that have not been resolved. Victims of human rights violations (direct or indirect victims) face difficulties in accessing justice through the current criminal justice system. The difficulty of proving the wrongdoing of the perpetrators resulted in the non-functioning judicial process for the perpetrators, let alone the recovery process of damage for the victims.
However, these human rights violations must still be resolved and the settlement mechanism that must be done is not easy. Retributive justice cannot provide satisfaction to the victim. An offer that is considered new is restorative justice. This model began to be considered as the settlement of criminal cases capable of providing justice for the parties; perpetrators, victims and society. In various criminal acts, such as domestic violence, children in conflict with the law, and traffic accidents, restorative justice has been implemented. Now, the application of restorative justice is tested in the cases of human rights violations. Can restorative justice solve the cases of human rights violations? This writing wants to examine the opportunities for restorative justice in resolving cases of human rights violations in Indonesia.
In accordance with the 1945 Constitution (UUD 1945) Article 1 paragraph (2), it is stated that sovereignty is in the hands of the people and carried out according to the Constitution. It is clear that Indonesia is a country based on the Constitution which regulates all aspects of life with regulations that start from the sovereignty of the people delegated to the state, which is geared toward the sovereignty of the people themselves. Although in fact the existing tools are considered sufficient, in fact, the law still does not show the conditions as expected.
More than 57 years after the Universal Declaration of Human Rights banned all forms of torture and crimes, inhumane acts or degrading treatment or punishment, violence is still considered common. Today, on Human Rights Day, let us promise ourselves, to the principles of the Universal Declaration of Human Rights, to rededicate ourselves in removing violence from the face of this earth.
Seeing the condition of existing law enforcement, most people witnessed how many legal cases have not been resolved completely. As is often heard, when the court process is underway, appeals are protracted, the emerging issues about the judicial mafia and allegations of bribery have been able to free the defendant from the law and so on. Cliche reasons always arise from the court, which has been decided according to applicable legal procedures, so that the formal juridical is not wrong. The difference between the court and other agencies is that the court in carrying out its daily duties is always positive and actively paying attention to and implementing various legal regulations that apply in a country.
The Declaration of Human Rights for Indonesia has existed since ancient times. However, it was only made clear on the basic guidelines of this country, in the opening of the 1945 Constitution, in which there were human rights as human beings, both as individual beings and social beings, all of which became inherently in their lives, and emphasized in Pancasila. When seen from the formation of the declaration of Human Rights, the Indonesian’s was formed earlier than the UN Human Rights which was only formed in 1948.
Almost every country has problems in its efforts to uphold human rights, including in Indonesia. Indonesia has lately been in the spotlight of other countries in the world for the enforcement of human rights. The issue of upholding human rights is always in line with the problem of law enforcement, in which this becomes one of the crucial things that are most often complained about by citizens at this time; weak law enforcement.
The society seems apathetic to see almost all legal cases on a large and horrendous scale, either for the ones related to crime, economic crime, or human rights violations. No cases have been resolved thoroughly and satisfactorily. The society hopes that, for the sake of truth, the law must always be enforced.
Human rights violations in Indonesia are still an interesting issue to be discussed in the academic podium as well as legally reviewed because until now, this still leaves a fundamental problem on how to deal with victims of past human rights violations. Just say, the Tanjung Priok case. Various problems that arose in the judicial process, alleged bribery to get to peace term, the free verdict for the defendant, until the mechanism of compensation and restitution for victims of human rights violations at Tanjung Priok, still have not found a light.
Another one, the Talangsari case in Lampung. Until today, Talangsari is a hamlet that is left behind from development. The facilities and infrastructure there are far from expectations. Electricity, roads and education are still very worrying. Not to mention the psychological pressure for decades being victims of human rights violations. In fact, there is no revenge within the victims, they only want state recognition of the massacre and restoration of the rights of the victims.
Still in the memory, the shooting of Trisakti students, better known as the Tragedy of Semanggi I and II. Human rights violations in this case have not yet been accomplished. Who should be responsible for the shooting? To this day, it has not been able or cannot be appointed by hand, let alone decided by the court. Although in fact, life has been lost in vain.
From some examples of past human rights violations above, it can be concluded that human rights violations have a significant impact on victims. Whatever type of human rights violations committed, such as murder, attempted murder, enforced disappearance, torture, and other actions, it still causes harm that must be suffered by the victim.
Therefore, the victim is the party who must get a lost recovery from the occurrence of human rights violations. The punishment for perpetrators of human rights violations is one form of justice that must be obtained by victims. The state’s recognition of the occurrence of human rights violations and compensation for victims of human rights violations is something that has been coveted. In fact, the state should be responsible for guaranteeing human rights, including the rights of victims of criminal acts.
Various efforts made to get justice (in the cases of human rights violations) have not found a bright spot that can protect victims. Until a thought emerged about the possibility of implementing restorative justice in human rights violations.
According to Arif Gosita, victims refer to those who suffer physically and mentally as a result of other people’s actions that are against their own interests or those of others, who seek fulfillment of their own or other people’s interests that are against the interests of the sufferers human rights. What “they” mean by Arif Gosita here are:
- Victims of individuals or individual victims (primary victimization).
- Victims who are not individuals, for example an agency, organization or institution (secondary victimization).
- Victims of public involvement, social harmony, and government implementation of violations of state regulations and provisions (tertiary victimization).
Victims were also defined by van Boven who referred to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power as follows:
“Persons who as individuals or groups have suffered losses, including physical or mental injury, emotional suffering, economic loss, or real deprivation of their basic rights, both by action (by act) and because of negligence (by ommision).”
In the above understanding, it appears that the term victim does not only refer to individuals, but also includes groups and communities. The definition above also summarizes almost all types of suffering suffered by victims which are not only limited to economic losses, physical and mental injuries, but also include sufferings that are emotionally experienced by victims, such as experiencing trauma. Regarding the cause, it is shown that it is not only limited to actions that are intentionally done, but also includes negligence.
The term victim also includes family or people who depend on other people that become victims. Thus, the intended victim is not only the victim who suffered directly, but the family or the person who suffered from the suffering of the victim. In the context of human rights violations, the concept of victims is very broad. Not only someone who experiences directly as a result of a crime of human rights violation, but also a close family or direct dependents of the victim and those who suffer losses when helping to overcome their suffering or prevent victimization.
Legal studies related to victims are correlated to the basic question “is there a crime (violation of criminal law)”, “who is the perpetrator”, “who suffers losses from a crime”, “what is the loss”, and “how is the loss recovered?”
The concept of crime and who becomes a victim of crime is the starting point that can explain the position of the victim. There are two concepts of crime. First, crime is understood as a violation toward the state or public interest represented by the country’s democratic instruments. Second, crime is understood as a violation of the interests of individuals and also violates the interests of the community, the state, which essentially violates the interests of the perpetrators themselves.
The first concept is based on the concept of retributive justice and the second concept based on the concept of restorative justice. The first concept provides the rationale that the violated interests are in the interests of the public or the state so that a conclusion can be drawn that the state is harmed if there is a crime or violation of criminal law. This concept was built to avoid acts of revenge from individuals. Countries and people suspected of violating criminal law are the center of attention in the administration of criminal justice. Meanwhile, the state gains its legitimacy as a legitimate representative of the public interest and the basis of emotional and subjective personal revenge, then reconstructed in the administration of criminal justice as a rationalization or objectification of revenge to offenders of criminal law.
The position of victims of crime, namely the state, in the justice system plays a central and dominant role in making decisions against suspects or violators of criminal law. On the other hand, other parties that are not conceptualized as involved or included as perpetrators or victims are positioned as instruments of evidence in criminal proceedings, namely as witnesses. As one of the evidences, the witness does not have a legal relationship with the case of the violation of the criminal law witnessed, which is subsequently used as an instrument in giving a sentence.
Many of past human rights violations in Indonesia, as part of authoritarian rulers, were not resolved fairly by the existing system so that it became a time bomb or thorn that prevented improvement efforts toward a more democratic order. In fact, there are already many instruments that can be referred to and functioned as mechanisms to solve problems, both at the international and national levels.
Existing institutions, such as court bodies, national commissions, government agencies or non-governmental organizations, are mechanisms that can be activated to work to promote and protect human rights. Settlement efforts can be carried out through two channels, which are court and reconciliation (Truth and Reconciliation Commission). Both of these mechanisms have strengths and weaknesses.
Thus, efforts to integrate must be studied in depth and intact so they produce a good pattern for resolving cases of human rights violations in the past.
The approach through the Truth and Reconciliation Commission which resulted in the recognition of human rights violations by the perpetrators, followed by an apology, was seen as the most accommodating step toward feeling the justice for the victims and expected to restore social balance and maintain national unity. Recognition of the existence of severe human rights violations in the past is seen as one of the noble ways and can overcome prolonged conflicts between the perpetrator and the victim or the victim’s family.
Furthermore, the state can provide amnesty to the perpetrators of severe human rights violations. However, an amnesty can have a negative influence in resolving severe human rights violations. First, with amnesty, victims of past human rights violations do not have the right to prosecute so that the amnesty is seen as a prerogative from the state and the role of the victim has been taken over by the state. In cases of severe violations of human rights, the concept of amnesty must be reviewed so that it is not only the rights and responsibilities of the state, but also the rights of the victims.
There is no easy formulation to produce democratization for countries that are out of authoritarian state practices, especially when facing the efforts to combat crime against humanity or severe human rights violations. Differences in the basic characteristics of the transition process, the transition stages, and the nature of past crimes in history will determine the accuracy of the approach taken.
Nevertheless, there are several ways to resolve severe human rights crimes in the past. First, there must be a meaningful commitment in the form of will and resources from the government side, in addition to increasing investigative efforts and the prosecution needed for severe human rights violations. Secondly, there must be community participation to participate in striving for a just solution by paying attention to the rights of severe human rights violation victims. The settlement of severe human rights violations in the past needs to be done transparently so that the source of life from the seeds of democratization will develop along with the enforcement of law through legal mechanisms that uphold legal certainty by relying on justice.
This essay was written by Lintang Febiana Sugianto for essay writing competition organized by Program Peduli. The views of the writer do not reflect the views of Program Peduli.