Hipolitus Yolisandry Ringgi Wangge
2012 Arryman Fellow at Northwestern University, Evanston, Illinois.
All speculations about the mastermind
behind the Sleman prison killings have come to an end after Brig. Gen. Unggul K.
Yudhoyono, the head of the Army’s investigative team, announced that 11 of
the Army’s Special Forces (Kopassus) personnel have been proved to be behind the
killing of the four detainees in a jail (Jakarta
Post, 04/04/2013). In further explanation, it was revealed that the main
reason behind this atrocious assault was an act of revenge in response to the
murder of their comrade. The spirit of corps that is essentially defined in the
positive way of forming a sense of purpose and comradeship, have become a
legitimation to overuse their repressive function instead of promoting their
protective function. This violation of the spirit of corps reflects the
military as an institution that controls every single unit within it; the
culpability does not rest solely with the personnel involved.
The latest
case in Cebongan prison that claimed the lives of four detainees along with the
attack on the police station in Ogan Komering Ulu, South Sumatra, depict the abuse
of coercive power by the military toward both civilian and other state
institutions. However, the results released by the Army’s investigative team about
the Cebongan case have to be highly appreciated in line with the upholding of
the national justice system in Indonesia. The next question is the extent to
which this commitment can be undertaken to bring a true sense of justice
towards those who are suspected in this case. This question arises following
the Army’s decision to bring these personnel to face a military court. However,
as we know, from the new order era to the reform era, the military justice
system has become a public concern based on its performance. Two main arguments can be proposed about this
concern, namely empowering the civilian justice and breaking down the military
court as a safe haven for military officers.
Command Structure Inclination
Military justice in Indonesia is
still a matter of the law enforcement system in Indonesia. The main indicator
of the problem is the decision-making process; the final verdict determined by the
military judges was not in accordance with the principles of democracy and
human rights. During the new order, the whole military justice process from
investigation to prosecution by military prosecutors was extremely closed. In
the reform era, this situation still occurs. In addition the military tribunals
follow the line of command instead of acting as an institution of the public
conscience.
In the past, the highest judicial
power in a military court was under the Armed Forces Commander. This judicial
power shifted to the Supreme Court in September 2004 and the change was
reinforced by the Presidential Decree Number 56 in 2004 as well as the mandate
of Law Number 49 Year 2009 regarding Judicial Power. Based on these two regulations,
supervision of the military court is under the Supreme Court, while discipline
and career guidance for the members of the military are supposed to be
submitted to the Department of Defense. However, the typical verdicts delivered
by military judges still tend to be based on the TNI command line rather than
on considerations of the Supreme Court as the holder of the highest judicial
authority in the country.
Under the oversight authority of the
Supreme Court, the final judgment of the military tribunals should be based on a
common criminal consideration, not a command line. Command influence occurs
when a military authority tries to influence, obstruct or deliberately direct
the administration of justice. In this regard, the Law Development Board
(Babinkum) under the Indonesian Armed Forces (TNI) Headquarters controls the
military corps system of law, including prosecutors and courts. Unfortunately,
this structure leads to a legal process that is mostly influenced by the
command of the military.
Safe Haven
Furthermore, the military court still
is presumed to be a “safe haven” for officers who violate the country’s laws. Based on Indonesian policy studies reports
conducted by Imparsial, during the years 2001-2006 there were 46 cases
of human rights violations committed by members of the military and police
officers who received an average sentence of less than 4 years in prison. Whereas
reports of the Indonesian Human Rights Commission found 11 cases of violations by
the military against civilians in all provinces from 2009 until the beginning
of 2011, only 5 were processed in military courts.
According to the two aforementioned
reports, the significance of military justice for criminal acts committed by military
personnel is still far from expectations. Military justice has become a safe
haven for the resolution of these criminal cases. Disciplinary action taken by
the judges of military courts is very minimal when compared to the acts themselves,
including even those that have led to death. A typical sentence is merely
adding external assignments to their institutional duties. Such sentences do
not provide a deterrent effect for other soldiers even though a deterrent
effect is one of the goals of justice in a democratic country.
The public expects fair and democratic values and human rights. Empowering the civilian justice and abolishing the military court as a safe haven would meet such public demands. Moreover, the Cebongan’s case is an opportunity to boost the spirit of military internal reforms launched after the ousted of the authoritarian regime in 1998.
First
published at The Jakarta Post Newspaper http://www.thejakartapost.com/news/2013/04/09/reforming-military-justice-system.html
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