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The Munir history test: Unfinished business of justice

9 July, 2009

In October 1999, the International Commission of Jurists (ICJ) published a report, Ruler's Law, that described how Indonesia's first two presidents - Sukarno and Soeharto - created an environment in which the country's constitutional and legal norms were "allied closely with the authority of the Presidency and the authoritarian character of the prevailing political order".

The abuse of power "created the preconditions for the establishment of an absolutist State in which the rule of law, judicial independence and human rights have been frequently disregarded," said the ICJ.

In the short period of Indonesia's history since the downfall of Soeharto in 1998, the country has made significant progress in its transition to democracy. But questions remain about whether the rule of law is still being used for the benefit of those in power or whether it is now being administered according to democratic principles on behalf of the population in general.

Four years ago, President Susilo Bambang Yudhoyono set a useful benchmark for the transition when he stated that the resolution of the murder of Indonesia's foremost human rights defender, Munir, would be a "a test of our history".

Today is the fifth anniversary of Munir's tragic death. It is time to consider whether the Yudhoyono administration has passed the test.

The rule of law is an essential component of a modern democratic society in which people can be certain of their rights and their entitlement to justice. It is maintained by independent judicial institutions and is the means by which the government and its agents are held to account for the way in which they exercise their duties and responsibilities.

The rule of law is built on norms set out in the Constitution, laws and regulations. The Constitution establishes human rights values for the people and state institutions. Laws and regulations interpret and implement the Constitution. But they are not enough on their own. Political support, legal education and capacity building are required to ensure respect for the rule of law.

Political support does not mean political intervention. It involves a commitment to building a fair and equitable legal system that reflects the needs of the people and victims for justice. It can be meaningless without judicial institutions that have adequate capacity and competence, especially in an emerging democracy such as Indonesia.

In putting forward the Munir murder as a test case, the President appears to have reckoned without the unchecked power of the State Intelligence Agency (BIN) to obstruct justice.

Munir was a courageous campaigner against military impunity. He succeeded in revealing the extent and nature of political violence practiced by the State, especially in relation to the disappearances of pro-democracy students in the 1997-1998 period before Soeharto's downfall. His efforts resulted in the dismissal of a number of high-ranking military personnel and generals.

On Sept. 7, 2004, Munir was fatally poisoned during a flight to the Netherlands on his way to take up studies for a human rights masters program at Utrecht University. Early in his administration, in 2005, President Yudhoyono formed a Fact Finding Team to investigate the murder. Its report pointed the finger of suspicion at BIN.

Subsequent investigations were carried out by the Indonesian Police and the Attorney General's office. They eventually resulted in the trial of Muchdi Purwopranjono, a former senior Deputy of BIN and former commander of the army's special forces (Kopassus), the unit responsible for the 1997-1998 student disappearances.
On Dec. 31, 2008, however, Muchdi was acquitted by the South Jakarta District Court of all charges relating to Munir's murder. The acquittal was upheld by the Supreme Court in June 2009.

The Munir case goes to the heart of Indonesia's commitment to the rule of law. It concerns the security of human rights defenders who are vital to the protection of fundamental rights integral to any system of justice. The failure of the legal system to hold anyone in authority to account for the murder demonstrates that impunity is still alive and well in Indonesia today.

The Action Committee in Solidarity with Munir (KASUM) questioned the credibility, independence and objectivity of the court. In a report submitted to the UN Rapporteur on Human Rights Defenders, it said the Muchdi acquittal indicated that the Indonesian justice system is not yet able to effectively prosecute senior officials with powerful connections, due to weak prosecution capacity and witness intimidation.

KASUM identified crucial problems with the failure of the police to gather vital evidence, and the failure of the Attorney General's Office and prosecution to bring key witnesses before the court to respond to the withdrawal of testimony that could have proved Muchdi's involvement in the murder.

It was particularly critical of the judges for not properly considering the nature of the conspiracy involved in the murder, for not requiring witnesses to attend court, and for not recommending the prosecution of those suspected of false testimony. It cast doubt on the judges' findings concerning evidence of telephone communications between Muchdi and Pollycarpus Budihari Priyanto, the person convicted of administering the fatal dose of arsenic to Munir.

President Yudhoyono was also blamed for not ordering BIN to cooperate with his Fact-Finding Team and for not doing more to ensure that BIN agents and officers testified at the trial. The witness with the most incriminating testimony failed to appear because he was on a government assignment in Afghanistan at the time. He could easily have been recalled. All this indicates a broader lack of civilian oversight of BIN.

Muchdi himself, was not slow to use the law to intimidate his accusers. Following his trial he announced that he would file criminal defamation suits against four human rights defenders who testified against him, including Suciwati, Munir's widow, and the writer Usman Hamid, the current head of the organization founded by Munir, Kontras.

On the evidence of this exemplary case, Indonesia has clearly failed this test of history. The consolidation of democracy requires greater political commitment to the rule of law and stronger institutions capable of administering justice fairly and effectively. Otherwise the system will continue to resemble the "Ruler's Law" regime that prevailed during the Soeharto era.

President Yudhoyono has another chance to take the test during his second term starting next month. Without interfering in the judicial process he should ensure a continued investigation into the Munir case until those responsible for this heinous crime at the highest level are brought to justice. For the sake of Munir and his fellow victims of state violence and abuse, we must hope for a successful outcome this time.

Usman Hamid is Coordinator of KontraS and Paul Barber is Coordinator of the UK-based NGO TAPOL.