WHAT IS A TRUTH COMMISSION?

There is not one commonly accepted definition of a TRC. One certain point, however, is that the commission is created during a situation of political transition within the framework of handling gross violations or crimes of human rights.

If we look at the commissions meant to exist in a variety of countries, it becomes clearly apparent that they differ in name, mandate, and authority, depending on the type of human rights crimes being examined. Even though this is the case, however, the various commissions share one common characteristic, that is resolving Human Right violations.

Up until now the TRCs across the world have possessed at least four common elements. First, they focus investigation on past crimes. Second, their aim is to obtain a comprehensive picture of human rights crimes and violations of international law, during a specified timeframe, and without focusing on just one case. Third, they have a limited time of service – usually finishing with the completion of a report. Fourth, they have authority to access information from all institutions, and provide  legal protection to witnesses.

The mandates of the TRCs in Chili and Argentina were limited to investigation of extrajudicial executions and forced disappearances – regardless of whether the perpetrator was the state or an armed resistance group. The TRCs in South Africa, Guatemala, and El Salvador, on the other hand, carried wide mandates that extended to almost all types of gross violations of human rights.

In Indonesia, the process of forming a TRC is mandated by the People’s Consultative Assembly Decision No. 6 2000 on National Unity (TAP MPR no. VI 2000), which confirms the compilation of legislation on the truth commission. This mandate is also asserted again in Law No. 26/2000 on the Human Rights Court (UU No 26/2000). Article 43 of Law No 26/2000 explains that cases of gross human rights violations that cannot be resolved through the ad hoc human rights court will be handled by the TRC.

Discourse on the need for a TRC in Indonesia began not long after the fall of Suharto in May 1998, particularly within NGO (Non-Government Organisation) circles. ELSAM (Lembaga Studi dan Advokasi Masyarakat, Institute for Policy Research and Advocacy) was one of the NGOs looking intensively at a TRC. ELSAM’s final report of 1998 mentions the importance of a TRC to investigate human rights violations committed under the previous regime, as well as reconciliation to end conflict.

The idea of a TRC was explored seriously by the government of BJ Habibie. In a meeting between The National Commission on Human Rights and BJ Habibie, there was an expression of the government’s desire to immediately create a TRC. But these plans were later lost. Afterwards it was revealed that the military had had objections, and that Habibie accommodated them.

Concrete steps towards creating a TRC were achieved when the Minister for Law and Legislation, Yusril Ihza Mahendra, met with NGOs during a seminar some time. When NGOs put forward their ideas about the urgency of a TRC for Indonesia, Yusril “challenged” them to submit their draft of the proposed legislation. ELSAM responded to this challenge. In latest developments, a draft of the TRC legislation was reportedly submitted to the State Secretariat in the beginning of November 2001.

A TRC, regardless of who creates it, is seen to be a successful commission if it succeeds in publishing a comprehensive report on past human rights violations. This report should be accepted and believed by the community, who can see sincere efforts on the part of the commission to reconstruct the events and contexts of cases of systematically committed human rights violations.

A TRC is considered to be functioning well if it fulfills the aspect of correctness. The commission is obligated to uncover facts, not just an invention of facts. It should give a report that accords with legal norms or international morals. It may be stated that a killing is a crime, but not equate the killing to the dismissal of someone for political reasons. Equally important, a TRC must explain its findings correctly and honestly. It cannot be allowed to cover up issues that are particularly sensitive or that may complicate the question of primary responsibility. Action such as this would damage community trust in the TRC.

First formed in Argentina and Uganda in the 1980’s, TRCs came to be an international phenomenon. Around 20 countries have chosen to establish commissions as a means of taking responsibility for past human rights violations. A number of commissions have written books on their success, however some others have endured failure.

The idea of a TRC in Indonesia was more or less inspired by the experience of countries who were successful in realising reconciliation despite great resistance to dealing with human rights wounds. South Africa is an example. In South Africa it was Nelson Mandela, himself a political victim of apartheid, who suggested forming The Truth and Reconciliation Commission.

The government of BJ Habibie – which accepted the baton passed to it by the Suharto regime – has already put the formation of a TRC on the agenda, with a mission to reveal cases of past humanitarian crimes. But clearly Habibie was no Mandela or Kim Dae Jung, the President of South Korea. These two international figures were themselves victims of humanitarian crimes. The fact remained that it was not easy to restore people’s trust in the idea while the Habibie government was seen as a continuation of Suharto’s New Order. This was an early challenge for those wishing to create a TRC in Indonesia. “You can say that the Habibie government is enemy, but we still have to sit down and talk about it,” pointed out legal practitioner Buyung Nasution in considering community pessimism.

Indeed, in the opinion of democracy analysts (including Huntington, Diamont and O’Donnel), the process of democracy always faces issues left over from the old regime. Old regime actors (officials) are still occupying strategic posts.

There are at least two moves to try against these ‘strong people’. First is the most extreme move, which follows advice once presented by Machiavelli to Lorenzo De Medici, an Italian authority. This move is to kill all that remains of the old regime, even its most youthful generations, in order to avoid the possibility of a revenge attack. The second is reconciliation.

It should be emphasised that reconciliation, which is realised as ‘forgiving without forgetting’, must be based on proportional standards of what old regime ‘sins’ it is appropriate to forgive, and what are unforgivable. Unforgivable ‘sins’ should then be further grouped in accordance with the quality of their wrong.

How can these standards be determined, and who should have the authority to do it? The TRC can be given the authority to determine who amongst the old regime actors it is appropriate to pardon or forgive and who it is not appropriate to pardon or forgive. Those who should not be pardonned will be sent to a court of law, whether civilian or military, domestic or international.

Since the fall of Suharto, many people, including Nurcholish Madjid, have suggested that efforts be made towards national reconciliation, or using language of more religious nuance; ishlah.

Unfortunately, response to this suggestion has mostly come from circles of former New Order officials. It is certainly easy to guess their aim: to avoid responsibility for their humanitarian sins. This was the case with the ishlah of the Tanjung Priok Incident and the Lampung Incident. In this way the suggestion of reconciliation becomes counterproductive to democratisation. Another excess has been the dissension of victims and victim’s families. If there were a positive response to the suggestion of national reconciliation, for example through the formation of a TRC, maybe they would be talking differently.

The Vice President Hamzah Haz has on a number of occasions given voice to the urgency of reconciliation or national ishlah. In each explanation, however, Hamzah Haz, General Chairman of the PPP has given the implied or written impression that we should forgive and forget the sins of the New Order. This is certainly regretful.

In weaving a future for a new Indonesia, reconciliation is seen as being able to heal people’s wounds. Reconciliation does not mean opening past wounds by carrying out revenge, but rather creating peace in the life of the community and nation by restoring the rights of victims and victim’s families.

The rights of victims and their families can be restored by revealing the truth behind incidents. “This revelation does not only try the perpetrator, but just as importantly, obtaining the real truth about the pattern of past human rights violations means that policy and institutional change can be implemented. With these changes we can prevent the reoccurrence of these same violations in the future,” said Asmara Nababan of the National Human Rights Commission.

Of course it is not easy to capture all of this hope. The experience of other countries who have formed TRCs shows that acknowledging the truth is not only difficult, but also full of risk. The possible occurrence of revenge action is concerning.

The suspected human rights perpetrator is generally worried if asked to give a statement, even more so if that statement is to be public, as was the case in South Africa. But providing open statements through the mass media, as constitutes the process of acknowledging the truth, is certainly risky. In El Salvador, statements were given in confidence. This was so the accused could feel free and safe in conveying their statement and confession. The weakness here is that community suspicion may easily arise because it opens up the wide opportunity for manipulation, or at least bias in the commission team.

Whatever method is chosen, there will always be risk. Parties involved with TRCs have received threats and been killed. In Uganda, for example, members of the TRC were chased, killed or exiled overseas. In Chili there were at least three political killings in the weeks after the TRC announced its findings. Amongst those killed was a prominent senator. These political killings create a culture of fear in the community. The aim is to stop people talking about the TRC process and findings. It seems that to different degrees this risk occurs everywhere, with Indonesia being no exception.

The mission to investigate human rights crimes, however, cannot be allowed to fade. In order to pass this period of transition and make steps towards a brighter future, every component of this nation needs a process of healing. This will only occur if the disease is known, diagnosed, and treated. Essentially this process should aim to lead perpetrators to an acknowledgment of historical wrongs.

If this phase is successfully completed, despite immense risk, an invaluable contribution will have been made in the process of reconciliation. None of us wish to sink forever in the rotting wounds of history, which scar so many sectors of the community, not to mention ordinary people who struggle ceaselessly in the heart of bloody conflict and violence.

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