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DECISION
Case Number 065/PUU-II/2004
FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
Examining, hearing, and deciding upon constitutional cases at the first and final level, has passed
a decision in a case of petition for judicial review of the Law of the Republic of Indonesia
Number 26 Year 2000 regarding Human Rights Court (hereinafter referred to as the Human
Rights Court Law) against the 1945 Constitution of the State of the Republic of Indonesia
(hereinafter referred to as the 1945 Constitution), filed by:
ABILIO JOSE OSORIO SOARES, in this case represented by his Attorneys-In-Facts who are
members of the TEAM OF ATTORNEYS-IN-FACT for ABILIO JOSE OSORIO SOARES
(former Governor of East Timor Province), having their secretariat office at Jalan Majapahit
Permai Block B 122-123 and C 101, Central Jakarta, comprising:
1. O.C. KALIGIS, S.H., M.H.
2. Y.B. PURWANING M. YANUAR, S.H, MCL, CN.
3. PROF. DR. INDRIYANTO SENO ADJI, S.H., M.H.
4. LUCAS, S.H., CN.
5. JUAN FELIX TAMPUBOLON, S.H., M.H.
6. WIMBOYONO SENO ADJI, S.H., M.H.
7. NOVATRA SORAYA, S.H., LL.M
8. RACHMAWATI, S.H., M.H.
9. MARINI SULAEMAN, S.H.
10. DANIEL ALFREDO, S.H.
11. NATHALIE ELIZABETH, S.H., M.H.
12. NARISQA, S.H.
13. INGRID PAAT, S.H.
14. JOSHUA SATYAGRAHA, S.H.
15. A.A. ARYA YUDHISTIRA, S.H.
16. FENNY FEBRIANTY, S.H.
17. R. ALIF AKBAR, S.H.
18. RETNI NATALIA BYA, S.H.
19. FICKY FIHER ACHMAD, S.H.
based on a Special Power of Attorney dated August 25, 2004, hereinafter referred to as the
Petitioner
Having read the petition of the Petitioner;
Having heard the statement of the Petitioner in the hearing;
Having heard the oral statement and read the written statement of the Government and the
People's Legislative Assembly of the Republic of Indonesia presented in the hearing and
submitted through the registry office of the Constitutional Court of the Republic of Indonesia;
Having examined the evidence presented by the Petitioner in the hearing;
LEGAL CONSIDERATIONS
Considering whereas the purpose and objective of the Petitioner's petition are as mentioned
above;
Considering whereas prior to examining the principal issue of the case, the Constitutional Court
must first take the following matters into account;
1. Whether the Court has the authority to examine, hear and decide upon the petition for judicial
review of Law Number 26 Year 2000 regarding Human Rights Court enacted on November 23,
2000;
2. Whether the a quo Petitioner has the legal standing to file the petition for judicial review of
Law Number 26 Year 2000 regarding Human Rights Court (Human Rights Court Law) against
the 1945 Constitution.
In respect of the above mentioned two issues, the Constitutional Court is of the following
opinion:
1. Authorities of the Court;
Whereas based on the provision of Article 24C Paragraph (1) of the 1945 Constitution juncto
Article 10 Paragraph (1) of Law Number 24 Year 2003 Regarding the Constitutional Court, one
of the Court's authorities is to review laws against the 1945 Constitution;
Whereas based on the provisions of Article 50 of Law Number 24 Year 2003 and its elucidation,
laws which can be petitioned for review are laws enacted following the first amendment to the
1945 Constitution dated 19 October 1999, whereas Law Number 26 Year 2000 was enacted on
November 23, 2000 with the State Gazette of the Republic of Indonesia Number 208;
Based on the foregoing, the Court is authorized to examine, hear and decide upon the a quo
petition;
2. Legal Standing of the Petitioner
Whereas that pursuant to the provision of Article 51 Paragraph (1) of the Constitutional Court
Law, Parties that can file a petition for judicial review of laws against the 1945 Constitution are
parties who claim that their constitutional rights and/or authorities have been impaired by the
coming into effect of a law, namely individual Indonesian Citizens, units of customary law
communities insofar as they are still in existence and in accordance with the development of the
community and the principle of the Unitary State of the Republic of Indonesia as regulated in
laws, public or private legal entities or state institutions;
Whereas the Petitioner, Abilio Jose Osorio Soares (former Governor of East Timor Province), is
an Indonesian Citizen who has gone through the process as a Defendant in the case of gross
human rights violation at the Ad Hoc Human Rights Court of the Central Jakarta Human Rights
Court who considers that his constitutional rights have been impaired by Article 43 Paragraph
(1) of the Human Rights Court Law namely the rights regulated in Article 28I Paragraph (1) of
the 1945 Constitution which reads," The right to life, the right not to be tortured, the right of
freedom of thought and conscience, the right to have a religion, the right not to be enslaved, the
right to be recognized as a person before the law, and the right not to be prosecuted under
retroactive laws shall constitute human rights which cannot be reduced under any circumstances
whatsoever". Article 43 Paragraph (1) of the Human Rights Court Law, which provides that
gross human rights violation which occured prior to the enactment of the Human Rights Court
Law shall be examined and decided by the Adhoc Human Rights Court, has been applied to the
Petitioner;
Therefore, the a quo Petitioner has the legal standing to file the petition for judicial review of
Article 43 Paragraph (1) of the Human Rights Court Law;
Considering whereas that the Court has the authority to examine, hear and decide upon the a quo
petition filed by the Petitioner having the legal standing, hence the Court will further consider
the principal issue of the petition argued by the Petitioner;
Principal Issue of the Case;
Considering whereas the principal issue of the a quo petition concerns the application of Article
43 Paragraph (1) of the Human Rights Court Law which regulates the Ad Hoc Human Rights
Court having the authority to examine gross human rights violations occuring prior to the
enactment of the a quo law, on the basis of which the Petitioner has been tried and sentenced,
thus the Petitioner claims that that his constitutional rights have been impaired since he has been
tried and sentenced based on legal provisions which apply retroactively. According to the
Petitioner, this is contradictory to Article 28I Paragraph (1) of the 1945 Constitution which
states, "The right to life, the right not to be tortured, the right of freedom of thought and
conscience, the right to have a religion, the right not to be enslaved, the right to be recognized
as a person before the law, and the right not to be prosecuted under retroactive laws shall
constitute human rights which cannot be reduced under any circumstances whatsoever".
Therefore, Article 43 Paragraph (1) of the a quo law is petitioned to the Court to be declared as
having no binding legal force;
Considering whereas Article 43 Paragraph (1) of the Human Rights Court Law states," gross
human rights violation which occured prior to the enactment of this law, shall be examined and
decided by an ad hoc Human Rights Court", unarguably has a legal provision that applies
retroactively. However the legal problem that must be considered and decided by the court in the
a quo petition is whether such provision is automatically contradictory to Article 28I Paragraph
(1) of the 1945 Constitution;
Considering whereas prior to further considering the petition of the Petitioner, the background of
the establishment of the Human Rights Court must first be known. For that purpose, the Court
has heard the oral and written statements of the Government and has also requested the written
statement of the of the People's Legislative Assembly, from which the followings are identified:
- that the isue of Human Rights Court with all of its aspects is highly relevant to the
international community for the fact that the problem of recognition and enforcement of
human rights have become the determination of national and international communities.
Furthermore, the demand coming from the public for the formation of a Human Rights
Court is extremely strong;
- that human rights indicated in the 1945 Constitution, the Universal Declaration of Human
Rights, Stipulation of the People's Consultative Assembly of the Republic of Indonesia
Number XVII/MPR/1998 regarding Human Rights, and Law Number 39 Year 1999 on
Human Rights must be carried out with full responsibility. The Stipulation of the People's
Consultative Assembly of the Republic of Indonesia Number XVII/MPR/1998,
applicable at that tiime, assigned high level state institutions and all government
apparatus to respect, uphold and disseminate the interpretation of human rights to the
general public and to immediately ratify various UN Human Rights Instruments as long
as they are not contradictory to Pancasila and the 1945 Constitution;
- that from the view point of legal development, as seen in terms of both National and
international interest, to resolve the problem of gross human rights violations and to
restore safety and peace in Indonesia it was deemed necessary to form a Human Rights
Court which is a special court for gross human rights violations. Even though
Government Regulation in Lieu of Law Number 1 Year 1999 regarding Human Rights
Court has been formulated, however, due the the fact that it is considered inadequate, the
People's Legislative Assembly of the Republic of Indonesia (DPR RI) did not approve
the Government Regulation in Lieu of Law (PERPU) to be ratified as a law;
- that the establisment of the Human Rights Court set forth in Law Number 26 Year 2000,
was also based on the following considerations, Firstly, to address a number of recurring
human rights problems which have been faced by the Indonesian Nation from time to
time in a relatively long period of time hence the Human Rights Court is expected to be
able to resolve a number of human rights problems in the past so that they will not
become unfinished problems which always pose obstacles. Secondly, to address a number
of problems which are contemporary or which arise as "burning issues" with broad
dimension considering that Indonesia can not isolate itself from a number of human
rights problems faced by the international community as contemporary collective human
rights issues, and Thirdly, to empower human rights institutions in addressing current and
future human rights issues;
- that the retroactive application of a law in Article 43 Paragraph (1) is the Government's
effort to respectfully resolve gross human rights violations occuring prior to the
enactment of the Human Rights Law without the intervention of the international
community by means of civilized ways and by using applicable standards in handling
extraordinary crimes;
- that the establishment of the Ad Hoc Human Rights Court is far from the intent of
granting "impunity" and/or creating sham proceeding, but rather, it is inspired only by the
spirit and the willingness and to show the ability to respectfully and professionally
resolve allegations of gross human rights violation through domestic mechanism as a
primary forum with the adoption of Rome Statute of International Criminal Court 1998,
as far as it concerns elements of crimes related to genocide and crimes against humanity;
Considering whereas the background of the establishment of the Human Rights Court is as
described above and what has to be considered by the court now is: whether the establishment of
the Ad Hoc Human Rights Court with retroactive legal provisions is contradictory to Article 28I
of the 1945 Constitution, as petitioned by the a quo Petitioner. To answer this question, firstly it
needs to be answered: whether the right not to be prosecuted by any law which applies
retroactively is an absolute right, as textually formulated in Article 28I Paragraph (1) of the 1945
Constitution;
Considering whereas the provision of Article 28I Paragraph (1) of the 1945 Constitution states
that the right not to be prosecuted under retroactive law shall constitute human rights which
cannot be reduced under any circumstances whatsoever. Although such literal formulation
creates an impression as if the right not to be prosecuted under a retroactive law is absolute, in
accordance with the history of its formulation, Article 28I Paragraph (1) can not be interpreted as
standing in its own, but rather, it must be read together with Article 28J Paragraph (2). As such,
it will be clear that, systematically, human rights-including the right not to be prosecuted under a
retroactive law -is not absolute, because in exercising his right and freedom, every person must
respect the human rights of others and must submit to the limitation stipulated in laws with the
sole purpose of guaranteeing the respect for and enforcement of the rights and freedom of others,
as well as to "meet fair demand in accordance with the consideration of morality, religious
values security and, public order in a democratic society as provided for in Article 28 Paragraph
(2). By reading Article 28 I Paragraph (1) together with Article 28 J Paragraph (2) it is
noticeable that the right not to be prosecuted retroactive lawsis not absolute, and in order to
"meet the fair demand in accordance with considerations of morality, religious values, security
and order" and such right can be set aside.
Considering that in applying the principle of non-retroactivity, it must also be considered
whether the rigid application of the principle will create injustice, undermine religious values,
public security and order, because if that happens, such protection of an individual is not the
purpose of the law. A balance must be found between legal certainty and justice by interpreting
Article 28I Paragraph (1) of the 1945 Constitution not only based on its text but by also studying
the meaning of the principle according to its history, practice and comprehensive interpretation;
Considering whereas the standard for determining the balance between legal certainty and
justice, particularly in upholding the principle of non-retroactivity must be carried out by
considering three tasks/objectives of law which affect one another (spannungsverhältnis) namely
legal certainty (rechtssicherkeit), legal justice (gerechtigkeit) and legal usefulness
(zweckmassigkeit). With equal consideration of the three legal objectives, the limited retroactive
application of a law, particularly for extraordinary crimes, is legally justifiable;
Also considering that a retroactive application of a law does not immediately make the law
contradictory to the Constitution and instantly loses its binding legal force. Such application also
does not immediately constitute human rights violation, instead it must be assessed based on two
factors or requirements that must be met in the retroactive application of laws;
Firstly, the magnitude of public interest that must be protected by the law;
Secondly, the weight and nature of the rights violated as a result of such application of law is
smaller than the violated public interest;
Considering whereas crimes for which the principle of non-retroactivity can be overridden as
provided for in Article 43 Paragraph (1) of the Human Rights Court are " gross violations of
human rights" namely genocide and crimes against humanity (vide Article 7 of the Human
Rights Court Law). Genocide crime is every action intended to destroy or annihilate all or part of
a nation, race, ethnic group, religious group, by: (a) killing the group members; (b) causing
severe physical or mental suffering to the group members; (c) creating living condition for the
group which will result in total or partial annihilation; (d) forcing actions with the intent of
preventing birth in the group or (e) moving children by force from a certain group to other group
(vide Article 8 of the Human Rights Court Law). Whereas a crime against humanity is one of the
actions carried out as part of a broad or systematic attack with the knowledge that the attack is
directly targeted at civilians in the form of: (a) murder; (b) annihilation; (c) slavery; (d) eviction
or removal of civilians by force; (e) arbitrary deprivation of freedom or other physical freedom
which violate the principles of international law; (f) torture; (g) rape, sexual slavery, forced
prostitution, forced pregnancy, forced sterilisation or other similar forms of sexual violence; (h)
cruel treatment to a certain group or organisation on the basis of equality of political beliefe,
race, nationality, ethnicity, culture, religion, sex, or other reasons universally recognized to be
prohibited by international laws; (i) forced disappearance of a person; or (j) apartheid crime
(vide Article 9 of Human Rights Court Law);
Considering whereas the above mentioned crimes are contradictory to the spirit to enforce and
highly uphold humanity and justice, which are clearly stated in the preamble of the 1945
Constitution, and at the same time they are also contradictory to the general principles of law
recognized by civilized nations. Therefore, the overriding of the principle of non-retroactivity on
such crimes is not contradictory to the 1945 Constitution; as the constitution of a civilized
nation, the spirit of the 1945 Constitution in fact mandated the enforcement of humanity and
justice; hence the above described crimes against humanity must be eradicated. When the
demand to uphold humanity and justice is hindered by the principle of non-retroactivity-which
historically and initially had the background of the intent to protect individual human beings'
interest from arbitrary actions of absolute rulers - hence the overriding of the principle of non-retroactivity becomes an unavoidable action because the interest which are to be saved through
such overridding is the interest of human beings as a whole whose value exceeds the interest of
an individual human being;
Considering whereas although the Court is of the opinion that the overriding of the principle of
non-retroactivity is justifiable, it is not the intent of the Court to state that such overriding can be
undertaken at any time without any limitations. The 1945 Constitution itself, Article 28J
Paragraph (2), as described above, has affirmed the limitation, namely that the principle of nop-retroactivity can only be overridden only to guarantee the recognition and respect on the rights
and freedom of others and to fulfill fair demand in accordance with considerations of morality,
religious values, security and public order in a democratic society;
Considering whereas although the 1945 Constitution provides the possibility of overriding the
principle of non-retroactivity, it does not mean that the 1945 Constitution does not prioritize the
principle of non-retroactivity. The principle of non-retroactivity is still prioritized, however, it is
not intended to be interpreted as an absolute. The spirit of the 1945 Constitution in this matter is
in line with the spirit of a number of national and international legal instruments, among others:
- Article 29 Paragraph (2) of the Universal Declaration of Human Rights which states, "In
the exercise of his rights and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due recognition and respect
for the rights and freedoms of others and of meeting the just requirements of morality,
public order, and the general welfare in democratic society". This limitation is almost
entirely similar to the limitation formulated in Article 28J Paragraph (2) of the 1945
Constitution;
- Article 15 Paragraph (1) of the International Covenant on Civil and Political Rights states
"No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence, under national or international law, at the
time when it was committed..." however the provision is accompanied by a clause, as
affirmed in Paragraph (2) which states, "Nothing in this article shall prejudice the trial
and punishment of any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law recognised by the
community of nations". Article 4 of this Covenant even firmly allows member states to
take necessary steps in an emergency situation which threatens the life of its nation even
if it results in the leniency of the member states's obligations to the covenant as long as
those steps are not contradictory to the states' obligations to international law and do not
include discrimination solely based on race, skin color, sex, language, religion, or social
origins ("in time of public emergency which threatens the life of the nation, and the
existence of which is officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the present Covenant to the
extent strictly required by the exigencies of the situation, provided that such measures
are not inconsistent with their obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social
origin");
- Article 7 of the European Convention on Human Rights which firmly prohibits the
retroactive application of laws also has an exception which provides the possibility for a
retroactive application of laws by stating that the prohibition of the retroactive
application of laws "shall not prejudice trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the
general principles of law recognized by civilized nations;
Considering that aside from the limitations of the overriding of the principle of non-retroactivity
as constitutionally affirmed by Article 28J Paragraph (2) of the 1945 Constitution, which is in
fact in line with the general limitations recognized by various international legal instruments
described above, in relation to "gross violations" as regulated in Article 43 Paragraph (1) of the
Human Rights Court Law, the legislators also set stringent requirements for the overriding of the
principle of non-retroactivity, which can be viewed in the formulation of Article 43 Paragraph
(2) of the Human Rights Court Law which states, "the ad hoc human rights court referred to in
Paragraph (1) was formed on the basis of the recommendation of the People's Legislative
Assembly of the Republic of Indonesia based on a certain event by a Presidential Decree". With
the provision of Article 43 Paragraph (2) of the Human Rights Court Law it is clear that although
the 1945 Constitution within certain limitations justifies the overriding of the principle of non-retroactivity, the legislators have been very careful in explaining the intent of the constitution,
namely that:
i. The Ad hoc Human Rights Court has been formed only for certain events, namely not
for all events but only for events whose locus delicti and tempus delicti are limited as
stated in the Elucidation of Article 43 Paragraph (2) of the Human Rights Court Law;
ii. a certain event which is alleged to contain gross human rights violation must first be
assessed by the People's Legislative Assembly before it can be alleged to contain gross
human rights violations;
iii. the President can issue a Presidential Decision to form an ad hoc Human Rights Court
only if there is a recommendation from the People's Legislative Assembly with the
opinion that gross human rights violation is suspected to have taken place in a certain
event;
Such prudence which are substantially measures to limit the overriding of the principle of
non-retroactivity, shows two points: Firstly, that basically Human Rights Court Law
prioritizes the principle of non-retroactivity and that, exception to override the principle
can be made only in certain circumstances by forming an ad hoc Human Rights Court;
Secondly, that the ad hoc Human Rights Court can only be formed upon recommendation
of the People's Legislative Assembly because according to the 1945 Constitution, the
People's Legislative Assembly is a representation of the Indonesian people, which means
that basically the Indonesian people are the ones who are entitled to decide when a gross
human rights violation has occured before the a quo Law becomes applicable, hence the
legal need arises to form the ad hoc Human Rights Court;
Considering whereas the establishment of the ad hoc Human Rights Court, as a forum to
adjudicate perpetrators of crimes categorized as "the most serious crimes of concern to the
international community as a whole", as regulated in in Article 43 Paragraph (1) of the Human
Rights Court Law, aside from being justifiable according to the 1945 Constitution, it is also
justifiable by international legal practice and development, which among others is shown by the
establishment of the ad hoc Criminal Tribunal in the former Yugoslavia, namely the
International Criminal Tribunal for the former Yugoslavia (ICTY) and in Rwanda, namely the
International Criminal Tribunal for Rwanda (ICTR). The ICTY was formed (in 1993) with the
jurisdiction to adjudicate perpetrators of war crimes and crimes against humanity, whose tempus
delicti was limited after January 1, 1991 and its locus delicti being the territory of former
Yugoslavia. Meanwhile ICTR was formed (in 1994) with the jurisdiction to adjudicate
perpetrators of genocide crime and other serious crimes against international humanitarian law,
whose tempus delicti was as from January 1 to December 31, 1994, whereas its locus delicti
being Rwanda and its neighbouring states. The two ad hoc courts, ICTY and ICTR, were both set
up based on the Resolution of the United Nations Security Council, even though formed after the
occurence of the event, substantially with the jurisdiction actually being on violations which are
considered as crimes under international law (vide Otto Triffterer, Commentary on the Rome
Statute of the International Criminal Court, Nomos Verlagsgesellschaft, Baden-Baden, 1999,
page 324). Such is also the case with the ad hoc Human Rights Court formed based on Article 43
Paragraph (1) of the Human Rights Court Law, even though formed after the occurence of the
incident or violation, the types of violations which are under its jurisdictions (ratione materiae)
are actually violations which were crimes prior to the establishment of the ad hoc Human Rights
Court, namely genocide and crimes against humanity in this case;
Considering further that the Human Rights Court Law only includes two types of crimes with
respect to which the principle of non-retroactivity can be overridden, namely genocide and
crimes against humanity. The a quo law does not include war crimes and agression crimes,
although according to international customary law these two types of crimes are also categorized
as the most serious crimes of concern to the international community as a whole. This can be
understood because at that time, there was no legal need to regulate the two types of crimes in
the a quo law, particularly Article 43 Paragraph (1), because it was not relevant to the context of
the intent and purpose of the establishment of the ad hoc Human Rights Court;
Considering whereas gross violation of human rights are different from from terrorism crimes
which, according to some experts, are also crimes categorized under the most serious crimes of
concern to the international community as a whole. However, up to now there has been no
accurate and objective definition of terrorism which can be accepted in general (communis
opinio juris sive necessitatis). This is also in line with what has been stated by Omer Y. Elagab:
"As concerns terrorism, it is extremely difficult to offer a precise and objective definition which
can be universally accepted" (vide Omer Y. Elagab, International Law Documents Relating to
Terrorism, Cavendish Publishing Limited, 2000, page xix). Therefore, there has been no general
custom accepted as a law in judiciary practice relating to terrorism, hence it can not be said yet
that international customary law has been formed, which is one of the primary sources of
international law as referred to in Article 38 Paragraph (1) of Statute of the International Court
of Justice. Whereas, such situation is a condition that must be met for the establishment of an ad
hoc court in accordance with the practice and development of international law;
Considering whereas based on the above description, some of the arguments of the Petitioner
which are used as the basis for the refusal of the overriding of the principle of non-retroactivity
are justifiable as long as they concern ordinary crimes or extraordinary crimes which can be
sufficiently tried through a regular court forum without overriding the non-retroactivity
principle. However, the arguments can not be used to develop axiomatic legal construction
leading to a conclusion that the right not to be prosecuted based on a retroactive law is an
absolute human right. Because, if such thought construction is used, actions categorized as
extraordinary crimes which are universally considered as the most serious crimes of concern to
the international community as a whole, including crimes regulated in the a quo law, are very
likely to escape legal prosecution if the law does not firmly regulate such actions as crimes. If
that happens, violations have occured on a fundamental principle universally accepted as a legal
principle namely "there shall be no crimes allowed to pass without punishment" (aut punere aut
de dere). Axiomatic legal construction which makes the principle of non-retroactivity absolute,
rationally, must also be interpreted as a rejection of the transitional justice mechanism which is
the resolution mechanism for violations of law occuring in the past, especially gross human
rights violations. Because, the transitional justice mechanism, regardless of the extent, is certain
to contain the element of the overriding of the principle of non-retroactivity;
Considering that from all of the above descriptions, it is clear that Article 43 Paragraphs (1) and
(2) of the Law of the Republic of Indonesia Number 26 Year 2000 regarding Human Rights
Court (State Gazette of the Republic of Indonesia Year 2000 Number 208, Supplement to the
State Gazette of the Republic of Indonesia Number 4026) as petitioned by the Petitioner, is not
proven to be contradictory to the 1945 Constitution of the State of the Republic of Indonesia, and
therefore the petition of the Petitioner must be declared as rejected;
In view of Article 56 Paragraph (5) of Law Number 24 Year 2003 regarding the Constitutional
Court;
PASSING THE DECISION:
To declare to reject the Petitioners' petition;
DISSENTING OPINION
With respect to the above decision there are 3 (three) Constitutional Court Justices having
dissenting opinions, repectively as follows:
1. H. Achmad Roestandi, S.H.
Justice H. Achmad Roestandi, S.H. is of the opinion that the petition of the Petitioner should be
granted for the following reasons:
a. The application of the retroactivity principle is contradictory to the legal principle
adopted by almost all criminal law systems in the world. The principle of retroactivity,
has indeed been applied in court, however the courts that have done it are international
courts such as the courts in Nuremberg, Tokyo, Rwanda and Yugoslavia. Even though in
international law, in certain situation and state of emergency, the principle of
retroactivity has been applied, in the end it always returned to the stand not to apply the
principle. In the national scope, even the most advanced and "civilized" country, such as
the United States of America, still maintains the principle of non-retroactivity as
indicated in Article I Section 9 of its Constitution which reads: "No bill of attainder or ex
post facto law shall be passed";
b. The principle of retroactivity includes both material criminal law (substance) and
formal criminal law (procedural), because material and formal criminal law constitutes
one unity. The existence of formal criminal law is a consequence the existence of
material crime. Aside from that, the provision of a new formal criminal law can be more
severe than the previous formal criminal law. (For example: length of detaimnet,
investigation actions, evidence, forms of punishment execution);
c. The principle of retroactivity is contradictory to one of the minimum standards in
guaranteeing a fair trial which are pillars of the enforcement of rule of law (constitutional
state). Such minimum standards consist of:
1) equal opportunities for the parties;
2) pronouncement of decisions open to public;
3) the principle of presumption of innocence;
4) no rule of druble jeopardy (ne bis in idem);
5) the application of laws with lighter sentences, for defendants in the event of
any change in the field of law;
6) prohibition of the application of the principle of retroactivity;
d. Allowing the violation of non-retroactivity principle, is analogous to letting the enemy
conquer the beach head which will be used as a base to conquer the next strategic field.
The violation of the principle of non-retroactivity can be used as a start to violate the
other six human rights, including the right to have a religion and the right not to be
enslaved, with made up excuses. If this is not anticipated from the start, this vilolation
will be the start of a big disaster that threatens Human Rights in the future. The
application of the principle of retroactivity may satisfy a short lived interest however it
will impair long term interest, because it can be used as a tool for revenge (talionis) by a
ruler against his political opponent, hence the law is positioned merely as a tool of
power;
e. We must indeed consider the development of international politics and laws, however
the highest norms of test is the 1945 Constitution. The entire interrelationship of the
entire Article 28 (Chapter XV Human Rights), must be interpreted with coherent legal
logic and construction as follows:" There are a number of Human Rights guaranteed in
the 1945 Constitution. Based on Article 28J all Human Rights can be limited by a certain
reason, except for Human Rights stated in Article 28I". Once again, it must be interpreted
as such, because if the seven human rights indicated in Article 28I can still be violated by
limitations provided in Article 28J, there will be no longer any differences between the
seven Human Rights and the other Human Rights. If that is the case, it serves no purpose
in specifically regulating the Human Rights in Article 28J. In other words there is no
purpose of having Article 28J. The phrase "... the right not to be prosecuted under a
retroactive law is a human right which can not be reduced under any circumstances
whatsoever", particularly the words "which can not be reduced under any circumstances
whatsoever" are words which are clear, or using the term of Islamic (fiqh) law, is a
definitive and standard (qoth'i) argument. To find the true intention of the drafters of the
1945 Constitution, interpretation on those words can be carried out using authentic,
grammatical, historical, theological methods of interpretation and so on. Legal
construction through the methods of analogy, argumentum a contrario, or the refinement
of law can also be made to broaden the interpretation of those words. However, the result
of the interpretation must not turn something which is clearly unacceptable to become
acceptable, or turn something which is clearly negative to something positive. Such
analysis can no longer be categorized as the task of interpreting or developing legal
construction, but becomes more like the task of a magician. Therefore, the seven Human
Rights indicated in Article 28I are absolute, insofar as the 1945 has not changed it! "A
retroactive law is not unconstitutional, unless ... is constitutionally forbidden", said
Bryan A. Garner in Black's Law Dictionary page. 1343;
From the above descriptions, it can be concluded that Article 43 Paragraph (1) of the a quo law
is contradictory to Article 28I of the 1945 Constitution, therefore it must be declared as having
no binding legal force, in accordance with the petition of the Petitioner;
2. Prof. Dr. H.M. Laica Marzuki, SH ;
Constitutional Justice H.M. Laica Marzuki is of the opinion that the principle of non-retroactivity is prohibited by the constitution. Article 28I Paragraph (1) of the Law of the
Republic of Indonesia provides that "...the right not to be prosecuted under a retroactive law is a
right which can not be reduced under any circumstances whatsoever". The principle of non-retroactivity is the mandate and order of the constitution, it can not be violated, let alone to be
negated by other laws and regulations. Constitutie is de hoogste wet!
The prohibition of the application of the principle of retroactivity is no longer just regulated in
Article 1 Paragraph (1) of the Indonesian Criminal Code which contains the principle of 'nullum
delictum, nulla poena sine preavia lege poenali', even though the Nullum Delictum principle has
in fact been - in a buiten werking gesteld way - overridden by the NICA occupational
government in 1945, based on stbl 1945 nr 135, commonly known as Brisbane Ordonnantie,
however, the principle of non-retroactivity can no longer be overridden, let alone to be violated,
with the inclusion of the principle in Article 28I of the Constitution of the State of the Republic
of Indonesia Year 1945. Neither can Article 28I of the Law of the State of the Republic of
Indonesia Year 1945 be negated by Article 28J of the 1945 Constitution which only provides for
the limitation for every person in exercising his/her rights and freedom in the sense of wet,
Gesetz, but not in the sense of limitation based on Grundgesetz (Constitution);
Based on the above description, the Court should have granted the petition of Abilio Jose Osorio
Soares as the justitiabel;
3. Prof. H. Abdul Mukthie Fadjar, SH, M.S.
God will not punish his people with severe torture before sending his disciple to them (Q.S. 17:
15)
Constitutional Justice H.A. Mukthie Fadjar is of the following opinion:
1. In theological perspective, God's words as quoted above from a verse of the Al Quran, shows
how God himself as the Almighty Creator does not apply the principle of retroactivity in
religious scriptures, including in its laws, before the laws are set forth in religious scriptures and
brought by the disciples to mankind;
2. Therefore, it can be understood if the principle of non-retroactivity becomes one of the main
pillars of laws, especially criminal law, of all of the people, nations and democratic states. Not
only for legal certainty, but also for justice, and for the sake of human dignity (human rights);
3. The acceptance of the principle of non-retroactivity in the UN Universal Declaration of
Human Rights Year 1948 is indicated in Article 11 Paragraph 2 "No one shall be held guilty of
any penal offense on account of any act or ommission which did not constitute a penal
ofense, under national or international las, at the time when it was committed", certainly
with the awareness that the principle is one of the pillars of Human Rights. Such is also the case
when the Cairo Islamic Human Rights Declaration was established by the Conference of islamic
Organizations (OKI) countries which formulated in Article 19 Sub-Article d " There shall be no
crime or punishment except as stipulated by the Islamic Law (syariat)", is in line with the
provision of God's words in the above theological perspective;
4. In the perspective of International Criminal Law, the Rome Statutes on International Criminal
Court/ICC year 1998 states in:
- Article 11 Paragraph (1): " the Court only has jurisdiction on criminal acts committed
after the applicability of this statute";
- Article 24 Paragraph (1): "No one shal be criminally responsible based on this Statute for
an action prior to the applicability of thsi Statute";
5. In the perpective of State Administration Law (Constitutional Law), it can be said that almost
all Constitutions in the world adopt the principle of non-retroactivity, hence when the 1945
Consitution in Article 28I Paragraph (1) formulates "The right to life, the right not to be tortured,
the right of freedom of thought and conscience, the right to have a religion, the right not to be
enslaved, the right to be recognized as a person before the law, and the right not to be
prosecuted under retroactive laws shall constitute human rights which cannot be reduced
under any circumstances whatsoever", it is certainly with full awareness and evidence of
religious commitment and the universality of Human Rights. Article 28J Paragraph 2 of the 1945
Constitution is as a restriction on a number of Human Rights outside what have been stated in
Article 28I Paragraph (1)in a limited manner;
6. Various arguments for the limited application of the principle of retroactivity for various
criminal case categorised as "extra-ordinary crime" with unclear criteria, are more of political
consideration rather than legal consideration, in national or international dimension;
7. The presence of Law Number 26 Year 2000 on Human Rights Court, particularly its Article
43 which applies the principle of retroactivity, from the argument presented by the law makers,
shows the existence of political pressure affecting it. Therefore, the Constitution [Article 28I
Paragraph (1)] must not be affected by the a quo law, otherwise, the Court will become a
butcher [penjagal] of the Constitution rather than the guardian [penjaga] of the
Constitution;
Hence the decision was made in the Plenary Consultative Meeting attended by 9 (nine)
Constitutional Court Justices on:
Wednesday, March 2, 2005, and was pronounced in a Plenary Session of the Constitutional
Court open for the public on Thursday, March 3, 2005, by us Prof. Dr. Jimly Asshiddiqie,
S.H as the Chairperson and concurrent Member, accompanied by Prof. Dr. H. M. Laica
Marzuki, S.H., Prof. H.A.S. Natabaya, S.H., LLM., H. Achmad Roestandi, S.H., Dr.
Harjono, S.H., MCL., Prof. H. Abdul Mukthie Fadjar, S.H.,M.S., Maruarar Siahaan, S.H.,
Soedarsono, S.H. respectively as members and assisted by Teuku Umar, S.H.,M.H. as
Substitute Registrar, in the presence of the Petitioner/the Petitioner's Attorneys-In-Fact, the
Government, and the People's Legislative Assembly;
CHIEF JUSTICE,
SIGNED
PROF. DR. JIMLY ASSHIDDIQIE, S.H.
JUSTICES,
| Prof. Dr. H.M. LAICA MARZUKI, S.H. |
Prof. H.A.S. NATABAYA, S.H., LL.M. |
| H. ACHMAD ROESTANDI, S.H. |
Prof. H. A. MUKTHIE FADJAR, S.H.,
MS. |
| Dr. HARJONO, S.H., MCL. |
I DEWA GEDE PALGUNA, S.H., M.H. |
| MARUARAR SIAHAAN, S.H. |
SOEDARSONO, S.H. |
SUB REGISTRAR,
TEUKU UMAR, S.H.,M.H
[Source: Website of the Constitutional Court of the Republic of Indonesia.]
