DECISION THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF INDONESIA
Case Number 065/PUU-II/2004, Petition of ABILIO JOSE OSORIO SOARES
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
PASSING THE DECISION:
reject the Petitioners’ petition
1. 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 nonretroactivity. The principle of non-retroactivity is still prioritized, however, it is not intended to be interpreted as an absolute.
2. 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.
3. 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). 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.
4. 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 nonretroactivity 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.