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Speculation about the culprits behind the
Cebongan prison raid came to an end after an Army investigation team said
that 11 Special Forces (Kopassus) commandos were behind the incident,
which culminated in the execution of four detainees on March 23.
The motivation of the atrocity was identified as revenge for the murder
of a former comrade. Espirit de corps, which has a positive benefit in
developing a sense of purpose and comradeship, has been perverted by the
soldiers to justify the attack.
This violation of their sworn oaths has tarnished the Indonesian Military
(TNI) as a whole, as it is an institution that relies on adherence to the
chain of command. However, culpability for the raid and executions does
not rest with the accused commandos alone.
The Cebongan incident and the attack on a police station in Ogan Komering
Ulu, South Sumatra, depict the abuse of coercive power by the security
apparatus against both civilian and other state institutions.
However, the Army’s investigation of the prison murders deserves our
approbation, as its transparency reflects a national desire to uphold the
rule of law.
The next question is to what extent can the Army be counted upon to
ensure that the slain men — and the people of Indonesia — receive
justice. The crux of the matter is the Army’s decision to try the elite
soldiers in a military court.
As we know, from the New Order era to the Reform era, the military
justice system has been a cause of public concern as it has been felt
that military courts have been less concerned with prosecuting the guilty
than civilian courts, leading to a failure to hold delinquent TNI members
to account for their actions.
Military courts remain a problematic part
of the nation’s law enforcement system. The main problem has been the
poor state of military jurisprudence: military judges previously decided
cases without regard to the principles of democratic and human rights.
During the New Order, and to some extent even until today, the military
justice system, from investigation to prosecution, has been closed. In
the Reform era, military courts continue to follow the chain of command instead
of the public conscience.
While in the past, the TNI commander was the highest authority in the
military justice system, this was changed by Presidential Decree No.
56/2004 and Law No. 49/2009 on judiciary power.
The Supreme Court now supervises military justice, while discipline has
been entrusted to the Defense Ministry.
Despite these laudable changes, the verdicts typically levied by military
courts continue to reflect the TNI’s chain of command rather than the
Supreme Court as the holder of the highest judicial authority in the
country.
Under the supervision of the Supreme Court, military courts should be
guided by a sense of justice and rule of law and not the chain of
command. Military authorities should not try to influence, obstruct or
deliberately direct the administration of justice.
In this regard, the TNI’s Law Development Board continues to control the
military justice system, including prosecutors and courts. This has
perpetuated a military justice system that continues to be unduly
influenced by the chain of command.
The rank-and-file assumption in the TNI is that military remains a “safe
haven” for the officers and enlisted who break the law. Based on a report
from Imparsial, a local human rights watchdog, there were 46 cases of
human rights violations committed by members of the TNI and National
Police between 2001 and 2006.
The average sentence of those convicted in the incidents was less than
four years. Meanwhile, the National Human Rights Commission reported 11
cases of violence allegedly perpetrated by TNI members against civilians
between 2009 and 2011 that resulted in a scant five prosecutions.
According to the reports, the military justice system has been unable to
live up to expectations to deliver justice for TNI members accused of
criminal acts. The system has continued to ensure that TNI members who
commit crimes can do so with impunity.
The sentences levied by military judges have been minimal, considering
the crimes, which have included homicide. A typical sentence is extra
duty, which has no deterrent effect. The public expects fairness,
democratic values and human rights to prevail in the legal process for
TNI members who commit crimes.
Empowering a sense of civilian justice and ending the impunity given the
TNI by military courts are a needed first step. The trial of the 11
Kopassus soldier should give a boost to completion of the military reform
agenda launched following the fall of new Order in 1998. ●
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