Trial With Missing Justice


In August 2011, Indonesia’s Serang District Court sentenced 12 perpetrators of the attacks on Indonesia’s Ahmadiyah Congregation (Jamaah Ahmadiyah Indonesia or “JAI”) in Cikeusik, West Java. The Serang District Court convicted the 12 men for assault and destruction of properties. On 6 February 2011, a mob of approximately 1000 people attacked 20 Ahmadiyah members who were gathering in a private home of one of its members in Cikeusik. The incident claimed 3 lives of Ahmadiyah members while others suffered serious injuries.1 The reason this attack took place was because Ahmadiyah tenets are viewed to be contradictory to those of the mainstream Islam in Indonesia. Up until now, Ahmadiyah tenets have been banned in several provinces in Indonesia.

The men that were found guilty received sentences ranging from only three to six months of jail time even though they were found guilty of a crime that could be sentenced to up to seven years of jail time. None of the men were found guilty of murder.

Meanwhile, Deden Sudjana, JAI security chief, who was trying to defend the house and his colleagues, was sentenced to six months in jail and was also convicted of disobedience and assault in the case. Even a layperson could see what is wrong with this si1tuation. However, in the eye of the judges, they have implemented “justice” in exercising its judicial function through the Court’s verdict.

Conceptions of Justice

The Cikeusik case culminated a series of acts of intolerance towards minority groups in Indonesia. It can be easily predicted that the average person would conclude that justice was absent when actions resulting in loss of human life was only punished by several months of jail time.

To add context to this situation, let me present you with a case that was also decided by the Serang District Court. One and half years ago, justice was upheld against Tajibri, a village man from West Java. Tajibri was found guilty for stealing two ducks from his neighbor. The court sentenced Tajibri with 7 months of imprisonment. In light of the two situations, is it reasonable for anyone, who has a sense of humanity and a conscience to contemplate: Is this the system and set of laws that are supposed to protect the Indonesian people? Is this justice?

How could a duck stealer receive more jail time than people who took the lives of other human beings? Did the court consider that there was more “evil intention” in stealing the ducks rather than eliminating the life of “deviant” Moslems? 2

In other words, murder — organized, premeditated and captured on video 3 — is not much more of a crime than stealing a ducks.
Again, is this justice?

Retributive Justice as the First Theory About Justice

In the words of Francis Bacon (1626), an english philosopher, lawyer and also Attorney General of England on his essay “Of Revenge” it is the basic instinct of a human being to think that central concern of upholding the law and justice is retribution (to heal and do well). 4 Not only Bacon, but also Hammurabi, the king of the Mesopotamian age, views that justice only can be served through retribution. Do not forget the concept of ―an eye for an eye‖ that is written on the bible.

Immanuel Kant, as one of the prominent supporters of retributive justice also regards punishment as a matter of justice. He states that if the guilty are not punished, justice is not done. 5

To make a long story short, retribution focus on the necessity of punishing those who have violated norms, irrespective of the possible future benefits of prosecution, on the basis that the offenders deserve punishment for what they have done. 6 Therefore I understand if you are of the opinion that there is a lack of justice in the Cikeusik trial.

I do not want to explain the variety of complicated theory of justices, let me just give you a clear scheme: concept of “justice” is channeled through state power. It falls under the hand of the state, through its judicial authority. As said by social contract philosopers such as John Locke, Thomas Hobbes and JJ Rousseau, the state should be able to implement “social contract” to protect his people and exercise its judicial authority with all existing legal instruments. 7 The state owed an obligation to protect its people and safeguard their basic rights (erga omnes).8

Apart from the doctrine of justice, the sad truth that Indonesia has ratified 1966 UN’s International Covenant on Civil and Political Rights (ICCPR) clearly shows that there is “missing justice” in the Cikeusik Trial 9. ICCPR Article 18 clearly states that everyone shall have the right to freedom of thought, conscience and religion. This right shall include the rights of each individual to believe in any religion and to worship based on such religion of their choice. Despite its progress on so many fronts of human rights, the Cikeusik trial has showed that Indonesia still allows preachers of hate to foment criminal acts against others. In this topsy-turvy world, Ahmadiyah members can be killed for their belief that there was another prophet after Mohammed.

Tried Since the Beginning

From the beginning, judging from the prosecutor’s indictment on Cikeusik trial, it is clear that the investigation and prosecution was half-hearted. Prosecutors entered relatively light sentencing demands, for only 5-7 months. Prosecutors said the sentencing demands were fairly light because they believed that Ahmadiyah members played a role in provoking the attack. 10

Prosecutors believed that the sentencing demands were lighter due to evidence showing that members of the banned sect were systematically provoking riots by still conducting religious activities despite warning from the local police.
This phenomenon becomes easy to guess. Since the very beginning, JAI was considered to behold “evil intentions” because Ahmadiyah followers have tainted the image of the Indonesian Islam. The Ahmadiyah community has experienced hundreds of attacks in various places in Indonesia. 11

Back in 2008, the government officialy “endorsed” discrimination against Ahmadiyah by enacting a 2008 joint ministerial decree that prohibits Ahmadiyah members from performing their religious services in public, because Ahmadiyah is considered a deviant sect of Islam 12. Now, the government places the blame on the Ahmadiyah members for failing to halt their religious activities.

In conclusion, the government has “tried” the Ahmadiyah before the Cikeusik trial. The lesson to the people is that such attacks and prohibition are understandable. The Ahmadiyah members learn that they are without rights. Of course, such law enacted with lack of public justification basis.13 This is a frightening black mark on a nation that prides itself on being a bastion of tolerance guided by a 5 pillars principle called Pancasila, whose first pillar is religious freedom and also for the state that often boasted about making justice, law, human rights and democracy as a central priorities. 14

Fulfillment of Social Contract
In my opinion, the government has violated not only the set of laws and its conception but also the so-called social contract to protect all its people. The government has violated the principle of “open neutrality of the state” 15 endorsed in the state slogan Bhinekka Tunggal Ika (unity in diversity).

Indonesian people, including Ahmadiyah members have agreed to give up their natural liberty to the government of Indonesia. Therefore, the state has a reciprocal commitment in form of social contract to protect the rights of its people, including the very basic rights for freedom of religion.16

I believe that the government, under the existing set of laws that aim to protect all Indonesian people, should take a neutral positition toward all religions and beliefs without discrimination. Furthermore, as defined by John Rawls in The Theory Of Justice, to achieve justice in a pluralistic society, everyone should be guaranteed to have equal rights in basic liberty, including freedom of religion. Justice is the main object that must be fulfilled in the government’s social contract to its people17.

Therefore, Conception of justice plays a very fundamental role in a diverse community and guarantees the fulfillment of state’s social contract in this situation. Simple answer to the question of justice: the government has to act to end this saga by fulfilling its social contract to in order to protect its people and uphold justice.

CITATION
1 The Cikeusik incident has become international issue. See Human Rights Watch articles pertaining to the trial of Cikeusik incident. Indonesia: Monitor Trials of Deadly Attack on Religious Minority. June 16, 2011. Available at http://www.hrw.org/news/2011/06/16/indonesia-monitor-trials-deadly-attack-religious-minority. Also See my film’s essay on that tragedy “Sang Ahmad”.2011. Available on Youtube: http://www.youtube.com/watch?v=3xgGPrhB-lo

2In Criminal Law, “evil intention” (mens rea) serve as a basis in convicting the accussed persons. Based on the doctrine from common law, the ingredient that must be present for there to be criminal charges is the ―Mens rea‖ which in English means ―guilty mind‖. The use of ‖Mens Rea‖ shows that the prerequisite for an action to be the subject of criminal charges is related to the state of mind which can be translated as an ―evil intention‖. Actus non facit reum nisi mens sit rea which means “the act does not make a person guilty unless the mind isi proven guilty. See Ashworth, A. and Blake, M., ‗The Presumption of Innocence in English Criminal Law’.1996. Crim LR 306 for further reading.

3See my independent film’s essay about Cikeusik incident at http://www.youtube.com/watch?v=3xgGPrhB-lo

4Francis Bacon. Of Revenge. 1625. Francis Bacon wrote that Public revenge for the sake of bettering the community and making the person repent is justifiable. Available at http://www.authorama.com/essays-of-francis-bacon-5.html

5 See generally R. A. Duff and D. Garland, ‗Thinking About Punishment‘ in Duff and Garland, A Reader on Punishment, 1, 2–3.

6Robert Cryer, An Introduction To International Criminal Law and Procedure.Cambridge University Press, 2007. p19

7 Read Hobbes ‘Leviathan” or Francis Fukuyama “The Origins Of Political Order”. Farrar, Straus and Giroux (1992). Human beings agree to give up natural liberty to state – the state or leviathan enforces these reciprocal commitments in form of social contract. Thomas Hobbes. Leviathan. Pinguin Classic(2008 edition).

8 See Erga Omnes principle. International Court of Justice’s decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 34]:
“Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”

9 Read Elaine Pearson (the deputy Asia director of Human Rights Watch) comments on Cikeusik Verdict. ” Verdicts setback for religious freedom: Indonesian authorities should be making all-out efforts to bring to justice those who kill people because of their religious beliefs. The Cikeusik trial sends the chilling message that attacks on minorities like the Ahmadiyah will be treated lightly by the legal system” . Available at http://www.hrw.org/news/2011/07/28/indonesia-verdicts-setback-religious-freedom
10 Human Rights Watch in a statement criticized the police and prosecutors, saying they did not conduct a thorough enough investigation, failed to call key eyewitnesses to the stand and erroneously blamed the Ahmadiyah members for provoking the attack.

11 According from the Jakarta Legal Aid Institution Data there was 297 attacks against Ahmadiyah since 2003.

12 The government (Minister Of Religious Affairs. Interior Ministers and the Attorney General) enacted a joint ministrial decree as a “solution” to end the controversy about Ahmadiyah. Available at BBC Indonesia: http://www.bbc.co.uk/indonesian/news/story/2008/06/080609_ahmadiyah.shtml

13 Read my essay. “Where’s the Public Justification in Ostracizing Ahmadiyah”. Published by The Jakarta Globe, 2010. Available at http://www.thejakartaglobe.com/opinion/wheres-the-public-justification-in-ostracizing-ahmadiyah/410838

14 See Indonesia’s homepage in UN Office of the High Commisioner for Human Rights. available at http://www.ohchr.org/EN/countries/AsiaRegion/Pages/IDIndex.aspx

15 Rajeev Bhargava. Political Secularism. Essay.p3
16 Op.Cit, Francis Fukuyama. p55

17 John Rawls. Theory Of Justice. Harvard University Press, 1971.p177 The Main Idea of the Theory of Justice .

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