Pelanggaran HAM dalam Hukum Keadaan Darurat di Indonesia (Studi Tentang Peraturan Perundang-Undangan dan Pelaksanaannya di Masa Orde Baru dan Reformasi)

Abstract

In exercise of Constitutional Law, state is recognized in ordinary condition and state as in emergency condition. The Transgression of Human Right could happen when the state in ordinary condition and in emergency condition. As to the title of this dissertation, the writer tries to deliver the transgression of human to the emergency condition but not to the ordinary condition/normal. The transgression of iman right could be happened to the state of emergency by conditionals, the status of emergency condition should be declared by the leader of state article. But the special steps should be done right and quickly by using the power and procedures especially without being influenced the government systems democratically that belongs to constitution. It means, the emergency leaders or the military emergency leaders must be obeyed to the principles and e international guarantee, such as the International Humanitarian Law as generally in the neva Conventions and the Aid Protocoler by appreciating highly and honouring the Human ight (HAM) as to the article No. 28 I verse (1) Constitution 1945. Because the objectives of the emergency state not to kill but only to strip and incapacitate the enemies and opponents, in order create the normal conditions as usual. In many European Continental Law that profess the tradition of civil law, such as in rance, India, Britain, and also Indonesia. The main issues about the emergency conditions are ranged explicitly in the Constitution of state, while in United State that profess the common w systems, the regulations of emergency conditions are not available in the legislations. Indonesia, the norms which rules the emergency conditions so many. In this dissertation, the emergency conditions ruled in 1945 Constitution and its explanations are ruled in Acts No. 23 nd government regulations 23 in 1959 about the emergency causes the condition, in Acts No. 7 in 1959 about mobilization and demolization. Even though, the regulation of human right has been ruled in the emergency conditions, 1 fact, there are so many happening the case of human right transgression in Indonesia. In story notes, since the new age (orde baru), the Soeharto's government up to the Reformation, the Republic of Indonesia has never set free from the various tragedies and extraordinary, either in political cases or in devences cases, economics and monetery, social and the blood agedies such as: booming terror, horizontal conflict, vertical conflict or the disasters in any local reas. Two big cases that interest the public intentions and international that happened during the law age and Reformation age that I raise up in this dissertation are Tanjung Priok Case in 1984 nd the Human Right Transsgressions in East Timor in 1999. The reason to choose these cases because both of them had in crach van gewijsde. The transgression of human right in East Timor pre-referendum in 1999, because of not being effectively exercising the military emergency conditions by President B.J. Habibie based n the President's decision No. 107 in 1999, dated on September 6, 1999; while in Tanjung 'riok's cases in 1984, because President Soeharto not exercising the emergency condition status 1 de jure have been presented the legal regulations that regulated them. But the government seemed to hide that emergency conditions, so that the President took a decision as an emergency condition in de facto. This causes happening the arrogant actions of the government that makes he human right transgressions. In practising in Indonesia, each applying status of emergency law susally followed by Human Right Transgressessions. The Indonesian government solve through

approach such as any kinds of legislations instruments either preventive, politics, or actions through adhoc court. From the background above, was found 3 main subjects to be discussed and analyzed ow the regulation of human right (HAM) in the law of emergency, what human right anssgressions called as the legal in the emergency state in Indonesia and how is the government solution to overcome the human right transgessions in the emergency conditions, especially in he case of East Timor and Tanjung Priok. The research of this dissertation is intended to make clear and analyze the limitation of research object on the statute approach, case approach and comparative approach that is related this topic, such as to recognize and analyze the regulation of human right in the law of emergency state, to recognize and analyze the legal human right transsgressions in the state of emergency in Indonesia, and to recognize and analyze the government's steps to handle the human right transsgressions in the emergency conditions especially in the human right transsgressions that happened in East Timor and Tanjung Priok, included to analyze the verdicts adhoc that related to the two cases above. Many new cases that found in this dissertation research that is, when the human right trassgression happening in the emergency conditions, especially in the military emergency and emergency, it should be through the right overcoming as to the law of emergency, that in extra ordinary law and for the time being, by building the special military courts as exercise in many states such as, United States, France and Britain. But the Judges composition consisted of from the general court and 2 from the military court. Meanwhile, the human right transsgressions handing with civil cases, no needed to be handled by the military court, as long s the general court still functions normally. The handing of human right transsgressions formerly based on the Acts No. 26 in 2000 bout the Human Right Adhoc was view not effectively, because that Acts was retroactifly and without any expired limits and over every results investigation and quenstions of human right transsgression should be got firstly the recommendation from legislation to get the President's lecissions about the human right adhoc on the human right transsgression. So the process of roofing through the Acts No. 26 in 2000 not accurately anymore because generally the legal vidences have been abolished and even the witness and the victims have passed away a lot. So hat is why, every human right transsgressions that were vonished by the human right adhoc was endenciously free. Another thing that found in this dissertation is about compensation that must e seperated from the legal process, for the shake of obtaining the victim's human right transsgressions correctly. And then about the judges' decissions, in order to get the decissions always considering the validation of the emergency condition that validated by the President. By doing so, the status of law emergency that is exception for the government to overcome and to solve the kinds of threatens and dangers to the state integrity, becomes the easy things and even e able to set free the securities apparatus that are the suspects of human right transsgressions in he emergency conditions.