I was surprised to learn about President Susilo Bambang Yudhoyono’s decision to cancel his state visit to the Netherlands. This visit had been arranged based on formal invitations from Queen Beatrix and Prime Minister Jan Peter Balkenende that had been outstanding for almost four years.
The visit would have been the first in 40 years by an Indonesian head of state, and a historical milestone for the countries’ dynamic relations. Former president Abdurrahman Wahid did pay a visit to The Hague during his presidency but it was not regarded as a formal state visit.
President SBY’s scheduled agendas were to include a visit to Noordende Palace, the National Monument in Dam, Amsterdam, as well as visits to several cities in the country.
As we all know, the primary reason for the cancelation was an injunction filed with the The Hague Court, known as kort geding or expedited procedure, by John Wattilete, the self-proclaimed president of the Republic of South Maluku (RMS) movement.
The objective was for the court to issue an arrest warrant for President SBY on the grounds of torture and other human rights abuses inflicted on imprisoned RMS members in Indonesia.
As a head of state, President SBY was held accountable for such practices. The kort geding was filed on the day that President SBY and his entourage were scheduled to depart.
I presume that the news about kort geding was delivered to the President at the last minute, moments before the plane was to take off.
A journalist who had already boarded the plane told the accounts that the entourage had waited for the plane for almost two hours. This drastic decision has undoubtedly had an impact on the two countries’ relationship.
I believe in the strategic importance of this visit that would have strengthened the ties between Indonesia and the Netherlands, and was disappointed to learn of the cancelation.
President SBY should have gone along with the plan despite the development. Both Queen Beatrix and Prime Minister Balkenende had given their full assurance that the court request would not have affected his planned visit.
This assurance, I believe, can be understood as the Dutch government would not have executed the court’s order had the kort geding request been approved.
Moreover, it can be argued that the Dutch government would have challenged the proceedings had the decision been taken to issue such an arrest.
Under the provisions of international law, head of states enjoy full immunity while visiting other nations and thus cannot be subjected to any legal procedures such as arrests or court trials.
The immunity rights can be set aside only based on the decision of the International Criminal Court (ICC) in The Hague. An example was the arrest request issued by the ICC for the president of Sudan based on the ICC’s jurisprudence regarding immunity rights of heads of state.
Consequently, the Dutch government would have grounds to reject the kort geding decision on the ground of incompetence: the decision was not issued by a competent court, in this case the ICC.
As a democratic system, the Dutch government had no authority to prevent any legal action being brought to court by any citizen or organization.
Principally, a petition for injunction, kort geding, can be accepted by the court through its decision if the court sees sufficient and reasonable grounds for such action. This is part of the notion of the independent judiciary that is free from any intervention.
The kort geding was filed by John Wattilete on Monday, Oct. 4, declared by the court on the following day and was eventually rejected on Oct. 6. It has been made public that Wattilete plans to appeal the decision.
I believe that as an attorney, John Wattilete had calculated that his petition would be rejected by the court.
He must have understood the laws regarding immunity for heads of states.
Therefore, the main objective of his action was to attract public attention, especially from the Dutch public, similar to the objectives of RMS’ past actions such as their attack on the Indonesian ambassador’s house and the hijacking of a commuter train in Drentse de Punt, both in 1970s.
It was widely believed that President SBY’s state visit would also have been marked by massive demonstrations by RMS members and supporters.
It would have been the responsibility of Dutch authorities to ensure such demonstrations did not affect President SBY’s visit.
Now the decision has been made. It is hard not to argue that the decision will have significant impacts on the ties between the two countries.
The clear winner in this was the RMS, which has enjoyed extensive publicity — something essential to their cause.
They have conveyed a clear message that the organization still exists and is very much active.
The main loser is the relationship between Indonesia and the Netherlands, something both countries value highly.
I regret the decision and question the management of the government that shaped this decision. President SBY should expect to get credible advise from his team: the Foreign Minister and the Justice and Human Rights Minister. Is this a clear sign of pure incompetence?
The writer is chairman of the Papua Forum and vice chairman of the Institute of Constitutional Studies.
