Defendant's Motion to Set Aside Default Judgment - Center for ...

More documents

Recommendations

Info

Law of the Republic of Indonesia No. 26 of2000, dated November 23,2000 Concerning theHuman Rights Court, established a Human Rights Court in Indonesia and authorized the Attorney.General to investigate allegations of gross human rights violations, including those in East Timor.}g. at 13 and Exhibit A attached thereto. Article 43 (I) Law No. 26 of2000 detennined that grossviolations of human rights which occurred before Law No. 26 became applicable, should beexamined and judged by an Ad Hoc Human Rights Court.}g. In order to implement this provision,the President of the Republic of Indonesia issued Presidential Decree No. 53 of2001, dated April23,2001, Concerning the Establishment of the Ad Hoc Human Rights Court, within the CentralJakarta District Court, amended by Presidential Decree No. 96 of 2001, dated August 1, 2001,Concerning the Amendment of the Presidential Decree No. 53 Of200 1. M. and Exhibits B and B-1,attached thereto. Because the alleged gross violation of human rights in East Timor set forth in theplaintiffs' Complaint occurred before the issuance of Law No. 26 of2000,jurisdiction over suchclaims in that Complaint lie with the Ad Hoc Human Rights Court in the Central Jakarta DistrictCourt. 19.. This court is functioning and fifteen Judges were appointed to the Human Rights Court.M. Thus, plaintiffs could have brought their claims against Lt Gen. Lumintang before the Ad HocHuman Rights Court in the Central Jakarta District Court. 1.4.1S15 As a result of the investigations of the National Commission which were turnedover to the Attorney General's Office, members of the military were investigated or interrogatedby the Attorney General's Office beginning in January 2000 and continuing through February2002. !d. at 18. As a result of the investigations, a list of 19 persons suspected of havingcommitted gross violations of human rights in East Timor was released by the AttorneyGeneral's Office to the official Indonesian press. M. at 110. This list was published on January30, 2002 and included one Army Major General, one Army Brigadier General, three ArmyColonels, three Army Lt. Colonels, one Police Brigadier General, three Police Lt. Colonels andvarious other military personnel. M. Seven of these 19 suspects have been indicted and arescheduled for trial before the Human Rights Court. !d. at 1 11.24
Thus, there are local procedures in both East Timor and Indonesia available to the plaintiffsto redress their claims.The plaintiffs have failed to pursue and exhaust those procedures.Therefore, the Court lacks subject matter jurisdiction over the TVP A claims and judgments basedon the TVPA are void as a matter of law and should be set aside. 16E.The Judgments Should Be Set Aside Under Rule 60(b)(6) Based on theExtraordina['y Circumstances of the Case and the Substantial Interests of Justice.Under Rule 60(b)( 6), relief from a judgment or order is also permitted when relief willfurther the interests of justice without affecting the substantial rights of the parties. The reliefprovided by Rule 60(b) is equitable in character and is to be administered upon equitable principles.DiVito v. FidelitY and Denosit Compan~ of Ma~land. 361 F.2d 936, 939 (7th Cir. 1966). InKlannrott v. United States. 335 U.S. 601 (1949), the Supreme Court stressed that courts should applyRule 60(b)( 6) whenever such action is appropriate to accomplish justice. ~. Anderson v. Chevron~, 190 F .R.D. 5, 9 (D.D.C. 1999)( citations omitted).The District of Columbia Circuit has stated:In fact, we have construed Rule 60(b)( 6)' s catchall provision, allowing correction for16 Moreover, by its plain language, the TVPA renders liable only those individualswho have committed torture or extrajudicial killing "under actual or apparent authority, or colorof law, of any foreign nation." Kadic. 70 F.3d at 245. Legislative history conflrInS that thislanguage was intended to "make clear that the plaintiff must establish some governmentalinvolvement in the torture or killing to prove a claim" and that the statute "does not attempt todeal with torture or killing by purely private groups." 14. Private individuals may act under colorof law for TVP A purposes when they act in concert with state officials or with significant stateaid. 14. at 245-246. To the extent that the plaintiffs are alleging that Lt. Gen. Lumintang acted inan individual capacity, the Court has no subject matter jurisdiction over the TVP A claims. Tothe extent that the plaintiffs are alleging that Lt. Gen. Lumintang acted under color of law, theCourt has no subject matter jurisdiction over the TVP A claims because the plaintiffs have failedto allege how he acted with state officials or with significant state aid.25
Page 5 and 6: as training and education, payment
Page 7 and 8: or anywhere else in the United Stat
Page 9 and 10: IV.ArgumentA Rule~) of the Federal
Page 11 and 12: F.2d 337, 343 (D.C. Cir. 1962); Her
Page 14 and 15: person, property, or risk, contract
Page 16 and 17: However, "the continuous and system
Page 18 and 19: Com. v. Walsh, 197 F.R.D. 196, 198
Page 20 and 21: D.The Court Did Not Have Subject Ma
Page 22 and 23: the Court has no subject matter jur
Page 26 and 27: "any other reason justifying relief
Page 28 and 29: Id 18-.In conducting an investigati
Page 30 and 31: operations. The Amly Chief of Staff
Page 32 and 33: Chapter II of Presidential Decree N
Page 34 and 35: .c.l) To propose considerations and
Page 36 and 37: subordinate soldiers in East Timor
Page 38: Certificate of Servicehereby certif

Defendant's Motion to Set Aside Default Judgment - Center for ...

Create successful ePaper yourself

Delete template?

Save as template?