The New Attorney General: Basrief Arief

President Susilo Bambang Yudoyono (SBY) announced on Thursday evening the appointment of Basrief Arief as the new Attorney General.

Basrief, former Vice Attorney General 2005-2007, will replace former Attorney General Hendarman Supanji and take over the day-to-day job from Acting Attorney General Darmono.

President SBY will induct Basrief as Attorney General tomorrow.

Although Basrief Arief has retired three years ago, I hope that he would be able to improve the performance of the Attorney General Office among others prosecution of corruption cases.

Photo : Courtesy of Detik.

Prosecution of Bibit-Chandra

Last Friday, Acting Attorney General Darmono told reporters about his decision to " deponeer " i.e set aside, the prosecution of two deputy chiefs of the Corruption Eradication Commission (KPK) Bibit Samad Rijanto and Chandra Hamzah.

Darmono explained that this action is necessary to serve greater public interest i.e. to safeguard the fight against corruption. In this connection he will seek the supports of the Parliament, the Constitutional Court and the Government.

Although this decision is considered by many people as the best option for Bibit-Chandra, but considering that it is contradictory to an earlier verdict of the Supreme Court which ordered the resumption of said prosecution, and because Darmono is not a definite Attorney General, there might be a possibility that it may be challenged.

Photo : Courtesy of Mata News

Sources :
-  Kejaksaan Agung Resmi Putuskan Deponeering Kasus Bibit-Chandra (TVOne)
-  Deponeering kasus Bibit-Chandra lawan perintah pengadilan (Primaironline)

No more Book Ban

Yesterday, the Constitutional Court passed a historical verdict which canceled a law that provides authority to the Attorney General to ban books and other printed materials.

According to the said Court, the Law No 4/PNPS/1963 regarding "Securing Printed Materials whose content might Disrupt Public Order" is contradictory to the Constitution of 1945.

It also ruled that the banning of printed materials should only be done through a Court's verdict.

Please find below a news article that I quoted from The Jakarta Globe.

This is really a Great News that provide great opportunity for Indonesian writers to make great writings.

Indonesian Attorney General Loses Power to Ban Books
Camelia Pasandaran, Heru Andriyanto & Ismira Lutfia | October 14, 2010

Jakarta. In a landmark verdict, the Constitutional Court on Wednesday struck out a law that gave the Attorney General’s Office the power to ban books, saying such power should rest with a judicial court. 

“The 1963 Law on Securing Printed Materials whose content could disrupt public order is against the Constitution,” court chief Mahfud MD said. “The law is no longer legally binding.” 

Justice Ahmad Fadlil Sumadi gave a dissenting opinion but his argument was not immediately clear. 

Muhammad Alim, another justice, said that in a state governed by law, confiscating or banning publications and books should be done through the process of law.   
Read more .....................

The Attorney General's Term

Today, the Constitutional Court made a confusing ruling on the office term of the Attorney General (AG) Hendarman Supanji.

On the one hand the Court ruled that the AG's term should ended along with the end of first term of President Susilo Bambang Yudoyono and his Cabinet last October.

But on the other hand, the Court ruled that any decisions made by said AG prior to this ruling, will remain valid.

The ruling itself was made in response to the challenge on Hendarman's position as AG by former Minister of Justice Yusril Ihza Mahendra who was charged last June by the AGO in a Corruption case pertaining to a setting up of a Website at the Ministry of Justice. 

After making the announcement, the Chief of the Constitutional Court Mahfud MD told reporters that the confusion occured because the Attorney General Office Law Article 22 does not provide certainty on the AG's office term, therefore the law must be reviewed. He added that the prosecution against Yusril is legally valid therefore should be continued.
 
This ruling has obviously made Yusril very happy.

Considering that the Attorney General is the highest legal prosecutor in this country, I hope that President would immediately make a decision to solve this matter i.e. either to reinstate Hendarman as AG or find another person to take the job.

Related media reports :
-   Surprise Ruling Sees Attorney General Lose Job (The Jakarta Globe) 
-   Benny : President Harus Segera Bersikap Soal Jaksa Agung (Tempointeraktif) 

Photo: Courtesy of Kompas.

Yusril and the Attorney General

On 24 June, the Attorney General Office (AGO) has named Former Minister of Law and Human Rights (1999-2004) Yusril Ihza Mahendra, and Hartono Tanusoedibyo the owner of PT. SRD, as Suspects in the alleged corruption case at the Department of Law and Human Rights.

The AGO alleged that Yusril had appointed, without tender process, PT. SRD to develop and administer
the Department's Legal Entity Administrative System (Sisminbakum) i.e. an online system for processing applications pertaining to the setting up and processing of Legal Entity. It was said that due to this fact the state has suffered financial losses amounting to Rp 420 Billion.


Earlier, the President Director of SRD Yohanes Woworuntu and 3 former Director Generals of the General Legal Administration i.e. Romli Atmasasmita, Syamsuddin Sinaga and Zulkarnain Yunus have been sentenced by the courts.  

On 1 July, Yusril came to the AGO, but he refused to be investigated because he claimed the the position of the present Attorney General Hendarman Supanji is ilegal. He said that Hendarman is part of the first Cabinet of President Susilo Bambang Yudoyono (SBY) that ended on 20 October 2009, after which Hendarman was not among those who were sworn in as Cabinet members. Due to this fact, the AGO's decision to name him as Suspect is also illegal.
Yusril also stated that the decision to name him as a Suspect is part of the government's efforts to divert people's attention from the Rp 6.7 Trillion Bank Century Bailout case.

On 6 July, Yusril requested the Constitutional Court to conduct a Judicial Review on Hendarman's legitimacy as Attorney General.

On 12 July, Yusril finally agreed to be questioned for four hours by the AGO. During a talk-show on TV-One that evening, featuring Yusril and several lawyers, it was revealed that the appointment of SRD was actually a business based on Build-Operate-Transfer (BOT) method in 2000, whereby SRD provide everything needed for the online system and operate it for 10 years. The profit is to be shared 90% for SRD and 10% for the Cooperative of the Dept. Law and Human Rights.  

Considering the above, I hope that the above case(s) would be processed thoroughly.

Sources for this post :
-  Yusril Ihza Mahendra's Website  
-  About Yusril Ihza Mahendra (Wikipedia)
-  Yusril dan Hartono TanoeTerancam Pasal Pidana Seumur Hidup (Detik)
-  Yusril : Hendarman Jaksa Agung tidak Sah (Tempo)
-  Kejaksaan Agung Bantah Hendarman Tidak Sah (Tempo)
-  Kisah Sisminbakum Nan Ruwet (BeritaSatu)
-  Siang ini Yusril Ajukan Judicial Review Status Hendarman (TribunNews)
-  Yusril : Sisminbakum Pengalihan Isu
-  Kasus Sisminbakum, 4 jam diperiksa, Yusril belum ditahan (Harian SIB)
-  Kasus Sisminbakum Belum Tutup Buku (Tempo)
-  Yohanes Woworuntu Bawa Kasus Sisminbakum ke KY (Kontan)

KPK oh KPK

On 3 June, the Jakarta High Court ruled that two Vice Chiefs of the Corruption Eradication Commission (KPK), Bibid Samad and Chandra Hamzah, must be Prosecuted for alleged Extortion and Abuse of Power.

This ruling confirmed the verdict of South Jakarta District Court which accepted the Pre-Trial request filed by Anggodo who rejected the District Attorney's cessation of Prosecution against both men, therefore the trial should be resumed.

According to the Criminal Procedural Law the above High Court's ruling is final for Pre-trial cases, therefore the District Attorney should resume its Prosecution at the District Court.

Many legal experts suggested the Attorney General Office to close down the said case on the grounds of public interest. But yesterday, Attorney General Hendarman Supanji announced that his office plan to initiate an extraordinary procedure for this case, i.e. request a Judicial Review with the Supreme Court.

Please find below a news report that I quoted from The Jakarta Globe.

AGO Takes Its KPK Battle to Supreme Court

The Attorney General’s Office on Thursday announced that it would mount an extraordinary challenge to a High Court ruling that overturned its decision last year not to prosecute a controversial case against two antigraft deputies.

It plans to file a request for a judicial case review directly with the Supreme Court.

“The AGO will undertake an extraordinary legal effort, or a case review, regarding the ruling of the High Court in the pretrial case with the reasoning that the considerations of the judges in that ruling showed a real mistake,” Attorney General Hendarman Supandji said.

Speaking at President Susilo Bambang Yudhoyono’s office after consulting with him on the case, Hendarman said his office would not directly appeal the decision, as the law does not allow appeals of pretrial rulings.

Two Corruption Eradication Commission (KPK) deputies, Chandra Hamzah and Bibit Samad Rianto, were declared suspects in September for allegedly abusing their powers and committing extortion related to a case involving graft fugitive Anggoro Widjojo.

However, the AGO was forced to halt the case in December after the Constitutional Court played shocking wiretapped phone conversations indicating a plot to bring down the two and after Yudhoyono urged the termination of the case amid a public uproar.

The AGO was criticized afterward for not halting prosecution by invoking the public interest — known by the Dutch term “deponering.”

But Hendarman said on Thursday that this had also been out of the question as it would have been time-consuming, requiring the approval of all three branches of the government — the executive, judicial and legislative.

He pointed out that the legislature had requested that the case be processed in line with the Code of Criminal Procedures, which does not recognize the dropping of a case, while the High Court, part of the judicial branch, had ordered the trial to proceed.

Meanwhile, Muhammad Ama­ri, the deputy attorney general for special crimes, confirmed that the current status of Chandra and Bibit was still as suspects, based on the High Court ruling, which upheld a district court decision, that insisted the prosecution should proceed.

“They are suspects now,” Amari said. “But we see no reason we should detain them.”

The law requires a suspect to be detained if prosecutors have reason to worry that he or she will flee justice, repeat the offense or destroy evidence, “but we believe Chandra and Bibit will not do that,” Amari told a news conference at the AGO.

“We have only two remaining options: go to court [to challenge the decision] or request a case review,” he said. “We decided to ask for a case review because we believe we were right when dropping the case.”

A case review requires new evidence or strong argumentation to be presented, and Amari said the two courts had made “a blatant mistake” that the AGO may challenge.

“In their verdicts, the courts ruled that once prosecutors declared a criminal case as complete, it must be brought to the court for trial, whereas Article 139 of the Code of Criminal Procedures allows us to examine further and assess whether or not it’s worth trying by the court.

Other articles in the code allow us to terminate a case when we eventually find that it’s not worth trying,” Amari said.

Renowned legal expert Todung Mulya Lubis denounced Hendarman’s decision as ambiguous because a case review would be time-consuming, the very reason the chief prosecutor used against the deponering option.

“The best option remains deponering. It produces a solution once and for all,” Todung told the Jakarta Globe, adding that halting the prosecution would be “to rescue the Corruption Eradication Commission, not just Bibit and Chandra.”

Taufik Basari, the lawyer for Bibit and Chandra, said his clients’ concern was not having to face the court, but that if the case went to trial “then the judicial system legitimizes a fabricated case and rules in favor of a man like Anggodo.”

Taufik also said naming his clients as suspects would lead to their suspension from the KPK, leaving only two active deputy commissioners.

Cancellation of Prosecution

On 19 April 2010, the District Court of South Jakarta passed a pre-trial verdict stating that the cancellation of prosecution against two Deputy Chairmen of the Corruption Eradication Commission (KPK), Bibit and Chandra, by the Attorney General Office (AGO) has been illegal therefore the trial should be revived.

This Court's verdict received contradictory reactions from the public. Some people agreed saying this will determine the legal status of Bibit and Chandra, if they are right than their position would be stronger. Some others disagree saying that the AGO canceled the prosecution based on the instruction of President SBY to settle the case out of court. While the AGO said that they will file and appeal with the Jakarta High Court.

In this regards, I would like to share with you a relevant article in The Jakarta Post (below) written by a senior lawyer who is a member of several prominent legal committees namely Frans Hendra Winarta.

Ignorance, a disaster for law enforcement

Frans H. Winarta, Jakarta | Fri, 04/30/2010 8:35 AM | Opinion

The pretrial verdict of the South Jakarta District Court on Bibit S. Rianto and Chandra M. Hamzah of the Corruption Eradication Commission (KPK) is not unpredictable.

The cancellation of the prosecution of Bibit and Chandra, which was already declared complete by the National Police chief and the Attorney General, ignored the due process of law.

Some say the cancellation of the prosecution of Bibit and Chandra is a correct legal sociological decision because it is in line with the people’s wishes and in accordance with their sense of justice.

However, it should be noted that an intervention from the power holders that the people’s wishes be heard will further weaken law enforcement in Indonesia.

In law enforcement, justice is a must. But in a case like the Bibit-Chandra one, which was about to be submitted to the court for hearing and was then canceled because of a presidential order, as well as pressure from the public that it be halted, the due process of law must also be observed.

The public’s massive support for Bibit and Chandra through Facebook has turned into disappointment, as the KPK has not become stronger and efficient, but indecisive when confronted with big corruption cases.

In handling the Bank Century scandal, for example, the KPK look as if they do not know how to handle it.

Worse is the KPK seems at a loss when handling the alleged tax fraud involving PT Ramayana Lestari Sentosa boss Paulus Tumewu.

In fact, I have reminded everyone of the danger of ignoring the due process of law and its impacts on law enforcement, especially anti-corruption.

If only Bibit and Chandra had been questioned under the supervision of the Judicial Commission, the National Ombudsman Commission, the National Human Rights Commission, the National Law Commission and the Financial Transaction Reports and Analysis Center, within two to three months, the case would have become final and Bibit and Chandra may have been released from their legal problems and could have turned all their attention to leading the KPK in the fight against corruption.

However, unfortunately the eight-member presidential supervisory team did not anticipate the impact of their recommendation on the fate of law enforcement.

The brief victory brought euphoria to the public who simplified Bibit and Chandra as the personification of the KPK, whereas in fact Bibit and Chandra are not the same as the KPK.

Let’s hope that the prosecutor’s office will file an appeal against the court’s pretrial verdict and subsequently the Jakarta High Court will annul the lower court’s verdict, so that both Bibit and Chandra can continue their work at the KPK. The prosecution against Bibit and Chandra may not necessarily weaken the KPK. It is the attitude of KPK leaders, who are indecisive and easily swayed, which will weaken the KPK itself. Let’s hope that all of these matters can be resolved quickly because a weak KPK will only foil the corruption eradication agenda of the SBY administration itself.

Indeed, we are currently facing a dilemma of law enforcement that is mixed with political intervention. This political intervention turns out to be a disaster for law enforcement in Indonesia.

If the Jakarta High Court upholds the pretrial verdict of the South Jakarta District Court, Bibit and Chandra had better face the court proceedings to clear their names from all the allegations. If they are acquitted of all the charges, it will be proof that efforts to weaken the KPK are real and do exist. Otherwise, all the accusations of attempts to weaken the KPK are groundless.

The writer is chairman of the Indonesian Advocates Association (Peradin). The opinions expressed are personal.

Anggodo vs. KPK Leaders

The faith of those who are directly or indirectly involved in corruption can be better than those who are fighting corruption.

That's what I thought when I read on The Jakarta Globe that the District Court of South Jakarta has accepted the petition filed by Corruption Suspect Anggodo Widjaya for cancellation of the Attorney General Office's decision to discharge Vice Chairmen of the Corruption Eradication Commission (KPK) i.e. Chandra Hamzah and Bibid S. Waluyo from prosecution.

With this Court's decision, the Attorney General Office will have to revive its Prosecution against both KPK leaders.

April 19, 2010

Jakarta Globe

Anggodo Widjojo in this file photo outside the Corruption Eradication Commission (KPK). The controversial businessman and graft suspect is back, at that is bad news for KPK deputy chairmen Bibit Samad Rianto and Chandra M Hamzah. (Antara Photo)

Anggodo Revives Prosecution of KPK Deputies 

Corruption suspect Anggodo Widjojo has been able to revive the controversial and allegedly bogus criminal case against respected Corruption Eradication Commission deputy chairmen Bibit Samad Rianto and Chandra M Hamzah.

The South Jakarta District Court on Monday accepted a motion filed by Anggodo — the brother of fugitive businessman Anggoro — against the decision of the Attorney General’s Office to abandon its prosecution of Bibit and Chandra.

President Susilo Bambang Yudhoyono had publically urged that the hugely unpopular prosecutions be abandoned in the wake of public outrage and the findings of a presidential task force that concluded the charges were part of an alleged conspiracy involving elements of the AGO, National Police and Anggodo himself to bring down the commission, also known as the KPK.

Bibit and Chandra were initially charged with abuse of power and allowing Anggoro to flee to Singapore but it was widely acknowledged that little evidence existed.

Prosecutors, on the back foot last year, said at the time that prosecuting the deputies would be more “harmful than beneficial to bring the bribery case to the court.”

Anggodo challenged the AGO’s argument, saying that public pressure had been applied in reaching the decision, which was not in accordance with the Criminal Procedures Code and therefore violated the law.

The decision to revive the prosecution was made by the sole Judge Nugroho Setyadi.

KPK spokesman Johan Budi was not immediately available for comment.

Is Antasari Azhar Guilty ?

During trial of former Chief of Commission for Eradication of Corruption (KPK) Antasari Azhar at South Jakarta District Court, last Thursday, former Chief of Police Investigation Comr. Gen. Susno Duadji said that he didn't know about the investigation on the murder case.

Susno said that he was never appointed to investigate the case, because the Chief of National Police Bambang Danuri has appointed Susno's Deputy Insp.Gen. Hadiatmoko to the job and report directly to Gen. Bambang.

Susno's statement has made the Antasari Case became more weird every day, because Susno's appearance in Court, wearing Police uniform, was strongly protested by the Police top brass because he has not requested for prior approval from the Police Chief.

Antasari Azhar was arrested by the Police and prosecuted by the Attorney General Office (AGO) on charges of murdering Nasruddin, Director of a state owned company.

During the trial, some prime witnesses, and defendants, have canceled/withdrew statements that they have given earlier to the Police.

Police Colonel Wiliardi Wizard, who was accused of coordinating the murder execution including two motor bikers who shoot Nasrudin in his car after leaving a golf course in Tangerang, Banten, canceled his earlier statement and even apologized to Antazari at the trial.
The alleged executors, who were untrained ordinary men, did the same cacellation.
The Forensic expert, Abdul Mu'nim, stated that he received Nasrudin's body already manipulated i.e. hair already cut and wound in forehead already stitched, therefore he cannot provide a reliable visum.

Moreover, two Deputy Chiefs of KPK, Bibit and Chandra, who were arrested by the Police on several unproven allegations have been released and re-installed to their offices at KPK.

For details, please click here and here.

Considering the above, some people are beginning to question whether or not Antasari Azhar is really guilty for the murder, or he is only a victim of the alleged conspiracy to weaken the KPK. In order to shed away such disturbing doubts, I hope that the Court proceedings of this case will reveal the real truth so that legal certainty and justice can prevail in Indonesia.

Ex-Governor of Bank Indonesia Jailed

On Tuesday, 16 June, Ex-Governor of Bank Indonesia (BI) Sahril Sabirin was sent to the Cipinang Penitentiary, East Jakarta, to serve his two years sentence passed by the Supreme Court in its Judicial Review for his role in the now defunct Bank Bali credit scandal case in 1999.

According to The Jakarta Globe, Sahril (65) was disappointed with this verdict considering that earlier the Supreme Court has confirmed the verdict of the Jakarta High Court that freed him of charges made by the Prosecutors. However, he said that as a law abiding citizen, he would serve the sentence.

Another Defendant in the same case, businessman Djoko Tjandra, failed to appear to serve his sentence, therefore the Attorney General Office will serve him a second summons. More details about Djoko Tjandra shall be discussed in a separate post.

Sahril Sabirin is the second ex-Governor of BI jailed after his successor Burhanuddin Abdullah was sentenced to 8 years imprisonment last year for a different corruption case.

Detik reported that earlier Sahril was sentenced by the District Court of Central Jakarta to 3 years imprisonment, but was later freed by the Appellate Court (High Court), and by the Cassation Court (Supreme Court).
Due to these facts, the Prosecutors have requested the Supreme Court to conduct Judicial Review. According to Sahril’s lawyer M. Assegaf the verdict is contradictory to the Criminal Procedural Law (KUHAP) Article 263 which stated that a Judicial Review should be submitted by a Defendant. Although the Justice Law stipulated that a Judicial Review can be requested by any parties concerned, the Constitutional Court has decided 'the parties concerned' should be interpreted as the Defendant and its heirs. Due to this controversy, Sahril and his lawyer are planning to challenge said Supreme Court's verdict.

I hope that the further processing of this case would be carried out smoothly according to the valid laws, and would not be politized by Candidates who are running for the Presidential Election on 8 July 2009.

The Prosecutor's Website

In the last few months, the news media has reported about Prosecutors who have not done their job properly, two lady Prosecutors have even been arrested by the Jakarta Police for alleged selling of Illegal Drugs used as evidence in a Court case.

In order to improve its image as a law enforcement agency and to enable the public submit reports regarding anything related to the Prosecutors, on Wednesday, 26 May, the Attorney General Office (AGO) has launched the website: www.kejaksaan.go.id.

In this regards, Detik quoted the Deputy Attorney General Mochtar Arifin as saying that the public should not be afraid to submit their report because they shall be treated confidentially and shall be followed up immediately.

The launching of the website shows that the AGO is very serious in improving its performance.

Investigation on Anti Corruption Chief

Since it was established in 2002, the Commission for the Eradication of Corruption (KPK) has been trying its best efforts to combat corruption in Indonesia.

Due to this reason, I was very surprised when I read on Tempointeraktif that the Attorney General Office (AGO) has announced the Chief of KPK i.e. Antasari Azhar, a former AGO’s Director, has been declared by the Police as a Prime Suspect in the bloody killing of Nasruddin Zulkarnaen, Director of state owned company PT Putra Rajawali Banjaran, who was shot by 2 men riding a motorcycle on his way home from playing golf at a golf course in Tangerang, Banten.
The Deputy Attorney General Wisnu Subroto was quoted as saying that based on the Police’s request; the AGO has banned Antasari from traveling abroad, so as to facilitate the investigation.
However, Antasari denied that he has been involved in the murder, saying that Nasrudin has been reporting to KPK about corruption.

It was said that the possible cause of murder was that Antasari and Nasruddin were fighting over a Golf Caddy Girl who was married by the latter through Islamic Siri way. And last Wednesday the Police have arrested 9 persons who are connected to the murder.

Further, Viva News reported that the Jakarta Police has summons Antasari to come to its office on Monday, 4 May 2009 at 10 am. to be questioned as a Witness in the murder of Nasruddin, Crime based on Penal Code Art. 340 (Pre-meditated Murder) in conjunction with Art. 55(1); Alternatively Art. 338 (Murder).

In spite of the contradiction between the AGO’s statement and the Police summons as to the status of Antasari, I hope that this case would be investigated thoroughly so that in the end the truth shall be revealed and justice shall prevail.

Drugs Dealing Prosecutors

Illegal Drugs business seems to be very attractive for some people, including few law enforcement officers, that they would be tempted to take part in the business.

That's what I though when I read an article in today's Kompas Newspaper Page 25 regarding Irvan, a Police officer in North Jakarta who was caught by the Police for selling 343 Ecstasy pills at a nightclub in North Jakarta.
What shocked me is that during the investigation, Irvan confessed that he got those drugs from two lady Prosecutors i.e. Ester Tanak and Dara Veranita, who were handling Drugs case at the District Court of North Jakarta in which M. Yusuf was the Defendant. Those drugs are part of the 5,000 Ecstasy pills confiscated by the Police during a raid at an apartment in Kelapa Gading, North Jakarta.

And what shocked me even more is that the Police can only process the case of Irvan, but has to release the two prosecutors at 2 pm today because the Attorney General Office (AGO) has not given the Police a permit to detain them. But the AGO’s Public Relation officer i.e. Jasman Simajuntak denied this allegation. He said that his office would issue the permit if the Police made a written request, in stead of a verbal request, for said detention as stipulated by the Prosecution Law No. 16 Year 2004 Art. 8 Par.5.

In reaction to the above, head of anti drugs organization GRANAT Henry Yosodiningrat stated that the release of those two lady Prosecutors would create public assumption that the AGO is protecting their "nasty" Prosecutors.

Now that the real reason for obtaining the AGO's permit have been known, I hope that the Police would issue the written request and send it to the AGO, so that the two prosecutors can remain in detention. Therefore, this illegal Drugs case can be prosessed ASAP and those involved could be punnished accordingly.