Friday, April 30, 2010

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.


colson said...

Being an outsider I should be careful having an opinion on such sensitive and complicated matter.
Nevertheless I take chances.

KPK is a mighty and very valuable tool to counter corrupt big fishes. It's record of successes created mighty foes.

By charging and attacking the men at the top of KPK, suspect institutions like AGO and Police have tried to undermine the effectiveness of KPK.

Indeed it may not have been the perfect decision in de setting of a functioning state of law to take both men of KPK off the hook. I think however a choice had to be made: either getting strangled in legal procedures and giving way to corrupt civil servants, officials and politicians hampering the battle against corruption or making it possible for KPK to go on undisturbed with it's mission.

The decision made was the best of two bad decisions.

Unknown said...

When President SBY stated that he preferred the Bibit-Chandra case to be settled out of court, the AGO should declare the case as cannot be prosecuted therefore should not be carried out. Note: there is a Dutch word we usually use i.e. "deponeer". Unfortunately, the AGO didn't use this procedure.
I am not sure whether KPK is really as mighty as it is according to the law.
One thing for sure is that people who used to support KPK are not satisfied at the slowness of the investigation of Bank Century case, Taxation case etc.
If we look back, KPK only investigated high profile petty cases like investigation of corruption at embassies and consulate abroad in which the money is very small compared to the big cases.