Ridarson Galingging, Jakarta
Judge Andi Samsan Nganro of the South Jakarta District Court has decreed in a pre-trial hearing that the recent decision by the Attorney General's Office (AGO) to terminate the prosecution of graft charges against former president Soeharto was invalid. The judge ordered the AGO to reopen the case.
The court determined that the AGO's decision did not comply with Article 140, paragraph 2, of the Indonesian Code of Criminal Procedure (KUHAP). The court rejected the prosecutor's argument that Soeharto's illness can be a basis for terminating the prosecution.
The court further stated that the prosecutor may drop a case only if the same case has been decided before (double jeopardy), if the suspect dies, if the case exceeds the statute of limitation, or if the matter is settled out of court. None of these situations applies.
The court's reopening of the corruption case against Soeharto gives a much-needed boost to the rule of law in Indonesia. But since it is unlikely that Soeharto will ever be able to appear in court to face charges, is there a basis in Indonesian law for him to be tried in absentia?
The question of an in absentia trial was not resolved in the decision issued by Nganro. The court only ordered that Soeharto's graft prosecution be reopened after Soeharto recovers from his illness. This keeps the case stuck on the question of doctors and medical tests and judgments -- all of which are viewed with considerable skepticism by the public, which wants to see justice and the resolution of the case.
An in absentia trial would end all the wrangling over whether Soeharto is really sick or not. His doctors could all go home.
But is trying a defendant in absentia compatible with every citizen's right to a fair trial? There are several applicable legal rules, but they are not consistent with each other. Thus it will be interesting to see where the court comes down on this issue later.
The International Covenant on Civil and Political Rights (ICCPR), ratified by Indonesia in September 2005 and cited by the AGO as one of its bases for terminating Soeharto's prosecution, states that ""in the determination of any criminal charge against him everyone shall be entitled to be tried in his presence.""
Thus the ICCPR rule states explicitly that the accused has a right to appear at trial. However, noted expert Stefan Trechsel pointed out in 2005 that the Human Rights Committee has found that this article ""cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence.""
Those who reject trials in absentia argue that the presence of the accused gives the court an opportunity to get a personal impression of the defendant, and to hear any statements he or she wishes to make. They question the value of a conviction and sentence if the person concerned is absent or the judgment cannot be enforced because the defendant is abroad.
Those favoring trials in absentia argue that waiting until the defendant can appear in court may allow the statute of limitations to run out before the justice process can be completed. There is also the need to carry out justice while the evidence is still available.
Noted Indonesian lawyer Buyung Nasution recently argued that ""the legal process in Soeharto's case is important for seeing that a moral standard and the values of truth and justice are upheld. The government should continue the legal process, if necessary through an in absentia trial, to declare whether or not Soeharto is guilty of anything. The government should take into account the fates of the thousands of people who were victimized by the policies of the Soeharto regime.""
Relying on a narrow interpretation of the rules for holding in absentia trials, Attorney General Abdul Rahman Saleh and Supreme Court Chief Justice Bagir Manan both argue that Soeharto's situation does not qualify. They maintain an in absentia trial is possible only when the suspect is physically absent in an effort to flout the law, such as when a defendant flees abroad.
If we look at Indonesian law, there is a strong legal basis for conducting an in absentia trial on corruption charges. The 1999 Law on Corruption Eradication allows for an in absentia trial, and there are precedents for such trials in corruption cases in Indonesia.
The Langkat District Court in North Sumatra tried former Langkat regent Zulkifli Harahap in absentia on corruption charges. From the beginning of the trial until the verdict was read, Zulkifli was in the hospital, and thus was never present in court.
The judges even conducted one session in the hospital because the prosecutors failed to present Zulkifli in court.
The circumstances of the Soeharto and Zulkifli cases are quite similar. The failure to take the same action against Soeharto as was taken against Zulkifli confirms public suspicions that fearful officials are going out of their way to bend the law to protect Soeharto from facing the legal process.
The real loser when this happens is the Indonesian legal system, and thus the public as well. Millions of Indonesian citizens were victims of Soeharto's crimes -- crimes that were far more damaging than those Zulkifli committed.
Sufficient bases exist both in Indonesian legal precedent and in international human rights conventions to try Soeharto in absentia. If the government is seriously committed to fighting corruption and upholding the principle of equality before the law, the trial of Soeharto in absentia must commence without further delay.
The writer (r-galingging2004@law.northwestern.edu) is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at Northwestern University School of Law in Chicago.
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