Due process of law is tested

When the case of retired African-American football player O.J. Simpson occurred in the 1990s, the US was shocked by the live TV broadcast during the pre-trial, with Kathleen Kennedy-Powell as judge. They were shocked because the US is a country that has a judicial system that maintains the principle of the presumption of innocence.

Taking photographs during a trial is prohibited, let alone broadcasting the of O.J. Simpson's case. Only illustrations are allowed.

Violating the principle of presumption of innocence shocked the American people because it was an obstruction of justice, there the enforcement of law and justice was intervened. After the marathon trial in the real case examination (of the merits of the case), O.J. Simpson was found not guilty and acquitted from the allegations of murdering his wife.

His lawyers persuaded some of the jury, who were African-American and Asian. But in fact, public opinion showed the assumption was that O.J. Simpson murdered his wife.

In the case of Bibit Samad Rianto and Chandra M. Hamzah, the public sided with the two Corruption Eradication Commission (KPK) deputies and the outcome of the case is hard to predict because the police insisted they have strong evidence that corruption suspect Anggoro Widjojo bribed the two.

President Susilo Bambang Yu-dhoyono set up an independent inquiry team for the case, which recommended Yudhoyono stop it due to lack of evidence. Yudhoyono then asked the Attorney General's Office (AGO) and the police not to take the case to court. The two institutions, although initially reluctant, changed their initial intention to bring it to court.

This means that Yudhoyono has intervened in matters of law enforcement and the judicial process. The 1945 Constitution clearly states that the Republic of Indonesia is a constitutional state (rechtsstaat), not a dictatorship (machtstaat). It states the judicial power shall be independent and free from intervention from executive and legislative power in organizing the judicature.

Article 24 paragraph (1) of the Constitution reads:

"The judicial power shall be independent and shall possess the power to organize the judicature in order to enforce law and justice."

The Bibit-Chandra case should be settled in court to decide who is guilty and to uphold the supremacy of the law. In addition, a win-win solution is not the way to settle a criminal case, but the way to settle a civil one.

If we look back, an out-of-court settlement is nothing new for Yu-dhoyono. There is the first case involving then State Secretary Yusril Ihza Mahendra, who accused the KPK chairman at the time, Taufiqurrahman Ruki, of being involved in the direct appointment without tender in the procurement of wiretapping at the KPK, which used the State Budget in 2005. Yudhoyono ended this enmity "according to customs", by gathering both parties in a limited coordination Cabinet meeting.

The second incident was the case of the non-budgetary funds of the Maritime Affairs and Fishery Ministry (DKP), in which then minister Rokhmin Dahuri admitted that the success teams of all presidential candidates during the 2004 presidential election, including Yudhoyono and Amien Rais, received the non-budgetary funds.

This created a commotion when Amin Rais admitted to receiving Rp 200 million (US$21,250) and asked other presidential candidates to admit it. Enmity ensuing in the form of comments in the media ended amicably in the VIP room of Halim Perdana Kusuma Airport where Yudhoyono and Amien met.

From the above incidents, it is clear that Yudhoyono tends to use out-of-court settlements, which threatens the principle of due process of law. The judicial process in a case needs to be upheld for legal certainty and justice, so in the future there will be no more debates due to the absence of a final and binding decision (in kracht van gewijsde), creating a time bomb for Yudhoyono's administration.

As mandated by the Constitution, the judicial process must be exercised without any intervention from the executive and legislative power in carrying out the judicature. An out-of-court settlement for a criminal case is a bad precedent for the government. The core of due process of law is to provide justice and legal certainty for everyone.

How can justice be achieved if the judicial process of the case of Bibit-Chandra is stopped?

The writer is an advocate and Chairman of the Indonesian Legal Studies Foundation.