[Kabar-indonesia] In absentia trial for Soeharto: No more delays

[Joyo at aol.com]

The Jakarta Post 
Saturday, July 1, 2006

Opinion

In absentia trial for Soeharto: No more delays

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 at 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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