Can former president be held criminally liable?<\/p>\n
By Stefanus Haryanto<\/p>\n
BATAM, Riau (JP): It took long time, the public's demand that
\nSoeharto be summoned to the Attorney General's Office for
\nquestioning became reality.<\/p>\n
Flanked by his lawyers, Soeharto was questioned for four and
\nhalf hours by senior prosecutors about alleged abuse of power
\nduring his reign as the president of Indonesia for almost 32
\nyears.<\/p>\n
Before a flock of journalists who had been waiting for his
\ncomments, Soeharto said that nobody was above the law but as a
\ncitizen he also had the right to attain legal protection from the
\nstate.<\/p>\n
Whether Soeharto is criminally liable became a controversy
\nafter former deputy attorney general Adi Andojo openly stated
\nthat in his opinion, it was very difficult to make Soeharto
\ncriminally liable for his abuse of power during his presidency.
\nAndojo, in an interview broadcast by ANteve on Dec. 11, argued
\nthat abuse of power was not a crime.<\/p>\n
Because Andojo is well known as a former \"clean\" judge, his
\nopinion is taken seriously by laymen, who may otherwise turn to
\n\"street justice\" in order to make Soeharto liable for his actions
\nin the past.<\/p>\n
To avoid such a misunderstanding, it is important that
\nAndojo's opinion is clarified.<\/p>\n
Andojo's statement that abuse of power is not a crime is
\nfallacious. In logic, fallacy is called Dicto Simpliciter. This
\nfallacy occurs when something that is generally true is also
\nconsidered true in its specific circumstances.<\/p>\n
Generally speaking, Andojo's opinion that abuse of power is
\nnot a crime is true, but abuse of power that benefits oneself or
\nothers and is detrimental to the state is definitely a crime
\nunder Act No. 3\/1971 on the Eradication of Corruption. Article 1
\n(1) point b. of the act clearly states that \"whoever, for the
\npurpose of benefiting oneself or others or corporations, abuses
\nhis or her authority or position, opportunity or facility that is
\nattached to the position, which is directly or indirectly
\ndetrimental to state's finance or economy\", is punishable for
\ncorruption.<\/p>\n
Furthermore, Article 1 (2) of the act stipulates that an
\nattempt or conspiracy to commit behavior stipulated in Article 1
\nof Act No. 3\/1971 on the definition of corruption, is also an
\noffense under the law on the eradication of corruption. One who
\nis found guilty of corruption (including attempt and conspiracy
\nto commit corruption) can be sentenced to up to 20 years
\nimprisonment and\/or fine for up to Rp 30 million (US$4,000).<\/p>\n
To defend their client, Soeharto's lawyers will, seemingly,
\nput forward an argument that he is innocent for the reason that
\nall the presidential decrees he issued were prepared by his
\nministers and were issued according to a valid process.
\nFurthermore, one Soeharto lawyer argued that if a presidential
\ndecree caused pecuniary loss to the state, the beneficiary of the
\ndecree, and not the issuer, should be held criminally liable.<\/p>\n
Although this argument seems to be reasonable, it should not
\nbe very difficult for a lawyer with clear legal reasoning to
\nrefute it. In the case of corruption where a president abuses his
\npower to benefit his family, the decree he has issued is merely
\nan instrument to facilitate his crime. Whether the decree is
\nvalid or not is the domain of the Constitution, and is,
\ntherefore, irrelevant to the corruption case. The fact that the
\ndecree has been prepared by cabinet ministers is not a good
\ndefense either, since the ministers and the president can be
\ncharged with conspiracy to commit corruption.<\/p>\n
It is a notorious fact that Soeharto is guilty of corruption
\nand abuse of power during his reign as the president of this
\ncountry. In legal terms, the evidence to prove that Soeharto is
\nguilty is res ipsa loquitur (a thing speaks for itself). It may
\nbe true that on some legal technicalities, Soeharto can escape
\nfrom liability in most cases. However, in the case of the Timor
\nnational car program, there is prima facie evidence that Soeharto
\nis guilty of abusing his power to benefit his beloved son, Hutomo
\n(Tommy) Mandala Putra.<\/p>\n
Under the prevailing law, prosecutors must prove the existence
\nof three elements of corruption to support their indictment
\nagainst Soeharto.<\/p>\n
* The existence of abuse of power.<\/p>\n
* The existence of a person(s) who received the benefit from
\nthe abuse of power.<\/p>\n
* The existence of pecuniary loss by the state.<\/p>\n
In the case of the national car program, these three elements
\nof corruption can easily be proven. Presidential Decree No.
\n42\/1996 on the National Car is prima facie evidence for
\nSoeharto's abuse of power, in a sense that a reasonable person
\nwould surely know that the decree benefited only his son, and the
\nstate would suffer pecuniary loss.<\/p>\n
In conclusion, if Attorney General Andi Ghalib focuses on
\nlegal issues and does not play politics, it will not be difficult
\nto prove that Soeharto is guilty of corruption, at least, in the
\ncase of the national car program.<\/p>\n
If Soeharto can be convicted, it will become a lesson for
\nother people who are presently in power not to even think of
\nabusing their power. After all, it is true that crime does not
\npay.<\/p>\n
The writer is an attorney based on Batam Island, Riau.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/can-former-president-be-held-criminally-liable-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }