Prosecuting Supreme Court justices<\/p>\n
Ridarson Galingging, Jakarta<\/p>\n
A \"war\" between the Corruption Eradication Commission (KPK)
\nand the Supreme Court (MA) began when the KPK searched the MA
\nrecently and took away some documents.<\/p>\n
The search led to a KPK summons for Chief Justice Bagir Manan
\nto appear as a witness in an attempted bribery case involving
\nProbosutedjo, the half-brother of former president Soeharto.
\nProbosutedjo was found guilty of siphoning off a large portion of
\nthe reforestation funds for himself, and now his case is under
\nappeal with the Supreme Court. Bagir Manan has not responded to
\nthe KPK's first summons.<\/p>\n
Can the KPK win this \"war\" by investigating the Supreme Court
\nand possibly convicting the justices involved of a crime? What
\nlegal obstacles will the KPK face in its effort to clean up
\nIndonesia's highest judicial body?<\/p>\n
Public opinion seems to have cornered the MA and sided with
\nthe KPK. The speaker of the House of Representatives and many
\nlegal scholars have pressed Bagir Manan to comply with the
\nsummons.<\/p>\n
At first the MA cooperated with the KPK by allowing the
\ncorruption team to conduct its search of the justice's office
\nhandling Probosutedjo's case. But then the MA began to fight back
\nagainst the KPK, citing several legal irregularities during the
\nsearch.<\/p>\n
Legally speaking, the odds are weighed against the KPK winning
\nthis war. The KPK has taken on the judicial body that has the
\nfinal say in every legal dispute. Questions about the legality of
\nthe KPK's actions at the MA will likely be decided by the MA
\nitself. Despite these odds, it is worth trying to use this
\nmomentum to clean up Indonesia's corrupt judiciary, all the way
\nup to the highest level.<\/p>\n
The first legal obstacle faced by the KPK is on procedural
\ngrounds. The search was sloppy in that the KPK officials used
\nmass media pressure to get Bagir Manan's personal approval to
\nconduct the search.<\/p>\n
Article 33 (1) of Criminal Code No. 8\/1981 (KUHAP) states that
\na court order is necessary to conduct a search, and it is very
\nlikely that the MA will challenge the illegal search at the
\npretrial hearing (habeas corpus). It would be remarkable if the
\nKPK won in this pretrial hearing because under the prevailing
\nlegal culture in Indonesia, a lower district court would strongly
\nfavor the arguments of the MA over challenges by the KPK.<\/p>\n
The requirement to get a court order before a search is not
\nonly found in Indonesia but is a common rule in most democratic
\ncountries. In the U.S., for example, evidence seized in violation
\nof the Fourth Amendment to the Constitution cannot be used as
\nevidence against defendants in a criminal prosecution. Thus, if a
\nsearch is illegal to begin with, the products of that search, no
\nmatter how incriminating, are inadmissible as evidence.<\/p>\n
This is a very important principle to prevent the powers of
\nthe state from being abused. Judgments that exclude incriminating
\nevidence teach an important lesson to the police and
\ninvestigators that failing to follow proper procedures carries
\ndisastrous and embarrassing consequences.<\/p>\n
Article 170 (1) of KUHAP, which exempts certain individuals
\nfrom testifying, presents a second hurdle in the KPK
\ninvestigation. Certain professions, such as priests, judges and
\nattorneys and journalists, are exempt under this article from
\nbeing a witness in court if their testimony concerns information
\nentrusted to them. Chief Justice Bagir Manan might, in theory,
\nexempt himself from being a witness in a case he himself is
\nhandling. This is one way of interpreting Bagir Manan's request
\nto the KPK that questions be submitted in writing before he will
\ndecide to comply with the next KPK summons.<\/p>\n
If an actual arrest becomes necessary, the KPK will face less
\nof a challenge. Article 17 of Law No. 14\/1985 on the Supreme
\nCourt states that presidential approval is needed to arrest
\njustices involved in a criminal case. Officials from the KPK have
\nmet with the President.<\/p>\n
A last hurdle for the KPK concerns the copy the investigators
\nmade of the justice's draft opinion (adviesblaad) in
\nProbosutedjo's review case. The draft opinion can only be read
\nand used by the justices handling the case. It was an error for
\nthe KPK to confiscate the adviesblaad and it is unlikely the
\ncourts will allow it to be used as evidence to convict the
\njustices.<\/p>\n
Judges have legal immunity from prosecution for the content of
\ntheir opinions or decision. Any disputes regarding a judge's
\nopinion or statement must be channeled through the appeal or
\nreview procedures available within the legal system, not by
\nattacking the judge criminally or through civil suits.<\/p>\n
Most legal systems around the world defend this principle of
\njudicial immunity, which is an important protection of judicial
\nindependence. Judges are often called upon to decide
\ncontroversial, difficult, and emotion-laden cases. Judicial
\nimmunity shields them from the concern that disgruntled litigants
\nwill hound them with lawsuits charging improper judicial
\nbehavior.<\/p>\n
In the U.S. for example, the doctrine of judicial immunity is
\ndeeply entrenched in its legal system. Judges enjoy a substantial
\ndegree of immunity from civil liability. On the other hand, with
\none minor exception for malfeasance or misfeasance in office,
\njudges possess no immunity for their criminal behavior. Whatever
\nthreat criminal liability might pose to judicial independence, it
\nis not strong enough to override the importance of enforcing the
\ncriminal law, and it has been consistently recognized that judges
\nshould not be able to hide behind their office as shelter for
\ncriminal behavior that harms society.<\/p>\n
Despite these legal hurdles, the KPK has begun a very
\nimportant step in combating the rampant judicial corruption at
\nthe country's highest level. However, the KPK's legal knowledge
\nshould be deepened to avoid mistakes in the future that could
\ndamage the KPK's reputation. The KPK's investigators must have
\nnot only high spirit in fighting corruption, but must also be
\nequipped with high legal knowledge and skills.<\/p>\n
To win this war on corruption, the KPK will face sophisticated
\nlegal attacks from the judges, prosecutors, and lawyers being
\ninvestigated. Such figures have wide and strong networks as well
\nas rich financial resources to pursue their defensive tactics.<\/p>\n
The writer (r-galingging2004@law.northwestern.edu) is a
\nlecturer in law at Yarsi University in Jakarta and a doctoral
\ncandidate at Northwestern University School of Law in Chicago.<\/p>",
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