Whose justice is it, anyway?<\/p>\n
By Donna K Woodward<\/p>\n
MEDAN (JP): Indonesia is in a state of siege. From Sabang to
\nMerauke Indonesia is besieged by bombings, burnings, chaos and
\ncorruption. Lawlessness reigns. The government is paralyzed by
\nconfusion, timidity and a new national paranoia over imagined
\nattacks on its sovereignty.<\/p>\n
In Ambon the military commander issues a shoot-on-sight order
\nto be used against inhabitants, while in Atambua a swarm of
\npolice and military officers stand by and watch passively while a
\nmilitia leader arrogantly disrupts a Vice Presidential photo-op,
\nprovokes his cohorts to reclaim their illegal weapons, then
\nconfidently swaggers away.<\/p>\n
Is there no sense of proportion at the center of Indonesia's
\nlaw enforcement command? Coordinating Minister for Political
\nAffairs and Security Susilo Bambang Yudhoyono said that the
\nconfiscation of militia weapons must be conducted in an
\n\"appropriate\" manner.<\/p>\n
Are appropriateness, patience and politeness the new rules of
\nengagement for law enforcement officers? What about the sense of
\nurgency? Who has decided that militia murderers must be treated
\nwith kid gloves while civilians caught in a maelstrom beyond
\ntheir making, merit summary justice? Whose justice is it, anyway?<\/p>\n
Indonesia has an obsolete, jury-rigged legal system.
\nSubstantive laws are deficient and procedural rules severely
\nrestrict the presentation of reasonable proof. The court system
\nas a whole is consumed by corruption.<\/p>\n
The legal system simply does not serve the cause of justice.
\nShort of feeding people, there is no greater need in Indonesia
\ntoday than the need to establish the supremacy of law and restore
\nfaith in justice.<\/p>\n
Notwithstanding this need, there are times when compelling
\ncircumstances dictate that states, even democratic states,
\nsuspend some of their usual rules of law for the sake of national
\nsurvival.<\/p>\n
When lawlessness is the kind associated with riots and street
\nviolence or war, governments impose martial law; indeed Indonesia
\nhas considered this. Though community violence is a growing
\nproblem, for Indonesia the more serious threat is the lawlessness
\nwhich arises from the government's impotence in prosecuting
\ncorruption and human rights violations.<\/p>\n
Exceptional measures of law enforcement are needed; not the
\nusual martial law measures, but some other extraordinary measures
\nto restore the community's faith in their justice system.<\/p>\n
Law professor Charles Himawan alluded to this in his Oct. 4
\narticle, \"The dark tunnel of justice.\" Others have also weighed
\nthe idea of establishing special tribunals for certain cases, but
\nthe idea seems to have died. Should it be revived?<\/p>\n
There is precedent for special juridical measures. In 15th
\ncentury England the common law court system was a collection of
\ninflexible technical rules that made it difficult for aggrieved
\nparties to obtain justice. (Sounds familiar?) For relief, people
\nturned to the king.<\/p>\n
Growing out of traditional royal prerogatives, an alternate
\ncourt system was instituted to shape equitable remedies that were
\nunavailable under common law court rules. In the special courts
\nthe usual rules of law were not slavishly followed. These courts
\nof equity facilitated justice on the one hand, but also
\ncompromised the common-law concepts of precedent and the rule of
\nlaw. (Eventually courts of equity, the most notorious of which
\nwas the Star Chamber, were either abolished or integrated into
\nthe common law court system.)<\/p>\n
England's 15th century legal system and Indonesia's current
\nlegal system, and their respective problems, may be more
\ndissimilar than alike. But England's experiment may offer
\nIndonesia a model: a special court for those cases in which the
\nexisting system fails to deliver justice.<\/p>\n
To loosen the procedural controls on the judiciary or modify
\nthe rights of the accused are steps of last resort, but might be
\nthe lesser of two evils -- the greater being the impossibility of
\nprosecuting high profile defendants.<\/p>\n
The proposition of abridging rights is one that some civil
\nrights advocates might categorically reject. But all legal
\nsystems are, after all, attempts at balancing competing rights:
\nof the community against the individual, of one person against
\nanother.<\/p>\n
Rights are not absolute and legal systems are imperfect.
\nResponsible authorities differ about the protections the accused
\nare entitled to. All criminal justice systems should meet
\nrecognized norms of fundamental fairness, but between legal
\nsystems variations are valid.<\/p>\n
The idea of a special court with more broadly defined
\ndiscretion to decide what evidence may be admitted and what may
\nnot, which defenses may be invoked, and when evidence is
\nsufficient to support a guilty verdict, might be worth
\nconsidering, at least as a transitional measure until Indonesia's
\ncriminal justice system is repaired.<\/p>\n
Existing laws of evidence force prosecutors to ignore the most
\nglaring probative facts because they cannot always be proved by
\ndirect evidence. Indonesia's jurisprudence seems not to allow for
\nevidentiary 'assists' like rebuttable presumptions and
\ncircumstantial evidence.<\/p>\n
Soeharto escaped prosecution because the rules allowed his
\nattorneys to delay and obstruct proceedings on legitimate
\nprocedural grounds until age and poor health made prosecution
\nimpossible.<\/p>\n
Must the country wait until the current generation of judges
\nretires, and until there is a new generation of jurists to draft
\nlaws and a new legislature to enact the laws, before they see any
\ndegree of justice done with respect to the corruption and human
\nrights violations of the Soeharto era?<\/p>\n
Indonesia cannot afford that kind of patience. Populations
\nwill tolerate periods of economic hardship and social
\ninstability, if they have hope that fundamental justice will
\nprevail within a reasonable time.<\/p>\n
The prompt formation of a special court with its own
\nprocedural and evidentiary rules, and lawyers of impeccable
\nintegrity to try the major crimes that shadow the country, might
\nrestore that hope.<\/p>\n
The writer, an attorney and former American diplomat at the
\nU.S. Consulate General in Medan, is president director of PT Far
\nHorizons management consultancy.<\/p>",
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