A chicken thief by any other name

By Donna K. Woodward

JAKARTA (JP): Indonesians are becoming impatient waiting for the government of President B.J. Habibie to take action against former president Soeharto for his alleged corruption, abuse of official power and misuse and misappropriation of state resources. What are the obstacles to conducting a credible investigation as a prelude, one hopes, to prosecuting Soeharto and recovering illegally gained wealth? At least three impediments have been suggested: the government's failure to cite which laws have been broken; the legal doctrine of presumption of innocence; and a lack of evidence.

Usually an investigation begins when the authorities conclude that there is probable cause that a law has been broken. Until the attorney general focuses on which laws he thinks have been broken, how can he hope to snare the perpetrator? Have any violations of law occurred that Soeharto as president would have been responsible for? Kidnappings, rapes, torture by the military? Misuse or misappropriation of government resources? Abuse of presidential authority to promote the private interests of his children or friends? There may be no statute which says, "A president may not give special tax exemptions to his youngest child." But surely those deeds of Soeharto which have so outraged the people and harmed the country are in violation of some prescription or proscription of law. (Many of American's mafiosi were never prosecuted for murder, but for the easier-to-prove crime of income tax evasion.) Can the attorney general find no element of law under which to examine Soeharto? Where is his prosecutorial imagination?

Attorney General Ghalib and others have repeatedly referred to the presumption of innocence in relation to former president Soeharto, citing this principle as an excuse to avoid investigating the Soeharto wealth. This reliance is erroneous. This particular legal doctrine -- the presumption of innocence -- comes into play only after a suspect is formally indicted for a crime. It is intended to protect those formally indicted for a crime from being pre-judged unfairly before proof has been presented and weighed in accordance with the rules of evidence. The presumption of innocence was never meant to shield probable suspects from a lawfully conducted investigation. (Most legal systems have other rules to protect citizens from improper police investigations.) It is hard to believe that an attorney general of Indonesia would not understand this. One must wonder, then, why he insists on misusing this principle to excuse his failure to investigate Soeharto more aggressively. The attorney general need not and should not refrain from investigating Soeharto's accumulation of wealth based on the presumption of innocence; that presumption is simply not relevant in the investigation stage of a criminal prosecution.

The attorney general has also justified his lack of progress in investigating Soeharto by citing the lack of proof, using the analogy of a chicken thief. "If a chicken thief has no chicken in his possession, how can I prove he is a chicken thief?" Suppose my pembantu (maid) sees me slip a live chicken into my bag at the market, sees me bring it home, then under my instructions makes a nice chicken curry. After dinner Mr. Ghalib knocks on my door to say that people are accusing me of stealing a chicken. "Be my guest," I say. "Investigate. I don't have any live chickens in my house. You can check it out." Is there no proof to be had, simply because one piece of evidence is apparently gone? What about a witness -- my pembantu? What about circumstantial evidence -- I had a chicken in my curry and no receipts for any purchases of any chicken in the last month? Contrary to what the television shows suggest, circumstantial evidence does have probative value in courts of law. Surely an attorney general has more legal competence and perseverance than this, and will not be deterred from prosecuting a crime just because the most obvious piece of evidence is no longer available. This chicken-thief analogy is so demonstrably feeble that it is insulting to the community. If Mr. Ghalib's son were the one kidnapped and tortured, or his daughter the one raped, or if it had been his life's savings wiped out in a bank liquidated because of a Soeharto crony's corruption, or his parents the ones left hungry because they could not buy rice, would Mr. Ghalib be so woefully ineffectual in seeking proof to aid in the prosecution of the likely suspects, just because the evidence did not fall into place easily and perfectly?

Mr. Ghalib seems satisfied that because Soeharto has no cash box with hundreds of billions of rupiah, there is no proof of unlawful enrichment. Well where did the money for the parrot and the Harley Davidsons and the homes and the children's initial business capital and their sports cars and their homes and everything else, even their charitable donations -- where did his and his children's money come from? It could not all have been bankrolled by the presidential salary, this we know. And it did not come from a family inheritance; Soeharto always acknowledged his very simple background. Soeharto did not bring wealth to the presidency; he and his children accumulated it in his 32 years in office. How, Mr. Ghalib? Gifts? Will those who gave so generously please step forward and tell how much you gave and what you got in return, from Sigit and Tutut and Bambang and Tommy and their father?

Failing to consider the breadth of laws at his disposal; deterred by reliance on the wrong legal principle; reluctant to pursue alternate forms of evidence: Mr. Ghalib may be too much like those blinded by the emperor's mythical might. Mr. Ghalib seems to be waiting for a Soeharto confession. If Soeharto will not cooperate by unburdening his conscience, will no one else finally redeem the situation and tell Mr. Ghalib what presidential misdeeds you saw or knew of or participated in?