A chicken thief by any other name

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?