Abuse of power 'not a crime'
Abuse of power 'not a crime'
By Adi Andojo Soetjipto
JAKARTA (JP): The Attorney General's Office, under Indonesia's
current legal system, will find it difficult to prove that former
president Soeharto committed corruption or abused his power
during his presidency.
The abuse of power, an sich, is not a criminal act. It is an
administrative measure that can only be corrected by an
administrative procedure.
For example, if an ordinary administrative official abuses his
power, he can be removed from his job by his supervisor. If the
abuse of power is committed by a president, the House of
Representatives can reprimand him or remove him from office.
This fact is important to clarify Stefanus Haryanto's article
in the Dec. 21, 1998 edition of The Jakarta Post which claims
that my statements, broadcast by ANteve on Dec. 11, needed
clarification.
The public believes that Soeharto abused his power during his
presidency, and that during his 32-year reign he, his family and
his cronies amassed extraordinary amounts of wealth in the form
of money, land and other assets.
However, does Soeharto's abuse of power qualify as a criminal
act of corruption? This is difficult, although not impossible, to
prove.
To say that Soeharto committed corruption, his alleged abuse
of power must fall under the definition of Law No. 3/1971 on the
Eradication of Corruption, which states that to be defined as
corruption an action must have "the objective to benefit oneself,
another party or a corporation, and is directly or indirectly
detrimental to the state's finances or economy."
According to paragraph one of article 184 of Law No. 8/1981 on
Criminal Acts, there are five factors that can be used as legal
proofs -- testimony by a witness, testimony by an expert,
correspondence, indications and a statement by the defendant.
Indications are in abundance, but article 183 of Law No.
8/1981 says that "a judge shall not pass a verdict unless he,
with at least two legal proofs, is convinced that a criminal act
took place and that the defendant is guilty of committing that
act."
Related procedures are explained in paragraph two of article 6
of Law No. 14/1970 on the Basic Stipulations of Judicial Power.
Thus, in order to judge former president Soeharto as having
committed corruption, at least two legal proofs must be obtained
and the judge must be convinced that a criminal act was committed
by Soeharto. The existence of indications will not suffice to
sentence him.
Presidential Decree No. 42/1996 on the Manufacture of the
National Car, for example, benefited PT Timor Putra Nasional, a
company owned by one of Soeharto's sons. Based on this decree,
the government granted tax and customs facilities for the
importation of various goods, including Timor cars from Kia
Motors in South Korea.
Supposing that Soeharto really abused his power by issuing the
decree, it cannot be shown with certainty that this act was one
of corruption if it cannot be proven that Soeharto's decree
benefited himself, another party or a corporation. PT Timor Putra
Nasional, favored by Soeharto's alleged abuse of power, did not
benefit through illegal actions, but, instead, benefited legally
by virtue of the presidential decree.
That is why it is difficult to bring former president Soeharto
to court under the Eradication of Corruption law, and why an
investigation based on the criminal code will take a very long
time.
Therefore, a political decision should be issued. The People's
Consultative Assembly, for instance, can issue a decree for the
confiscation of the wealth of former president Soeharto and the
use of this wealth to meet the needs of the entire population of
Indonesia.
A decree of this nature will certainly depend on the outcome
of the general election scheduled for June 7, 1999. It is hoped
that the election will take place in an honest and fair manner,
and, moreover, that prosecutors will be given leeway to bring
former president Soeharto to court.
The writer is a former deputy chief justice of the Supreme
Court.