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.