Bruneigate: What about evidence?

Bruneigate: What about evidence?

By Donna K. Woodward

MEDAN, North Sumatra (JP): The Attorney General's Office has
concluded its investigation of Bruneigate, apparently accepting
at face value a letter from the Embassy of Brunei stating that
the US$2 million was a personal gift to President Abdurrahman
Wahid for humanitarian assistance programs and was not given to
the President in his capacity as head of government.

Therefore the President had no obligation to account for the
funds, therefore he has committed no offense. There are many
corruption and abuse-of-power cases that cannot be prosecuted
because of lack of evidence. Bruneigate is not one of them.

This is an example of an investigation aborted because of an
extraordinarily passive approach to evaluating evidence. This is
not new in Indonesia's legal environment; it is common for courts
to conclude that some well-connected defendant has denied a
charge, therefore he is not guilty.

What is dismaying is that despite the political urgency
surrounding the current corruption cases and despite the Attorney
General's promise that professionalism would characterize his
office, prosecutors are apparently still looking at evidence
superficially, without using independent critical judgment and
common sense.

"But for his status as president, would Abdurrahman Wahid have
been given this money?" How did investigators determine whether
the astounding $2 million gift was for Abdurrahman Wahid the
person or for Abdurrahhman the office-holder?

In a system that honors the rule of law above rulers,
impartial fact-finders use various techniques to evaluate
witnesses' credibility. They scrutinize evidence, including
statements of VIP witnesses, for signs of inconsistency. In
determining they consider those common sense facts that warrant
"judicial notice" in a trial, such as whether the normal elements
of friendship were observed. If common sense had been operative
when prosecutors investigated Bruneigate, here are examples of
what they would have considered.

Just days into his presidency Abdurrahman Wahid made his first
major off-the-cuff destablilzing gaffe, proclaiming that Aceh was
entitled to a referendum. The President was forced to retract
his referendum offer, but his announcement was like an injection
of adrenaline reinvigorating the Acehnese independence movement.
Gus Dur (Abdurrahman) needed help.

It came in the form of US$2 million for humanitarian
assistance for Aceh from the Sultan of Brunei. These facts are
not in dispute. What is disputed is the nature of the donation.
The President has insisted that it was a personal gift to him; in
other words, a personal relationship was the basis of the gift.
Not surprisingly, the Sultan formally corroborated the
President's characterization of the gift.

What are the odds that the Sultan would contradict a fellow
head of state of the Association of Southeast Asian Nations and
Islamic cleric? Why didn't the government of Brunei issue this
clarification immediately after the donation became an issue?
Why only now, as the President slides deeper into the quagmire of
impeachment?

From the first leak about this money until now with the Brunei
Embassy's explanatory letter, the money has consistently been
described as intended for humanitarian assistance in Aceh. This
is a public, not a personal purpose; personal gifts don't usually
come earmarked for public use.

To determine the basis for the donation prosecutors might also
have looked at the history between the giver and the recipient.
What was the parties' previous personal relationship? Did the
Sultan give Abdurrahman Wahid large gifts for humanitarian
programs before he became president?

Did they pay each other friendly visits, attend each other's
family ceremonies, exchange letters as friends do? These signs
would point to a bona fide personal friendship, one that could
lend credence to the President's contention and the Sultan's
belated corroboration that the donation was personal.

The prosecutors might also have asked whether the Sultan has a
history of giving similar personal gifts to other heads of state.
Did the Attorney General's staff ever even question the Sultan
about these things? Did they ask the Sultan to give a sworn
statement about his gift, as would usually happen in the case of
prime witnesses? If this donation was based not on a personal
relationship but on Abdurrahman's position, should it have been
transacted privately? Where were transparency and
accountability? Did the prosecutors ask these and other
questions when they "investigated" Bruneigate?

The problem with this case is not its impact on the
impeachment. As several legislators noted on May 30, because
impeachment requires a political determination and not a
judgment on criminal culpability, different standards of law
apply and they are free to disregard the Attorney General's
letter of exoneration.

The problem is that all prosecutions of corruption and human
rights cases now seem infected with this laissez-faire attitude
toward testimonial evidence from powerful suspects and witnesses
of doubtful impartiality. In such a climate all prosecutions are
imperiled. Public trust in the Attorney General's independence
is imperiled. Corrupt prosecutors and judges are bad enough.

But if even honest prosecutors don the demeanor of vassals
when they go to work, this enfeebles the justice system more
insidiously than corruption will.

The official complaisance of the Attorney General's Office
needs to give way to a more audacious use of evidentiary rules
and techniques.

The writer, an attorney and former American diplomat at the
U.S. Consulate General in Medan, is a management consultant.