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.