Can former president be held criminally liable?

By Stefanus Haryanto

BATAM, Riau (JP): It took long time, the public's demand that Soeharto be summoned to the Attorney General's Office for questioning became reality.

Flanked by his lawyers, Soeharto was questioned for four and half hours by senior prosecutors about alleged abuse of power during his reign as the president of Indonesia for almost 32 years.

Before a flock of journalists who had been waiting for his comments, Soeharto said that nobody was above the law but as a citizen he also had the right to attain legal protection from the state.

Whether Soeharto is criminally liable became a controversy after former deputy attorney general Adi Andojo openly stated that in his opinion, it was very difficult to make Soeharto criminally liable for his abuse of power during his presidency. Andojo, in an interview broadcast by ANteve on Dec. 11, argued that abuse of power was not a crime.

Because Andojo is well known as a former "clean" judge, his opinion is taken seriously by laymen, who may otherwise turn to "street justice" in order to make Soeharto liable for his actions in the past.

To avoid such a misunderstanding, it is important that Andojo's opinion is clarified.

Andojo's statement that abuse of power is not a crime is fallacious. In logic, fallacy is called Dicto Simpliciter. This fallacy occurs when something that is generally true is also considered true in its specific circumstances.

Generally speaking, Andojo's opinion that abuse of power is not a crime is true, but abuse of power that benefits oneself or others and is detrimental to the state is definitely a crime under Act No. 3/1971 on the Eradication of Corruption. Article 1 (1) point b. of the act clearly states that "whoever, for the purpose of benefiting oneself or others or corporations, abuses his or her authority or position, opportunity or facility that is attached to the position, which is directly or indirectly detrimental to state's finance or economy", is punishable for corruption.

Furthermore, Article 1 (2) of the act stipulates that an attempt or conspiracy to commit behavior stipulated in Article 1 of Act No. 3/1971 on the definition of corruption, is also an offense under the law on the eradication of corruption. One who is found guilty of corruption (including attempt and conspiracy to commit corruption) can be sentenced to up to 20 years imprisonment and/or fine for up to Rp 30 million (US$4,000).

To defend their client, Soeharto's lawyers will, seemingly, put forward an argument that he is innocent for the reason that all the presidential decrees he issued were prepared by his ministers and were issued according to a valid process. Furthermore, one Soeharto lawyer argued that if a presidential decree caused pecuniary loss to the state, the beneficiary of the decree, and not the issuer, should be held criminally liable.

Although this argument seems to be reasonable, it should not be very difficult for a lawyer with clear legal reasoning to refute it. In the case of corruption where a president abuses his power to benefit his family, the decree he has issued is merely an instrument to facilitate his crime. Whether the decree is valid or not is the domain of the Constitution, and is, therefore, irrelevant to the corruption case. The fact that the decree has been prepared by cabinet ministers is not a good defense either, since the ministers and the president can be charged with conspiracy to commit corruption.

It is a notorious fact that Soeharto is guilty of corruption and abuse of power during his reign as the president of this country. In legal terms, the evidence to prove that Soeharto is guilty is res ipsa loquitur (a thing speaks for itself). It may be true that on some legal technicalities, Soeharto can escape from liability in most cases. However, in the case of the Timor national car program, there is prima facie evidence that Soeharto is guilty of abusing his power to benefit his beloved son, Hutomo (Tommy) Mandala Putra.

Under the prevailing law, prosecutors must prove the existence of three elements of corruption to support their indictment against Soeharto.

* The existence of abuse of power.

* The existence of a person(s) who received the benefit from the abuse of power.

* The existence of pecuniary loss by the state.

In the case of the national car program, these three elements of corruption can easily be proven. Presidential Decree No. 42/1996 on the National Car is prima facie evidence for Soeharto's abuse of power, in a sense that a reasonable person would surely know that the decree benefited only his son, and the state would suffer pecuniary loss.

In conclusion, if Attorney General Andi Ghalib focuses on legal issues and does not play politics, it will not be difficult to prove that Soeharto is guilty of corruption, at least, in the case of the national car program.

If Soeharto can be convicted, it will become a lesson for other people who are presently in power not to even think of abusing their power. After all, it is true that crime does not pay.

The writer is an attorney based on Batam Island, Riau.