Can former president be held criminally liable?

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.