Court's decision a warning to Megawati

The recent Supreme Court ruling on Golkar was a bitter pill to swallow for many of the party's critics. Professor of law and former member of the National Commission on Human Rights Charles Himawan discusses the issue.

JAKARTA (JP): On Tuesday the Supreme Court handed down its ruling on a petition seeking the disbanding of the nation's second strongest political party, Golkar, the political machine through which former president Soeharto ruled Indonesia for 32 years (1966-1998).

Many feel that the current multidimensional crisis is mainly due to the continuous participation by the former ruling party in national politics. Besides, recent theory on transitional justice in the field of human rights also posits that former political parties should be prohibited from taking part again in the political process under a new reformed government.

Putting aside for the moment all of these premises, the Supreme Court's decision in favor of Golkar reflects two very important aspects that should be heeded by the new administration of Megawati Soekarnoputri. One aspect is the status of the judges; and the second is the grounds on which they ruled the way they did.

With regard to the first aspect, it is worthy of note that out of a panel of five judges, there were three newly appointed non-career judges. They were recruited from academia and the professions.

The strategy behind this new system of recruiting judges is to reduce corruption, which allegedly has infected most of career judges. The strategy was first promoted by the National Commission on Human Rights after discussing the problem with United Nations Secretary-General, Kofi Annan, when he visited Indonesia on Feb. 16, 2000.

The UN Secretary-General was, and is still, concerned about whether Indonesia can produce a reliable judiciary.

The future human rights court is also to be staffed by non-career judges. The panel of judges that heard the Golkar case is a hopeful indication that the judiciary can be reformed. This is the first lesson that the new government should learn: a reliable judiciary is of absolute importance.

With regard to the second aspect of the Golkar case, the reasoning adduced by the judges should serve as the second lesson for the new Megawati administration. The message of the Supreme Court was clear: If you want to bring a case before a court of law, be sure that you substantiate your case with sufficient evidence that is admissible in accordance with the rules and procedures of the court. Legal pundits have always warned us that building up a case before a court of law is an entirely a different ball game to simple litigation or the prosecution of an individual. The crucial question is, how to build such a case? Should it be limited to the written rules of procedure? Or should we go beyond them?

To date, the Supreme Court seems to have depended heavily on the written rules, though there are some indications that it applied jurisprudential principles in the Golkar case that permit the court to go beyond the written rules. This was shown by the Supreme Court when it held that it had competence to hear the case, even though there are no detailed rules yet on how to supervise the activities of political parties. But the Supreme Court concluded that it had the authority to make its own rules. Thumbs up to the Supreme Court!

On the other hand, the Supreme Court shied away from invoking the new theory of transitional justice as explained above. The outcome of the case might have been different had this theory come into play.

The refusal of the Supreme Court to disband Golkar clearly reflects, one, the failure on the part of petitioners to build a case that could withstand attacks from both the court and the respondents; and, two, the failure of the Supreme Court to go beyond the written rules and create its own laws.

This was evidenced by the fact that the petitioners' arguments were rejected on two fundamental grounds: that the petitioners had failed to submit authentic documents in support of their petitions and, secondly, that they had relied on hearsay evidence in alleging that certain donations had been made to Golkar in violation of the law.

Given the stance of the Supreme Court, it is extremely important for the new government of Megawati to solidly prepare the economic, corruption and human rights cases that will be pursued in the courts in the future if it wishes to secure guilty verdicts. The prosecutors or plaintiffs should submit the evidence in such a way that conforms with the written rules of evidence.

Perhaps it would be wise at this stage of our legal development to heed the warning of the great American judge, Benjamin N. Cardozo (1870-1936), who said that "it is for ordinary minds, and not for psychoanalysts, that ... rules of evidence are framed".