Court's decision a warning to Megawati

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".