Disregard politics in Akbar Tandjung affair

Disregard politics in Akbar Tandjung affair

All eyes, albeit weary ones, will be on the Supreme Court,
which is scheduled on Thursday (Feb. 12) to announce its verdict
on an appeal filed by House of Representatives Speaker and Golkar
Party leader Akbar Tanjung.

Akbar was sentenced to three years' imprisonment by the
Central Jakarta District Court in September 2002 for embezzling
Rp 40 billion in state funds. The Jakarta High Court upheld
Akbar's conviction in January last year, but he has remained free,
retained his job as House speaker and has even become a Golkar
presidential candidate.

The Jakarta Post contributor T. Sima Gunawan talked to
Harkristuti Harkrisnowo, a criminal law expert from the
University of Indonesia and member of the National Law Commission.
An excerpt of the interview follows:

Question: It's been more than a year since Akbar appealed but the
Supreme Court has yet to announce its verdict. It even decided to
delay the announcement of its verdict twice. How do you see the
case?
Answer: It seems that there is disagreement among the (five)
justices handling the case. The question is, could Akbar be held
responsible under the criminal law? The case occurred (in 1999)
when he was state secretary/minister in the cabinet of former
president B.J. Habibie. He claimed that he was only following
Habibie's orders and that he did not know where the money went.

But as state secretary/minister, he should have known. If
Akbar said that he did not know, it was therefore necessary to
find out where the money really went. Codefendant Winfried
Simatupang said he kept all of the money in a cupboard; even a
child would know (that that was a big lie).

Maybe Akbar did not enrich himself, but others. And then there
is the mechanism for monitoring the distribution of the money.
Was it implemented properly? Akbar had an obligation to ensure
that it was properly monitored.

What will be the implications of the verdict?

It will surely have great implications. This is one of a few
cases implicating a high-level policy maker. In the case of
Sjahril Sabirin, the public got the impression that a high-level
policy maker could not be punished. (Sjahril, a former Bank
Indonesia director, was found guilty by a lower court of
corruption, but was later exonerated by the Supreme Court on all
charges). But in some other cases, as with Rahardi Ramelan
(former chief of the State Logistics Agency), a policy maker
could be punished. So, people are wandering, to what extent can a
policy maker be penalized?

Does this mean that people are restless because of legal
uncertainty?

Exactly. People suspect that there is a political aspect in
this case because Akbar is a presidential candidate. The Supreme
Court should not view him as a presidential candidate but
maintain the principle of equality before the law. Therefore, the
Supreme Court should study the case very carefully.

Even if Akbar were freed, there ought to be clear reasoning
behind the decision. But then, if he is freed, who should be held
responsible? If the Supreme Court punished Akbar, it would become
a great lesson for the nation. It would see that a high-ranking
official at a ministerial level could also be convicted and the
public would trust the court as an institution of justice.

However, if Akbar were not punished, people who are not
already skeptical at judicial institutions here would become more
skeptical at the way the law was being implemented.

The Supreme Court should see the case from a legal and
judicial point of view.

If the Supreme Court sets him free, what could prosecutors do
to challenge the decision?

Article 263 of the Criminal Code Procedures (KUHAP) states
that a defendant who is not satisfied with a Supreme Court
verdict may ask for judicial review if he or she has fresh
evidence. If the Supreme Court sentences Akbar, the defendant
could ask the court to review the case. But this does not apply
to prosecutors. If the Supreme Court exonerates Akbar from all
charges, the decision is final.

In the past, there was a case when prosecutors asked the
Supreme Court to review its decision on labor activist Mochtar
Pakpahan. The court granted the request and sentenced the
defendant. But I think it was wrong. The law is designed to
protect the interests of defendants.

Disagreement among the Supreme Court justices who are handling
Akbar's case might result in voting. Each may have a different
opinion, which shows that justice is not absolute: Your comment?

Different opinions (among justices) are not unusual. They may
vote or hold a plenary session to discuss the case. If they
decide to have a plenary session, that means that the
announcement of the verdict will be delayed again.

It is impossible to have absolute justice. Even in the United
States, there is what is called dissenting and also concurring
opinion, in which a justice may agree with the decision but
disagree on legal considerations.

The justices who handle Akbar's case should listen to their
heart and base the decision on legal reasoning and argument. It
should not be based on political considerations.

As with other judicial institutions in the country, the
Supreme Court has a poor public image. How can it improve its
image?

It should work hard. It has started to put in an effort to
make things better. For example, with the help of the European
Union, it has made a blueprint for this. It is a very good
blueprint, but the problem is how to implement it. This is a big
challenge for Chief Justice Bagir Manan. Second, there is a
question about the Supreme Court justices themselves. Do they all
deserve their positions? Being clever is not enough; they must be
clean too.