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.