Esprit de corps and the sacrificing of the Indonesian judiciary
Esprit de corps and the sacrificing of the Indonesian judiciary
Winahyo Soekanto
Lawyer
Consumer Care Foundation
Jakarta
winahyo@yahoo.com
Woe betide whistle-blowers in Indonesia, especially those from
among law enforcers. Rather than being hailed as heroes for
publicly unveiling violations, they are usually fed to the sharks
by those parties directly threatened by the revelations.
Take Wawan Iriawan, for instance, a lawyer who revealed an
extortion attempt by a judge: He has recently been banned from
handling cases falling under the jurisdiction of the South
Jakarta District Court by order of the head of the Jakarta High
Court, M. Ridwan Nasution. Wawan has pleaded against the ban,
citing the five cases he has been working on at the district
court.
Meanwhile, the chairman of the Advocates Association of Human
Rights, Dorma Sinaga, has also demanded that the Indonesian
Ethics Council of the Advocates Profession Community try Wawan
for allegedly violating the profession's code of ethics by
holding meetings with the judge and the opposing counsel in the
judge's chambers.
Wawan looks set to face the same fate as that of Endin
Wahyudin. Last year, the courts gave the Supreme Court middleman
a prison sentence for defaming two of the Court's justices, as
well as a retired justice. Wahyudin had filed a report with a
now-defunct anticorruption investigation team, accusing the three
of bribery. The trial of the three justices has been halted.
Whistle-blowers and their revelations here do not usually
inspire a will in those responsible to pursue public
accountability by clarifying or launching an investigation into
the matter. Rather, they always seem to push the panic button of
people who believe in esprit de corps more than they believe in
the supremacy of the truth. When this happens among law
enforcers, justice is the first to suffer and good governance
becomes mere lip service.
Here are several examples of the esprit de corps taking
precedence over truth and law enforcement:
* The case of Attorney General M.A. Rachman
Prosecutor Kito Irkhamnie filed a report about the alleged
hidden wealth of Attorney General M.A. Rachman with the Public
Servants' Wealth Audit Commission (KPKPN). Kito was later
arrested and is now in detention at Cipinang Prison in East
Jakarta.
It was reported last week that the South Jakarta Prosecutor's
Office extended Kito's detention for another 30 days over his
alleged involvement in a fraud case. Chief of the prosecutor's
office Purwanto said the case files would be submitted soon to
the South Jakarta District Court.
This is not in defense of Kito, but the impression that has
emerged from the case is that as soon as it became clear that
Rachman would have to provide public accountability, the
prosecutor corps stepped in and repainted the case as one that
might threaten their credibility. Hence, their total support for
the attorney general -- despite the fact that it was the personal
wealth of Rachman that was under scrutiny, rather than the
performance of the state prosecutors as a whole.
To allow the case to drag on indefinitely in this manner would
only harm justice and obstruct law enforcement.
* The case of lawyer Elza Syarief
The lawyer representing Hutomo "Tommy" Mandalaputra, Elza
Syarief, was accused of bribing Rahmat Hidayat and Tatang
Somantri with Rp 2 million each to lie at Tommy's murder trial.
When she was about to be questioned, a group of senior lawyers,
including Adnan Buyung Nasution, stepped in demanding that the
police take their hands off "matters concerning the profession of
advocates."
Buyung declared that lawyers suspected of violations in
handling a case should first be examined by the Ethics Council of
the Advocates Profession Community. Elza was later tried and
sentenced for ethical violations of her profession. A lawyer at
the Jakarta Legal Aid (LBH), however, declared that Elza should
have been tried for a criminal violation instead.
If this is true, then this is another case of law enforcement
being sacrificed for the sake of the esprit de corps of the legal
profession.
* The case of the Manulife judges
The Supreme Court recently found the three judges, who
declared Canadian insurance company Manulife bankrupt, innocent
of all allegations made against them. The court also called on
President Megawati Soekarnoputri to lift the suspension of the
three judges in consideration of the findings of the disciplinary
committee that examined their cases.
A disappointed Minister of Justice and Human Rights Yusril
Ihza Mahendra declared that even though the three judges had been
suspended while their case was being probed, they must now be
allowed to resume their posts because the Supreme Court's
disciplinary committee found no strong grounds for firing them.
The three judges -- Tjahyono, C.H. Kristi Purnamiwulan and
Hasan Basri -- were suspended last year for allegedly accepting
bribes to declare Manulife bankrupt at the behest of the now-
defunct PT Dharmala Sakti Sejahtera. The Manulife case almost
disrupted bilateral relations between Indonesia and Canada, as
the company was considered healthy and solvent.
As the case developed, however, the Indonesian Judges
Association (IKAHI) stepped in to defend its three members,
accusing the KPKPN of prematurely jumping to the conclusion that
the three had amassed their fortunes through bribery. One of the
judges later hired eight colleagues to defend her in the case.
The victims in this case were justice and the whistle-blower.
Esprit de corps only does harm when it compromises the legal
process. Indeed, violators of the legal process should actually
have been given even harsher punishment, because not only had
they violated the law, they had also undermined the justice
system.
The esprit the corps in this case also cultivated this
"sectoral egotism" shared by law enforcers -- police,
prosecutors, lawyers and judges -- hampering teamwork and further
undermining any campaigns to provide the public with access to
justice.
Several years ago in 1988, IKAHI, the Association of
Prosecutors and the Indonesian Bar Association (IKADIN), issued a
joint statement that they would always refer to a common
perception of justice. Together, they declared that anyone taking
up the legal profession must be courageous and honest, and uphold
the conscience of the people in their fight for universal
justice.
Has the Indonesian economic and social crisis eroded this
resolution for a strong justice system? As legal conduct is
basically human behavior, it would therefore be understandable
that changes in human behavior due to the social crisis would
also affect the legal conduct of a community, including its law
enforcement professionals.
The Indonesian judiciary once came out with this brilliant
concept of an integrated justice system, translated into the so-
called Forum Mahkejapol (a forum consisting of the Supreme Court,
the prosecutor's association and the police), whose aim was to
provide the public with optimal access to justice.
This concept cannot be further from the truth today -- the
public is finding even greater difficulties in accessing a
speedy, efficient, simple and inexpensive judiciary as mandated
by law.
What we now have instead is a fragmented justice system --
gagged and bound by the egotism of law enforcers willing to
sacrifice the supremacy of the law for their own gains. Under
such conditions, the judiciary can no longer serve as the means
to fight corruption. Where, then, do we turn to for help?