Sun, 02 Feb 2003

Esprit de corps and the sacrificing of the Indonesian judiciary

Winahyo Soekanto Lawyer Consumer Care Foundation Jakarta

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?