'I won't back off' says Bagir Manan

'I won't back off' says Bagir Manan

Uncertainty continues to surround the selection of the chief
justice following President Abdurrahman Wahid's refusal to pick
from two candidates, Muladi and Bagir Manan, nominated by the
House of Representatives (DPR).

Wahid, in an unusual gesture, has said he needed to consult
Vice President Megawati Soekarnoputri (who has also rejected the
two nominees) before making his decision.

Legal experts have said that the procedure was carried out in
reverse to how it is meant to have been done; the president
should have named the candidates allowing the DPR to approve or
otherwise. Bagir Manan share his thoughts about the confusion in
the following interview. Muladi's views on the issue appear in
another article on this page..

Question: How did you feel when President Abdurrahman Wahid
refused to pick either you or Muladi?

Answer: I felt nothing. But let's clarify something: the
public has been discussing this 'rejection' when in fact
everything is still uncertain. If the President indeed rejected
us, he could not only say it to the media because what he was
rejecting in fact was the DPR's proposal. He should have conveyed
this rejection directly to the DPR because this concerns
relations between the President and DPR.

Has the President formally conveyed this rejection to the DPR?
This is something that is not yet clear. The House isn't able to
take any position until the rejection has been officially made.
So we'll have to wait again.

What about your position?

I am a candidate, and merely an object. My position too, is
objective, namely that as long as the DPR do not revoke my
candidacy, I remain a candidate for the chief justice. It's up to
DPR. I do not have any plans to back off from the nomination.

What are the legal impacts of this prolonged uncertainty?

I think the longer the delay in filling the post of chief
justice, the more problems we will face. We must have a chief
justice as soon as possible, I don't care who, for several
reasons.

First, the Supreme Court is the highest state institution
equal to the DPR, the President, the Supreme Advisory Council
(DPA) and the Supreme Audit Agency (BPK). In legalese, this
institution is called the state's organ and yet how can a state
organ be without a head?

Second, there is increasing public demand for legal reform
which should be spearheaded by the Supreme Court. How could we
embark on such reform if this institution does not have a
chairman? Indeed some people, including officials, have said we
don't urgently need a chief justice because we already have a
deputy chief justice. But a deputy has limitations in their
position that would prevent them from leading reform.

Third, this prolonged uncertainty would only confuse the
public, and lead to further, unnecessary debates. Fourthly, all
these only strengthen the impression that there have been too
many interventions in our judiciary. This could debilitate the
institution, the way it was debilitated under the New Order.

Some have speculated that what is actually happening is a
wrestling match between Golkar and PDI Perjuangan parties, seeing
how both you and Muladi have been said to be 'partisans' of the
New Order and Golkar.

If that's true, I am not involved in that match. I don't have
any interest in getting involved. I am not a Golkar or PDI
Perjuangan cadre. I was nominated by the government.

Certainly I have worked as a bureaucrat of the New Order. But
again I was posted by the government because of my legal
expertise, not because of any political ties with the regime. I
did not have any political activities because I was not a player.
My Golkar membership was no more no less than the membership of
other civil servants at the time. Being a bureaucrat is not the
same as being a political actor.

Gus Dur has said a chief justice must be honest and clean.

I am not offended because I know how politicized this case has
been made. This is not a personal matter for me, but a state
affair. I do not need to declare I am honest; just prove me
otherwise. I do not feel like I have been dishonest, I have never
taken a bribe of even one cent. I have never been involved with
any corruption.

The accusations directed toward me are a political phenomenon,
not a legal one. Allah is my judge.

How do you explain the uncertainty in legal terms?

There are two main streams of opinion among legal experts.
Some have advised the President that he has the authority to
reject the chief justice candidates proposed by the DPR. Another
group has said otherwise. All these confusing opinions have been
made by legal experts. So I don't know whether they spoke on
behalf of some vested interest or not.

What is the legal status of Gus Dur's verbal rejection of you?

The crux of the matter is the relationship between the
President and DPR. Each is convinced of their own legal truth.
One side thinks that if a President has the authority to appoint
(a chief justice) then he also has the authority to refuse. The
other side thinks that the President's authority is only to enact
what's been decided by the DPR. Let them resolve this confusion.

What will you do if in the end you lost the selection?

I am still a justice at the Supreme Court. I never said I
would resign from the institution if I don't get that seat. I
don't have any problems (staying on).

What lessons can be learned from the current debacle?

That it reflects our inability to manage a healthy, democratic
constitutional system. We are seeing too many inconsistencies
here. There are many policies being carried out
disproportionately and in ways that run counter to the
constitution because they originated from vested political
interests.

We are still learning, though it seems to me that we are not
getting any smarter.

Things will be better if those running the country are willing
to sacrifice their own interests, to stop insisting that only
theirs is the right position to take. (Deka Kurniawan)