Is it possible to control our legal authorities?

By J.E. Sahetapy

SURABAYA (JP): Everybody seemed satisfied when the government and the House of Representatives announced the Criminal Code Procedure (KUHAP) would replace the old Dutch colonial criminal procedure regulation in 1981.

The colonial legacy or H.I.R. as it is known by its Dutch acronym Herziene Inlandsch Reglement had been applied since 1848.

The H.I.R. was very simple in terms of legal procedure and had many loopholes which public prosecutors could manipulate and abuse.

By very simple procedure, I mean that a judge, not a public prosecutor, wrote indictments. This was because public prosecutors were considered unqualified.

Most public prosecutors were probably not lawyers.

Later, after independence, written indictments were gradually done by public prosecutors.

Another loophole of the H.I.R. was how long could people could be detained.

Between 1949 and 1959, there was hardly any legal manipulation or abuse of power.

At the start of 1959, the legal horizon started to get cloudy.

After 1966, the H.I.R. was misused and abused until it was replaced at the start of 1982.

When the KUHAP was promulgated at the end of December 1981, legal professionals began to realize that the power elite's rhetoric that KUHAP was a legal masterpiece could not be substantiated.

Although KUHAP introduced a new element -- the "pre-judicial process" -- to safeguard the due process, police tried to manipulate it.

Pre-judicial process means people can sue the police or the public prosecutor for not carrying out their task as stipulated in the KUHAP.

Practically speaking, the KUHAP's legal stipulations relating to the pre-judicial process are hollow articles and almost every case taken to court has been rejected.

It is worth reflecting on what Jean Paul Sartre wrote in the introduction of Frantz Fanon's The Wretched of the Earth but slightly modified by me.

"In Indonesia the truth stood naked, but the powerholders preferred it with clothes on: the native had to love them, something in the way mothers are loved" (Jeaninnine Purdy, 1966).

There are many legal professionals and legal educators who speak about the struggle for justice and truth, but do not want to side with justice and truth.

Fifteen years after the KUHAP was promulgated, praise for it as a legal masterpiece has been tainted by many criminal legal cases.

Some examples are the cases of Waduk Nipah in Madura (1994), Marsinah (1994), Mochtar Pakpahan (1995), the case of a bloody demonstration in Ujungpandang (1996) to mention a few "cause celebre" and finally the bloody demonstrations and riots during the recent election campaign especially in Java and Madura (1997).

This does not even mention private legal cases which violated human rights and freedom of speech like the Tempo case.

All the cases mentioned above indicate how powerful the actualization of "power by remote control" is.

Not only the judiciary, but also the society, seem like a rotten fish. A rotten fish begins to stink not from its tail but from its head.

What are the important features of the KUHAP? A close look at the KUHAP reveals:

- presumption of innocence was laid as a fundamental basis

- a person can sue for compensation and rehabilitation if arrested without due reason

- the criminal justice system should be upheld on the basis of simplicity, without delays, cheaply, objectively, and independently

- equality before the law;

- arresting, searching, and confiscating should be on a basis of a written warrant

- legal aid should be given to the poor;

- suspects should be informed about their indictment when they are arrested

- process in absentia is not permitted

- courts should be open to the public.

In other words, criminal procedure is intended to control the legal authorities.

But, at present, the legal culture is rotten. The cardinal problem is whether these thing mentioned above can be carried out consistently and with consequence.

As long as corruption and collusion are rampant, even steps taken gradually toward a clean judiciary and government will not be enough.

Several steps about sustaining the KUHAP should be considered.

Firstly, there must be a clause stipulating how legal authorities are to be sanctioned for violating the KUHAP's basic rules. At present there is no such sanction.

Secondly, there must be a clause for "Miranda Rule" or "Miranda Warning".

This means the defendant has the right to remain silent.

He should also be warned that anything he says may be used against him.

Legal aid should be informed and if he cannot pay for it, there must be a regulation like Gideon versus Wainwright (1963), Escobedo versus Illinois (1964), or Miranda versus Arizona (1966) in the United States.

Thirdly, there must be a clear legal regulation about the re- trial process.

A case like Mochtar Pakpahan's (1996) should not happen again.

Fourthly, the use of violence and torture to force defendants to confess, like in the case of murdered female worker Marsinah, should be prevented. If they occur, those responsible should be punished.

Finally, witnesses should be treated humanely, with dignity, and should not have their rights violated.

As long as there is no transparency and the media is afraid to publish the truth, as long as power by remote control still uses "structural violence", to use Johann Galtung's expression, then we have a very long wait.

The writer is a professor of law at Airlangga University, Surabaya.