Justice for Soeharto and Guterres

Justice for Soeharto and Guterres

The need for a respectable judiciary was highlighted yet again
during the recent visit of a UN Security Council delegation to
the National Commission on Human Rights, of which Charles Himawan
is a member.

JAKARTA (JP): There are two seemingly unrelated events these
days but which are in reality very relevant to each other. The
first is former president Soeharto's appeal to the Supreme Court
against the Jakarta High Court's recent decision to reopen his
trial while the second is the insistence of the United Nations to
bring former East Timor militia leader Eurico Guterres to court.

The desire of the United Nations to bring to court all
suspects of human rights violations is long known. Last week it
was again emphasized by the visit of a UN Security Council
delegation, headed by Ambassador Martin Andjaba of Namibia.

This writer and his colleagues had the privilege to receive
this delegation at the office of the National Commission on Human
Rights office last Thursday, Nov. 16.

During the cordial discussion an understanding developed that
what is urgently needed now is a reliable judiciary and to bring
to trial to this type of judiciary, suspects of both human rights
violations and of economic and financial mismanagement.

The latter are known to be of particular interest to the
International Monetary Fund, the World Bank and the young and
vibrant international fund managers that roam the Internet.

It is simply not right if our object is only to bring the
culprits of Indonesia's ill to court without regard to the
respectability of this court. To date the court lacks this
respectability.

The emphasis of the UN Security Council delegation and the
international community, and also Indonesian reformists, should
therefore be on the establishment of a respectable judiciary.

To bring to trial both Soeharto and Guterres before the
existing judges would only invite confusion, laughter and further
derogation of law enforcement. The question is: What must the
government do in the immediate term to create a reliable and
respectable judiciary?

The first thing that it must do is to work closely with the
House of Representatives to add one or two clauses in the
existing legislation on the power of the judiciary.

This amendment should stipulate two items. The first is
that in trying suspects of financial mismanagement like Soeharto
and suspects of human rights violation like Guterres, the panel
of judges should be composed of career and noncareer judges (or
sometimes called ad hoc judges).

The philosophy behind this is two-pronged. One is the
assumption that a great number of career judges are already
polluted with corruption, collusion and nepotism and therefore
noncareer judges should be invited to participate in the trials.

The other is the assumption that there is technical know-how
of presiding over a case which only career judges are equipped
with. No doubt there are still good judges out there.

Some people have praised the judges of the Supreme Court who
had overturned a lower court decision, and handed down the 18-
month jail sentence for Hutomo "Tommy" Soeharto. Others, however,
have refrained from joining this hasty compliment.

Involving noncareer judges in the panel of judges for trials
such as Soeharto's and his son's is an idea already crystallized
in the draft bill on the establishment of a Human Rights Court
that has recently been approved by the House.

The involvement of noncareer judges may apply to the district
court and way upward to the Supreme Court, and to both general
and human rights courts.

The second item that should be stipulated in the amendment to
the legislation is to make it possible for judges who disagree
with the majority to write a "dissenting" opinion, and this
should be made valid both for economic and financial, and human
rights crimes. In other words, it should be made applicable for
both the human rights court and the general court.

Dissenting opinion institution is necessary to make the court
transparent and accountable as a U.S. chief justice, Warren E.
Burger once said "... the appearance of justice can best be
provided by allowing people to observe it."

Given such a composition of judges and the possibility for
them to deliver dissenting opinions, this would ensure acceptance
of the international community and the Indonesian reformists on
whatever decision the court might make -- whether they find
Soeharto and Guterres guilty or innocent.