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.