Laws inadequate to charge Soeharto

By Donna Woodward

MEDAN (JP): Soeharto's remaining, dubious honor is his status as Indonesia's most wanted criminal. He represents all that was most wrong in the country, and the quality of the government's case against him will be a crucial test of President Gus Dur's government and the Attorney General's performance.

On July 28 this newspaper's editorial (A $155 million question) reflected the sentiments of many. Those sentiments were discouragement, disappointment, frustration and even outrage at the limited indictment against Soeharto handed down by the Attorney General's Office.

The former president in his capacity as chairman of several foundations has been formally accused of the embezzlement of US$155 million.

In view of the disappeared billions of dollars that the Soeharto family is suspected of having skimmed from state projects, companies and foundations; in view of the shameless abuse of power by Soeharto and his appointees; and in view of the military's crimes during the decades Soeharto was their commander in chief: in view of all this, people are understandably angry, impatient, desperate to see justice done.

It is the ultimate irony that this man who respected no law and honored no one's rights, during whose reign of corruption Indonesia's legal system lost its last shreds of credibility and respectability -- this suspect is now given every benefit of due process, his legal and human rights acknowledged and respected by the authorities. Should people be angry?

On the contrary. This is a sign of progress in law enforcement. It is to the credit of the President and Attorney General that they have not further debased the legal system by yielding to mass demands to get Soeharto at any cost, by manipulating the law or abusing their authority.

If it proves impossible to prove Soeharto's legal guilt within the framework of Indonesia's existing legal system, are the President and the Attorney General to blame? In a country that honors the rule of law, criminal convictions cannot be wished into existence.

They require evidence. And admissible evidence of corruption is in short supply. This suspect had unlimited power to conceal evidence. Witnesses, accessories to and beneficiaries of Soeharto's corruption are unwilling to testify to what they know and what they did and what they received in exchange for colluding with Soeharto, Ibu Tien and the children.

Thanks to the culpable inaction of the former attorney general, evidence gathering has been hindered by the passage of time. Those who think this case has taken too long might recall protracted cases in other countries. Consider Pinochet; consider the Marcos billions, from which the widow Imelda still seems to be living spectacularly well. Conscientious public attorneys don't seek public acclaim. They take their time. They work carefully and pay attention to the details that can mean the difference between a strong case and a weak one. They scrutinize evidence from many points of view to see whether it will withstand challenge.

A sloppy indictment would not survive even initial judicial scrutiny if there were clever opposing counsel. And if we can be sure of anything, we can be sure that this penniless suspect will have the best criminal lawyers money can buy.

Even in less corrupt legal systems, prosecutors do not always charge a suspect with all the things of which he may be guilty, if proof is unavailable.

Prosecutors often will try a notorious suspect on lesser charges instead of more serious charges, if there is a strong likelihood that the suspect might escape conviction altogether because of lack of admissible evidence of the more serious crimes. This is not necessarily a questionable prosecutorial move.

It is too early to say whether Attorney General Marzuki Darusman has done a good job or not in the Soeharto case. Marzuki's performance can only be judged when the case goes to trial. Given the unique significance of this case, it would seem wise for Marzuki to give a full accounting of the case rationale then.

What can be said now is that the Attorney General was severely handicapped from the outset by the time that elapsed before he assumed office. When compared with what happens in other legal systems where the rule of law prevails, his investigation was not unduly long.

Given the inadequacies in the applicable anti-corruption laws and the evidentiary problems in this case, Marzuki's strategy of bringing this particular charge might represent the best chance there is to bring Soeharto to trial.

Indonesia simply does not have the financial resources or even the legal basis under current laws to investigate and prosecute Soeharto's malfeasance fully. To have pursued such a mission would have been folly.

Given the constraints of this case and the fact that the Attorney General has succeeded in indicting Soeharto at all, a negative judgment of Marzuki's results at this point seems premature and unfair. His approach to lawyering may be just what the country needs.

The writer is director of PT Far Horizon consultant company based in Medan.