Laws inadequate to charge Soeharto

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.