Legal experts support plan to sue govt over R&D policy

Moch. N. Kurniawan, The Jakarta Post, Jakarta

Legal experts have come out in support of plans by non- governmental organizations (NGOs) to take legal action against the government over the issuance of a presidential instruction exonerating some former bank owners of their past banking crimes.

But the experts were divided about whether the NGOs should file a class action suit with the State Administrative Court (PTUN) or seek a judicial review with the Supreme Court.

Criminal law professor Muladi said on Saturday the NGOs should file a judicial review with the Supreme Court, which has the ultimate power to annul a presidential instruction.

He said the presidential instruction clearing former bankers of past crimes violated Law No. 5/1991 on the prosecutor's office, the Criminal Code and the amended 1945 Constitution.

"The NGOs must file a judicial review because the government cannot exonerate former bankers of their crimes through a presidential instruction.

"The only official who has the authority to stop a prosecution for the sake of national interests is the attorney general," he told The Jakarta Post.

By issuing the presidential instruction, the government violated the authority of the judicature to try former bankers, he said.

Muladi, who is also the managing director of The Habibie Center, a think tank set up by former president B.J. Habibie, said it was improper for the NGOs to file a class action suit against the government with the State Administrative Court, which he said did not have the authority to nullify a presidential instruction.

Besides seeking a judicial review, Muladi also suggested the NGOs file lawsuits against the former bankers.

A coalition of NGOs, led by Teten Masduki of the Indonesian Corruption Watch (ICW), have begun collecting signatures from professionals in Jakarta and other cities to pressure the government to drop the presidential instruction exonerating some former bank owners of their past crimes.

Teten has said the NGOs will file a class action suit against the government if it refuses to revoke the controversial "release and discharge" policy.

A bit more pragmatic than Muladi, legal expert Anna Erliana of the University of Indonesia said the NGOs should take all legal action available against the government.

"Several NGOs can file a class action suit with the PTUN, others can seek a judicial review with the Supreme Court," she said.

However, she said that if the presidential instruction did not specifically name any bankers, the class action suit would have weak legal standing and could be rejected by the State Administrative Court.

She quoted Article 1, Paragraph 3 of Law No. 5/1986 on the State Administrative Court, which stipulates that the PTUN has the power to try cases related to policies of state institutions that are concrete in nature, individual and final.

She said that should the suit fail to meet the requirements stipulated in the 1986 law, a judicial review with the Supreme Court would be the best course of action.

If the NGOs win either the class action suit or the judicial review, they could also file lawsuits against the former bankers in the state court, she said.

Judge Arifin Marpaung of PTUN Jakarta said the state administrative court would accept any class action suit as long as it challenged the legality of a government policy.

"It doesn't matter whether the policy comes from the president or some other state institution," he told the Post.

But the PTUN will only handle cases that involve losses by the plaintiff, he said.