MA under fire over controversial bill
Fabiola Desy Unidjaja, The Jakarta Post, Jakarta
The Supreme Court has come under fire for considering drafting a bill that would allow immediate imprisonment without trial for those found in contempt of court, with critics saying this would breach criminal procedures and give judges too much authority.
Although acknowledging that the country required a regulation on contempt of court, legal experts Mahfud M.D. and Andi Muis said on Monday imprisonment without trial was wrong.
Constitutional law expert Mahfud said one of the main principles of the law was to ensure that justice was upheld.
"Sending people to jail without trial is against the founding principles of justice and any such regulation must be rejected," Mahfud told The Jakarta Post.
Mahfud, the former state minister for justice and human rights under president Abdurrahman Wahid, said every accused person deserved a trial no matter their alleged offense.
Muis of Hasanuddin University in Makassar said sending people to jail without trial was a violation of the Criminal Code.
Article 1 of the code states that no criminal action can be prosecuted except in accordance with the existing Criminal Code.
"Such a regulation (as proposed by the Supreme Court) goes against justice itself and would only provide excessive authority to judges. It is like political intervention on the part of the Supreme Court in the legal system," Muis said.
He said if the Supreme Court insisted on adopting the regulation it should issue other regulations to counterbalance the measure.
The Supreme Court has drafted a regulation on contempt of court aimed at protecting court's "dignity and honor".
According to the draft, criminal defendants, plaintiffs, defense lawyers, prosecutors, witnesses, police officers, court officials, journalists and visitors are subject to the measure.
Under the draft regulation, journalists could be charged with contempt of court for one-sided, subjective and judgmental news stories or for criticizing a judge's private life. According to the Supreme Court, these things could prevent a fair and free trial.
Currently, contempt of court is prosecuted under Article 310 of the Criminal Code on defamation, which carries a maximum sentence of 16 months in jail, and Article 311, which carries a maximum sentence of four years in prison.
As a comparison, in the United States contempt of court as a criminal offense is defined as willful disobedience of a court order or disrespectful behavior in the courtroom.
In the United Kingdom, it is defined as disobeying instructions from a judge or a court of law.
Mahfud said any contempt of court regulation in Indonesia would also have to cover the actions of judges, because rampant bribery of judges dishonored the court.
"It is common knowledge that many judges seek 'backroom deals' to settle cases. This has to be regarded as contempt of court," Mahfud said.
He recalled an incident about a decade ago when a defendant threw a shoe at the presiding judge after the court ruled against her despite a prior deal she had made with the judge.
"Although she disrespected the court the judge shared responsibility, and this kind of behavior should be covered in any regulation," Mahfud said.
In England, journalists cannot publish or broadcast information that poses a substantial risk of seriously prejudicing a fair trial.
Muis said that all concerned parties, including the press, should hold discussions to find a common definition of contempt of court for the media.
"What kind of news should be considered contempt of court, so that everybody has the same guidelines for determining contempt of court," he said.
He suggested that trial by the press should be regarded as contempt of court.
"It is true that the media has the obligation to honor other institutions, but this should be achieved by consensus," he said.