Mochtar says court ruling on unionist illegal

Mochtar says court ruling on unionist illegal

JAKARTA (JP): Mochtar Kusumaatmadja, a former cabinet minister
and respected legal expert, deeply regrets the Supreme Court's
recent decision to send a labor activist back to prison after it
exonerated him last year.

Speaking to journalists during a break in a workshop on
national law development here yesterday, Mochtar said the ruling
was "against the law."

"The Supreme Court shouldn't have accepted the request for the
trial review because it's against the law," said Mochtar, former
foreign minister and professor of law at the Padjadjaran
University in Bandung, West Java.

The Oct. 25 decision of the Supreme Court that labor leader
Muchtar Pakpahan should go back to prison and complete the
remainder of his four-year prison term, overruled an earlier
ruling quashing all charges.

The ruling was made after the court reviewed the case based on
a request from the North Sumatra provincial prosecutors office.

Pakpahan was first found guilty of inciting a 1994 labor riot
in Medan, North Sumatra, and was sentenced by the Medan district
court to three-years imprisonment. A high court rejected his
appeal and increased his sentence to four-years in jail.

He was exonerated in September 1995 by a panel of Supreme
Court justices led by Deputy Chief Justice for General Crimes Adi
Andojo Soetjipto.

Another panel led by former chief justice Soerjono, however,
reviewed the case, annulled Adi's ruling and ordered that
Pakpahan complete the original sentence.

Pakpahan, leader of the unrecognized Indonesian Prosperous
Labor Union, is now under detention at the Attorney General's
office for allegedly inciting the Jakarta July 27 riots in which
five people were killed.

Soerjono's ruling sparked controversy, not only because the
man was thought to have a poor relationship with Justice Adi, but
also because the Criminal Code Procedure does not have provisions
for trial reviews based on prosecutors' requests.

Minister of Justice Oetojo Oesman argued yesterday that
prosecutors could request a trial review precisely because the
laws do not prohibit it.

Just because the law says that those who "can" file a request
for a trial review are the defendants or their beneficiaries,
does not mean that prosecutors are prohibited from doing it,
Oetojo said.

"It would be different, of course, if the law used the word
'only' instead of 'can' in its stipulation," said Oetojo.

The law actually says that a trial review can be requested
providing it was not of a court decision that has freed a
defendant.

Oetojo then said: "It's up to the justice to interpret what
'freed' means."

To suggestions that freedom should be an inalienable right for
a defendant once he or she is declared free from all charges,
Oetojo said: "We should also be aware that the law was made not
only for the protection of individuals but also for the whole
society."

"Suppose a dangerous person, acquitted by a court, walks free
in society. If the law allows the prosecutor to make a final
legal effort, the chance should be taken," he said.

The minister did not say who he meant by a "dangerous person."

The Supreme Court's last ruling on Pakpahan was the first in
Indonesian legal history because the request for a trial review
was made by prosecutors.

Meanwhile, the Indonesian Legal Aid and Human Rights
Association said yesterday the Supreme Court's decision puts the
nation's ideal of justice even farther out of reach.

At issue is Article 263 of the Criminal Code Procedures which
says that a trial review can be requested from the Supreme Court
by a defendant or his beneficiaries. There's no provision
enabling any party to request a trial review if the defendant is
ruled free by the court.

"The Supreme Court's interpretation of Article 263 .. has gone
too far and...fatal for the current criminal legal system we are
meant to uphold," the association said.

"The interpretation, supposed to be a 'legal breakthrough,'
has deviated from the basic philosophy of trial review, namely
the protection of the rights of a defendant or his or her
beneficiaries," the association said. (08)

Editorial -- Page 4