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)

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