People are waiting for prosecution of 'big fish'

Jeffrey Winters and Ridarson Galingging, Chicago

President Susilo Bambang Yudhoyono has stated repeatedly that he intends to make fighting corruption a top priority. If he does so, he will be the first Indonesian president since Independence to pay serious attention to the rule of law.

The rule of law means one thing: enforcement of the law fairly and justly for everyone. The "fairly and justly" part is more important than people realize.

It is obvious that the number of successful prosecutions must be increased. But an increase in quantity alone is not enough. How and why cases are chosen and handled is crucial to public perceptions about justice.

This means that SBY's attorney general, Abdurrahman Saleh, must be transparent about his methods and principles used in prosecutions.

Prosecutors must always be selective. Among Indonesia's corrupt elite, there are simply too many criminals to go after them all.

As Kwik Kian Gie once despaired publicly, if even half of Indonesia's worst criminals were jailed, the country's economy and government would probably collapse.

What are the methods and principles that Abdulrrahman ought to apply to strengthen the rule of law in Indonesia?

First is practicality. There are practical considerations in every case. How strong is the case, is the evidence good, are the witnesses reliable, and is there a reasonable expectation that the prosecution will succeed?

It is highly damaging to public perceptions of justice when a prosecutor drags accused persons through a high-profile legal process on the basis of a weak case, and then loses.

Second is scale. In a perfect world, all crimes would be punished. But resources are limited and difficult choices must be made. Police are poorly paid, investigators and prosecutors are too few and overburdened, and there are not enough courts, judges, or jails.

Abdurrahman said he would go after the "big fish." Society must accept that some medium and small fish will get away with their crimes. But at least the attorney general maintains the important principle that doing greater damage to society increases your chances of prosecution.

The third principle is equality. Indonesia's political conflicts and divisions are more personal than ideological.

It is very tempting to use prosecutions as a political instrument or a tool for revenge. Similarly, Indonesian patronage politics makes it tempting to shield friends and supporters from prosecution, even when they are not only big fish, but whales.

To succeed, Abdurrahman must be fair. There are plenty of juicy targets to prosecute in Golkar and Indonesian Democratic Party of Struggle (PDI-P).But if criminals who have moved closer to Susilo for protection are ignored, then the whole effort will be perceived as illegitimate.

Ironically, the rule of law for a society can be damaged by biased patterns of prosecution, even if your rate of prosecution increases.Divisive matters like political affiliation, religion, ethnic group, or regional base have no legitimate role to play in decisions about prosecutions.

Abdurrahman should pursue corruption cases committed by individuals connected to Golkar, Soeharto and his family, PDI-P, the Prosperous Justice Party (PKS), Crescent Star Party (PBB), the police, the prosecutor's office, the courts, and the military.

There are other important cases besides corruption.

Megawati showed no interest in prosecuting serious human rights violations. So the job has been passed on to Susilo and the attorney general to solve.

There are reasons to be cautiously optimistic. Abdurrahman is himself a former human rights lawyer, spending most of his legal career at the Indonesian Legal Aid Foundation and, more recently, at the Supreme Court.

As a Supreme Court justice, he stood together with brave and visionary justices like Artidjo Alkostar, avoiding his less distinguished colleagues.

He has a proven track record of integrity and he is skilled in the law.

The President chose a fine attorney general. But now he needs to back Abdurrahman fully by helping him clean out the rotten Attorney General's Office.

Indonesia has many good people who can replace corrupt prosecutors. But they always get pushed aside in favor of smiling crooks and charming thugs.

The Human Rights Commission (Komnas HAM), which has the power to conduct investigations into human rights violation, is headed by Abdul Hakim Garuda Nusantara.

Hakim is a serious human rights lawyer who also spent most of his legal career at the Indonesian Legal Aid Foundation. Abdurrahman and Hakim know each other well and "speak the same language" on law and justice.

Despite these positive signs, there are still reasons for concern.

There are questionable figures very close to the President and even at the Cabinet level whose activities merit investigation and prosecution. And the recent visit by Vice President Jusuf Kalla to Sudharmono sends a very ominous signal.

Kalla offered the absurd explanation that this courtesy call was to learn from Sudharmono about his previous experience as vice president. What parallels are there between being a willing underling of a corrupt dictator and being a vice president directly elected by the people?

For his part, Sudharmono admitted that his current job is as head of various Soeharto foundations.

The Indonesian population, the investment community, and many interested observers outside Indonesia are watching closely to see if the moment has finally come when rule of law will be strengthened.

Susilo has promised the voters to make the rule of law a high priority. So it is fair to hold him accountable on this issue when he starts his campaign for re-election four years from now.

Jeffrey Winters (winters@northwestern.edu) is a professor of political economy at Northwestern University. Ridarson Galingging (ridarson@yahoo.com) teaches law at Yarsi University in Jakarta and is currently studying for the SJD degree at Northwestern University School of Law in Chicago.