People are waiting for prosecution of 'big fish'
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.