Prosecuting Supreme Court justices

Prosecuting Supreme Court justices

Ridarson Galingging, Jakarta

A "war" between the Corruption Eradication Commission (KPK)
and the Supreme Court (MA) began when the KPK searched the MA
recently and took away some documents.

The search led to a KPK summons for Chief Justice Bagir Manan
to appear as a witness in an attempted bribery case involving
Probosutedjo, the half-brother of former president Soeharto.
Probosutedjo was found guilty of siphoning off a large portion of
the reforestation funds for himself, and now his case is under
appeal with the Supreme Court. Bagir Manan has not responded to
the KPK's first summons.

Can the KPK win this "war" by investigating the Supreme Court
and possibly convicting the justices involved of a crime? What
legal obstacles will the KPK face in its effort to clean up
Indonesia's highest judicial body?

Public opinion seems to have cornered the MA and sided with
the KPK. The speaker of the House of Representatives and many
legal scholars have pressed Bagir Manan to comply with the
summons.

At first the MA cooperated with the KPK by allowing the
corruption team to conduct its search of the justice's office
handling Probosutedjo's case. But then the MA began to fight back
against the KPK, citing several legal irregularities during the
search.

Legally speaking, the odds are weighed against the KPK winning
this war. The KPK has taken on the judicial body that has the
final say in every legal dispute. Questions about the legality of
the KPK's actions at the MA will likely be decided by the MA
itself. Despite these odds, it is worth trying to use this
momentum to clean up Indonesia's corrupt judiciary, all the way
up to the highest level.

The first legal obstacle faced by the KPK is on procedural
grounds. The search was sloppy in that the KPK officials used
mass media pressure to get Bagir Manan's personal approval to
conduct the search.

Article 33 (1) of Criminal Code No. 8/1981 (KUHAP) states that
a court order is necessary to conduct a search, and it is very
likely that the MA will challenge the illegal search at the
pretrial hearing (habeas corpus). It would be remarkable if the
KPK won in this pretrial hearing because under the prevailing
legal culture in Indonesia, a lower district court would strongly
favor the arguments of the MA over challenges by the KPK.

The requirement to get a court order before a search is not
only found in Indonesia but is a common rule in most democratic
countries. In the U.S., for example, evidence seized in violation
of the Fourth Amendment to the Constitution cannot be used as
evidence against defendants in a criminal prosecution. Thus, if a
search is illegal to begin with, the products of that search, no
matter how incriminating, are inadmissible as evidence.

This is a very important principle to prevent the powers of
the state from being abused. Judgments that exclude incriminating
evidence teach an important lesson to the police and
investigators that failing to follow proper procedures carries
disastrous and embarrassing consequences.

Article 170 (1) of KUHAP, which exempts certain individuals
from testifying, presents a second hurdle in the KPK
investigation. Certain professions, such as priests, judges and
attorneys and journalists, are exempt under this article from
being a witness in court if their testimony concerns information
entrusted to them. Chief Justice Bagir Manan might, in theory,
exempt himself from being a witness in a case he himself is
handling. This is one way of interpreting Bagir Manan's request
to the KPK that questions be submitted in writing before he will
decide to comply with the next KPK summons.

If an actual arrest becomes necessary, the KPK will face less
of a challenge. Article 17 of Law No. 14/1985 on the Supreme
Court states that presidential approval is needed to arrest
justices involved in a criminal case. Officials from the KPK have
met with the President.

A last hurdle for the KPK concerns the copy the investigators
made of the justice's draft opinion (adviesblaad) in
Probosutedjo's review case. The draft opinion can only be read
and used by the justices handling the case. It was an error for
the KPK to confiscate the adviesblaad and it is unlikely the
courts will allow it to be used as evidence to convict the
justices.

Judges have legal immunity from prosecution for the content of
their opinions or decision. Any disputes regarding a judge's
opinion or statement must be channeled through the appeal or
review procedures available within the legal system, not by
attacking the judge criminally or through civil suits.

Most legal systems around the world defend this principle of
judicial immunity, which is an important protection of judicial
independence. Judges are often called upon to decide
controversial, difficult, and emotion-laden cases. Judicial
immunity shields them from the concern that disgruntled litigants
will hound them with lawsuits charging improper judicial
behavior.

In the U.S. for example, the doctrine of judicial immunity is
deeply entrenched in its legal system. Judges enjoy a substantial
degree of immunity from civil liability. On the other hand, with
one minor exception for malfeasance or misfeasance in office,
judges possess no immunity for their criminal behavior. Whatever
threat criminal liability might pose to judicial independence, it
is not strong enough to override the importance of enforcing the
criminal law, and it has been consistently recognized that judges
should not be able to hide behind their office as shelter for
criminal behavior that harms society.

Despite these legal hurdles, the KPK has begun a very
important step in combating the rampant judicial corruption at
the country's highest level. However, the KPK's legal knowledge
should be deepened to avoid mistakes in the future that could
damage the KPK's reputation. The KPK's investigators must have
not only high spirit in fighting corruption, but must also be
equipped with high legal knowledge and skills.

To win this war on corruption, the KPK will face sophisticated
legal attacks from the judges, prosecutors, and lawyers being
investigated. Such figures have wide and strong networks as well
as rich financial resources to pursue their defensive tactics.

The writer (r-galingging2004@law.northwestern.edu) is a
lecturer in law at Yarsi University in Jakarta and a doctoral
candidate at Northwestern University School of Law in Chicago.