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.