Shifting burden of proof may 'contravene human rights'

JAKARTA (JP): The Indonesian Judges Association (Ikahi) warned on Wednesday that the proposal to shift the burden of proof onto the defendant in certain circumstances needed a thorough analysis as it could result in human rights abuses.

After a meeting with President Abdurrahman Wahid at Merdeka Palace, newly-appointed Ikahi chairman Toton Suprapto said such a system would be effective only if it did not contravene the other prevailing regulations and laws.

"Requiring defendants to prove that they are not guilty is good, but we should first consider the consequences, which may include human rights violations," Toton said.

Supreme Court justice Toton said the country had long applied the international principle of presuming somebody innocent until proven guilty, which was the direct opposite of the proposed system which presumed the accused to be guilty even before a verdict had been issued.

Indonesian law, he added, stipulated that the presumption of innocence was a defendant's right. This meant that it was the prosecution that had to prove the defendant guilty.

Toton was responding to the President, who told a House of Representatives plenary session recently that the government was considering reversing the burden of proof in certain cases, including corruption and narcotics cases. Abdurrahman said that prosecutors often experienced technical and legal difficulties in providing evidence in such cases.

Attorney General Marzuki Darusman has repeatedly argued that his office's sluggishness in prosecuting major corruption cases was due to the lack of strong evidence.

A government regulation in lieu of a law on reversing the burden of proof so as to combat corruption is currently being drafted.

Toton insisted on Wednesday that such a government regulation could only be introduced under a state of emergency.

Ikahi, he said, remained undecided about whether corruption in the country had reached such an extent that a state of emergency needed to be declared.

One of the five new Ikahi executives who accompanied Toton, Paulus Effendi Lotulung, said that reversing the burden of proof should not be applied discriminatively nor used in the prosecution of past cases as the country adhered to the principle of nonretroactivity.

Toton also said that during the meeting he had urged the President to immediately appoint a supreme chief justice, a post which has been vacant for seven months.

President Abdurrahman has rejected the two candidates screened by the House -- Muladi and Bagir Manan, and has requested that the legislators pick other candidates.

Separately, the Movement of Concerned Citizens on State Assets (Gempita) urged the government to establish an independent agency to fight corruption which would apply the reversed burden of proof procedure so as to reduce the amount of investigation required.

The agency must consist of public figures from outside the bureaucracy, whose task it will be to collect information from the public on corruption in the government, judiciary and law enforcement apparatus.

"The findings would then be reported to the Attorney General for further legal proceedings," Gempita said in a statement signed by its chairman Albert Hasibuan.

Gempita also expressed the hope that the agency would come under the coordination of Vice President Megawati Soekarnoputri as the de facto head of government. (bby/byg)