Shifting burden of proof may 'contravene human rights'

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)