Supreme Court must end legal uncertainty of police

Supreme Court must end legal uncertainty of police

By M. Adnan Pandupraja

JAKARTA (JP): The controversy over Comr.Gen. Chairuddin
Ismail's appointment as deputy police chief has yet to be cleared
up, while unfortunately the debate has shifted from the core
issue, the institution of the police, to personal and group
interests. On the surface the question of the command structure
has not been settled, while the Jakarta Police chief has
apparently displayed disobedience toward his superiors.

Things would be worse in the event of the following:

* If President Abdurrahman Wahid used his power to cut the
logistics channel of the police chief and channeled the budget
allocated for the national police only through the deputy police
chief. This measure would be taken, should the President object
to charges of being inconsistent with his decree that declared
National Police chief Gen. Surojo Bimantoro non-active.

* If the regional police chiefs became divided in their
support towards Bimantoro and towards Chairuddin. In the light of
efforts by the President's lobbying team to approach legislators
representing East Indonesia, it is not impossible that police
chiefs from Sumatra and Java could support Bimantoro's
leadership, while others supported Chairuddin.

Dualism in the national police leadership started from the
issuance of contrasting presidential decrees by the President --
Decree no. 54/2001 and Decrees no. 40 and 41/2001.

The position of a presidential decree in our legal hierarchy
is clear, based on Decree of the People's Consultative Assembly
(MPR) no. 4/2000. A presidential decree is a legal instrument
issued by a president to implement a law, apart from government
regulations.

A presidential decree is made to carry out functions of state
and government administration, and is therefore operational in
nature.

Presidential Decree no. 54/2001 of April 25 on the
Organization and Operations of the National Police is thus the
operational instrument of MPR Decrees numbers 6 and 7 on the
split of the police from the Indonesian military (TNI).

While the law on the national police is yet to be effective,
the spirit of Presidential Decree no. 54 clearly aims to make the
national police chief the center of change within the police, as
intended by the above MPR decrees.

The MPR decrees rule that the appointment of the national
police chief should be the result of careful selection by
legislators, based on the recommendation of the president.

The central position of the police chief was transformed by
President Abdurrahman into the deletion of the position of deputy
police chief who is authorized to represent the police chief in
all his tasks. Previously a number of deputies answered to the
police chief.

However, despite the above central role of the police chief,
determining positions and appointing regional police chiefs
remains the prerogative of the president, based on Presidential
Decree no. 54.

This provides room for politicking between elements of the
police and the president. This decree can be said to have
virtually annulled MPR Decree no. 4, placing only symbolic
significance on the national police chief. This is because the
presidential decree only gives the police chief administrative
and command powers -- he is not entitled to dismiss regional
police chiefs.

Therefore, a regional police chief considered incompetent of
carrying out the president's mission in his area of jurisdiction
could be fired any time by the president, without prior
consultation with the national police chief -- which would also
mean overriding the role of the military's high-ranking officers
board that has so far provided joint leadership in this area.

Presidential Decrees nos. 40 and 41/2001 have made Bimantoro
non-active as national police chief, while appointing Chaeruddin
as deputy, who was authorized to take over the powers of the non-
active police chief. This presidential decree is considered
strange as it contradicts Presidential Decree no. 54, and it has
also negated the role of the legislature in the appointment of a
national police chief, a role that is in line with MPR Decree no.
6/2000.

The government has argued that the House of Representatives
(DPR) ignored the government's role in appointing a national
police chief when it failed to respond to the then controversial
appointment of Bimantoro in the first place. This bad precedent
has been transformed into an opportunity by the government to
corner the legislature.

The prejudice which could apply here is that the government
did not interpret the attitude of the House as an option to
remain passive; but the "positive thinking" view could see the
DPR's silent stance as tacit approval of the government's choice,
at the time, of Bimantoro as national police chief.

Subsequently, the decision to make Bimantoro non-active and to
appoint Deputy Police Chief Chaeruddin became an additional
element of the President's battle with the House.

What is needed here is assistance of a third party, the
Supreme Court, which could constitutionally assume the role of
mediator in this dispute, through its powers of judicial review
of regulations that are below the status of laws.

The most recent precedent was when the Supreme Court issued
its legal opinion concerning the release of the first and second
memorandums of censure by the legislature.

Its legal opinion was rejected by the government -- however
the incident shed light on the Supreme Court's stance in a
dispute between the president and the House.

The Supreme Court has not responded to requests from the
government to clarify its legal opinion regarding the
memorandums. As one of the state's highest bodies, it should be
aware of the tendency of governments to abuse the law, and thus
it should not remain silent -- or else Indonesia could become
completely lawless.

The Supreme Court officials should not be influenced by fear
of losing their jobs (as former top security minister Susilo
Bambang Yudhoyono said, on leaving his position). The country's
condition, at its lowest point following the economic and
political crisis, and getting even worse, should make the Supreme
Court rise above these fears. Unfortunately, we have not yet seen
significant improvement either within the Supreme Court or in its
legal output -- apart from the entry of non-career judges into
its judiciary.

However, the Supreme Court itself is caught in legal
inconsistencies.

Based on the Law on the Supreme Court no. 14/1985, its powers
include the right of judicial review of regulations beneath the
status of laws, such as presidential decrees; and the provision
of legal opinions, independent of any request from the state's
high institutions such as the presidency.

The Supreme Court's power of judicial review over a
presidential decree should be the way out of the confusion caused
by the contradictory presidential decrees mentioned above. But
unfortunately the Court's right of judicial review can only be
exercised in relation to an appeal made to it.

On the other hand, MPR Decree no. 4/2000 clearly states that
the act of judicial review does not have to be initiated via a
court of appeal.

Consequently the authority of judicial review based on MPR
decree no. 4/2000 contradicts with the Law on the Supreme Court.
Meanwhile, it is common knowledge that legal procedures can take
years, while the need to know which presidential decree should be
annulled is extremely urgent. This is in light of the threat of
attempts to politicize the police, both by the government or
elements within the police, in the absence of legal certainties.

Legal uncertainties can also be found in many other areas.
Hence the Supreme Court is challenged to be proactive in
resolving such a legal limbo.

The passive stance of the Supreme Court will not only destroy
values and existing systems, in this case regarding the police,
but could also create opportunities for the abuse of legal
loopholes. If necessary, the legislature and the Supreme Advisory
Council could also request legal opinions from the Supreme Court
regarding the police issue -- requests which the Supreme Court
would find it difficult to refuse.

The writer is Secretary General of the Indonesian Police Watch
(Polwatch) at the School of Law of the University of Indonesia.