The dark tunnel of justice

The dark tunnel of justice

By Charles Himawan

JAKARTA (JP): Hitherto many people believed Indonesia lacked
the resources immediately to revamp its law enforcement, because
this would involve a long chain, from the police to the
prosecutors and finally to the judges. With all these people
involved, such a process opens the door wide for corruption,
collusion and nepotism.

Right now the best thing is to start with law enforcement in
the narrowest sense of the word, i.e. in the court room where we
have to deal only with the judges.

Two cases of utmost importance this week show a flicker of
hope in the dark tunnel of the judiciary; the judicial decisions
regarding former president Soeharto and his son, Hutomo Mandala
Putra or Tommy. To understand this important link, we have to go
back a few years when Soeharto was still in power and when his
children began to enter the world of business.

It is a public secret that close confidantes of Soeharto, many
of them generals in the armed forces, often advised him to
restrain his children's business activities, because Indonesia
was not an extended sultanate of Surakarta, but a responsible
member of the United Nations. Hence, Indonesia was required to
abide by the ethical tenets of the state.

In a sense the generals abided by the words of caliph Abu Bakr
(573-634) centuries ago, who said "true criticism is considered a
loyalty, and false applause is treachery".

They knew the price they would have to pay in criticizing the
most powerful man in Indonesia, and they were removed from the
center of power. As Gen. MacArthur once said, they faded away.

Today political analysts generally agree that one of the main
causes of Soeharto's downfall was his children. They say that
were it not for his children, Soeharto would have been considered
a statesman. Assuming this is true, it is therefore justifiable
to punish Tommy, but not his father.

Though the decision in the Soeharto case far outweighed the
one in Tommy's case in every aspect, the two decisions bear
similarities; both sought justice, and here lies the problem.

People who support Soeharto, notably his family and cronies,
believe they have the right to demand Soeharto not be put on
trial, and consequently say the court decision to drop all
charges against him was just.

Yet those who are against the former president, notably those
who suffered under his rule, called the decision unjust, because
they believe they have the right to see Soeharto stand trial for
what they see as the many crimes he committed.

Similarly, people who support Tommy call the decision against
him unjust. On the other hand, people who are against him call
the decision just, because they believe Tommy must have done
something improper to have been able to amass such wealth in
Indonesia's business environment, where corruption is normally
the rule rather than the exception.

To avoid the pitfalls of these differing views, which are
subject to the moods and interests of particular groups of
people, we should speak of "human justice", not "people's
justice"; just like we speak of human rights, not people's
rights. Like human rights, human justice is universal and
transcends the interest of a particular group and state.

One advantage of seeing the issue from the point of view of
human justice is that we are not strictly bound by the black-and-
white rules of the Code of Criminal Procedures, which has been
the only point of reference.

To go beyond this "shackle" and to enter the realm of legal
philosophy is the work of the Supreme Court, and not that of the
district court or the court of appeal. And here we come to
another topic beyond the scope of this discussion -- how to find
clean judges, the lack of which was recently lamented by
President Abdurrahman Wahid.

Despite the suffering brought by the economic crisis of the
past two and a half years, people longing for peace may come to
realize that the two decisions do reflect human justice, though
not people's justice.

If they can see this, then the judges will become heroes. But
if the people of Indonesia see the court decisions as simply
reflecting the people's rights, then one group will see the
judges as villains and the other will see them as heroes.

If this continues to be the main philosophy of life there is
little hope for national reconciliation, and therefore little
prospect for political and social peace, and for lifting
Indonesia out of the economic mire in the immediate future.

The writer is a member of the Human Rights Commission and a
professor of law at the University of Indonesia in Jakarta.