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.