Whose justice is it, anyway?

By Donna K Woodward

MEDAN (JP): Indonesia is in a state of siege. From Sabang to Merauke Indonesia is besieged by bombings, burnings, chaos and corruption. Lawlessness reigns. The government is paralyzed by confusion, timidity and a new national paranoia over imagined attacks on its sovereignty.

In Ambon the military commander issues a shoot-on-sight order to be used against inhabitants, while in Atambua a swarm of police and military officers stand by and watch passively while a militia leader arrogantly disrupts a Vice Presidential photo-op, provokes his cohorts to reclaim their illegal weapons, then confidently swaggers away.

Is there no sense of proportion at the center of Indonesia's law enforcement command? Coordinating Minister for Political Affairs and Security Susilo Bambang Yudhoyono said that the confiscation of militia weapons must be conducted in an "appropriate" manner.

Are appropriateness, patience and politeness the new rules of engagement for law enforcement officers? What about the sense of urgency? Who has decided that militia murderers must be treated with kid gloves while civilians caught in a maelstrom beyond their making, merit summary justice? Whose justice is it, anyway?

Indonesia has an obsolete, jury-rigged legal system. Substantive laws are deficient and procedural rules severely restrict the presentation of reasonable proof. The court system as a whole is consumed by corruption.

The legal system simply does not serve the cause of justice. Short of feeding people, there is no greater need in Indonesia today than the need to establish the supremacy of law and restore faith in justice.

Notwithstanding this need, there are times when compelling circumstances dictate that states, even democratic states, suspend some of their usual rules of law for the sake of national survival.

When lawlessness is the kind associated with riots and street violence or war, governments impose martial law; indeed Indonesia has considered this. Though community violence is a growing problem, for Indonesia the more serious threat is the lawlessness which arises from the government's impotence in prosecuting corruption and human rights violations.

Exceptional measures of law enforcement are needed; not the usual martial law measures, but some other extraordinary measures to restore the community's faith in their justice system.

Law professor Charles Himawan alluded to this in his Oct. 4 article, "The dark tunnel of justice." Others have also weighed the idea of establishing special tribunals for certain cases, but the idea seems to have died. Should it be revived?

There is precedent for special juridical measures. In 15th century England the common law court system was a collection of inflexible technical rules that made it difficult for aggrieved parties to obtain justice. (Sounds familiar?) For relief, people turned to the king.

Growing out of traditional royal prerogatives, an alternate court system was instituted to shape equitable remedies that were unavailable under common law court rules. In the special courts the usual rules of law were not slavishly followed. These courts of equity facilitated justice on the one hand, but also compromised the common-law concepts of precedent and the rule of law. (Eventually courts of equity, the most notorious of which was the Star Chamber, were either abolished or integrated into the common law court system.)

England's 15th century legal system and Indonesia's current legal system, and their respective problems, may be more dissimilar than alike. But England's experiment may offer Indonesia a model: a special court for those cases in which the existing system fails to deliver justice.

To loosen the procedural controls on the judiciary or modify the rights of the accused are steps of last resort, but might be the lesser of two evils -- the greater being the impossibility of prosecuting high profile defendants.

The proposition of abridging rights is one that some civil rights advocates might categorically reject. But all legal systems are, after all, attempts at balancing competing rights: of the community against the individual, of one person against another.

Rights are not absolute and legal systems are imperfect. Responsible authorities differ about the protections the accused are entitled to. All criminal justice systems should meet recognized norms of fundamental fairness, but between legal systems variations are valid.

The idea of a special court with more broadly defined discretion to decide what evidence may be admitted and what may not, which defenses may be invoked, and when evidence is sufficient to support a guilty verdict, might be worth considering, at least as a transitional measure until Indonesia's criminal justice system is repaired.

Existing laws of evidence force prosecutors to ignore the most glaring probative facts because they cannot always be proved by direct evidence. Indonesia's jurisprudence seems not to allow for evidentiary 'assists' like rebuttable presumptions and circumstantial evidence.

Soeharto escaped prosecution because the rules allowed his attorneys to delay and obstruct proceedings on legitimate procedural grounds until age and poor health made prosecution impossible.

Must the country wait until the current generation of judges retires, and until there is a new generation of jurists to draft laws and a new legislature to enact the laws, before they see any degree of justice done with respect to the corruption and human rights violations of the Soeharto era?

Indonesia cannot afford that kind of patience. Populations will tolerate periods of economic hardship and social instability, if they have hope that fundamental justice will prevail within a reasonable time.

The prompt formation of a special court with its own procedural and evidentiary rules, and lawyers of impeccable integrity to try the major crimes that shadow the country, might restore that hope.

The writer, an attorney and former American diplomat at the U.S. Consulate General in Medan, is president director of PT Far Horizons management consultancy.