Whose justice is it, anyway?

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.