Why defendant can walk free after being found guilty

Why defendant can walk free after being found guilty

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

It happens here every now and then: A defendant is declared
guilty but can walk free after the judges have delivered their
verdict.

Ari Haryo Wibowo, alias Ari Sigit, and grandson of former
president Soeharto, was one of many defendants who "enjoyed" such
a verdict. On Dec.20, the Central Jakarta District Court found
him guilty of illegal possession of 70 live bullets and sentenced
him to a jail term of two months and 22 days.

But he was freed immediately after the hearing because the
sentence was deducted from the time he had already spent in
detention and under house arrest.

After being arrested on Aug. 14, 2001, Ari was first held at
the city police headquarters, and was then transferred to Salemba
detention center before he was later put under house arrest. The
period he had spent under house arrest was equal to one-third of
the time spent in jail. Therefore, the total of the time he spent
in detention was exactly equal to two months and 22 days.

Earlier last year, the Central Jakarta District Court found
Endin Wahyudin guilty of defaming two Supreme Court Justices,
Marnis Kahar and Supraptini Sutarto, and sentenced him to three
months' imprisonment.

But Endin was released after the trial because he had spent
exactly three months in detention during the interrogation and
hearings.

The most recent case occurred last week when the Tangerang
District Court convicted a labor activist for stealing a pair of
reject sandals from the factory where he used to work.

Even though defendant Hamdani bin Ijin wore the sandals only
for the wudhu (ablution ritual) before he performed Friday
prayers at the factory compound, he got two months and 24 days,
or the same as the time he had spent in detention at the
Tangerang Penitentiary.

Hamdani's sentence was more onerous than Ari's, who was
charged under Emergency Law No. 12/1951 with illegal possession
of firearms and ammunition. The charge carried a maximum penalty
of death, or a possible life sentence.

Lawyers also questioned why Endin was prosecuted even though
he was under the Attorney General's witness protection scheme.
The two Supreme Court justices were also prosecuted, but the
Central Jakarta District Court later set aside the case, giving
the reason that the prosecutor had charged them under the wrong
legislation.

While the public was disturbed by the unfair verdicts, it also
found it strange to learn that a court could hand down a sentence
exactly the same as the length of time already served by the
defendant.

A judge at the Central Jakarta District Court, who once handed
down a controversial verdict, admitted that judges could give a
light sentence because the Criminal Code did not stipulate the
minimum length of a jail term.

"Based on the code, a judge is permitted by law to set the
term," said the judge, who spoke under condition of anonymity.

According to Irianto Subiyakto, director of the Jakarta Legal
Aid Institute (LBH), and Johnson Panjaitan, the deputy chairman
of the Indonesian Legal Aid and Human Rights Association (PBHI),
agreed that such controversial verdicts reflected the
manipulation of law by judges, prosecutors and lawyers.

Theoretically, Irianto said, the verdict should be based on
several factors, such as the nature of the crimes, as proven in
the trial. The considerations were mentioned in the verdicts, but
there could have been other matters involved that were not
specifically referred to.

"But (in reality) we never know the judges' considerations
when handing down their verdicts," he told The Jakarta Post.

Many judges take advantage of the fact that they cannot be
prosecuted for their verdicts -- no matter how controversial they
are -- which has resulted in many unfair judgments.

"A judge here is responsible only to God for his or her
verdict," Irianto said cynically.

Johnson suspected that the loophole could create an
opportunity for collusion between judges, prosecutors and
lawyers.

"It is easy for a defendant's lawyer to negotiate a jail term
with judges," he said.

Irianto also said that judges might give a defendant a
sentence lasting as long as the time he had already spent in
detention because they were uncertain about what an appropriate
sentence should be.

In some cases, the judges did so because they wanted to
satisfy both parties, he said.

For example, in Ari's case, the judges wanted to please the
public by finding him guilty, but at the same time he was given a
light sentence to please the defendant, according to Irianto.