26 October 2010

Deponeering and the KPK...

Will they or won't they, that is the question?

It seems every man, woman, child and perhaps some of our friends from further afield in the animal kingdom are weighing in with what the Office of the [Acting] Attorney General should do in the case of the "fabricated case". So, not one who like to be left out, I figure I will weigh in with a few "insights" of my own.

Deponeering is a legal remedy that the Attorney General has at their disposal to discontinue the prosecution of a case where the discontinuing is in the public interest. This case should not be deponeered. The simple reason is that there is nothing that is subject to deponeering. There is no case!

The case from the outset was a complete and utter fabrication. It was a fabrication constructed to tarnish the good names and reputations of two men whose crime was to passionately believe in the vision extolled by the current president to rid Indonesia of the scourge that is corruption. For their passion they were sent forth as sacrificial lambs by the president who they have so faithfully served.

What should, no, what must, happen with this case is that it should be dismissed with prejudice. There needs to be a very public apology issued to both men, Chandra M Hamzah and Bibit Samad Riyanto, that states unequivocally that the case against them was fabricated, that there was never any evidence to sustain the allegations, and that they will be compensated if they so choose to pursue any civil claim.

Anas Urbaningrum, the Chair of the Democrat Party, has been vocal in expressing the Democrat Party view that the best course of action now is deponeering. I beg to differ. Mr. Urbaningrum represents the political vehicle of the president, and perhaps the deponeering view is the president's view as well. And, if it is the SBY view, then I would suggest that the president is a coward. Deponeering by its very nature can be interpreted as there is a case to be answered but rather than force the answers to be brought forth at trial the big picture of social and civil stability calls for a trial to be avoided.

Once again, it is time that the president stepped into the great abyss that is Indonesian politics and said, "This case is not going to be deponeered! There is no case to be answered! This case is going to be dismissed because the 'evidence' that it is based on is not evidence at all, but lies." Is this going to happen? No! Why won't it happen? It won't happen because deponeering is a face-saving measure where the president can claim that he was right not to get involved, that justice has run its course and justice has been done. The president has just about always been somewhat two-faced on anything that is significant to Indonesia making real progress.

Once again, deponeering this case is not justice served, it is justice denied.

1 comment:

Barry Grossman said...

The Bibit & Candra fiasco exposes a fundamental flaw in Indonesia's criminal justice system.

In a system sadly plagued by rampant corruption itself systematically promulgated through a highly developed "legal mafia," prosecutors are charged with seeking convictions rather than "truth." This quest for convictions in practice and in principle respects few principles of justice held dear in mature criminal justice systems. In Indonesia the criminal process is all too often commandeered by the payment of money either to convict innocents or to acquit the guilty.

Within this murky process, the simple and low level administrative act of certifying a case as "complete" and ready for trial (P21) unleashes a runaway train which cannot be stopped without a trial. The trial process is itself driven by legal mechanisms which ensure an overwhelming tendency to convict the accused with few of the safeguards, checks and balances that we take for granted in western systems of criminal justice. Not even the prosecutor assigned to a case has authority to stop a trial once the P21 is issued, even when there is a complete lack of evidence and overwhelming exculpatory evidence to support a finding of innocence. The process, it appears, is little concerned with justice, truth, facts or evidence.

The only mechanism that exists to derail a criminal process once certified P21 is the cumbersome and impractical "deponeering." That there was no legal foundation for the P21 certification is entirely irrelevant. The runaway train must go on!

The Bibit & Candra case shows us that once certified P21, only a deponeering can halt a criminal prosecution without a trial and related outcome. As you point out, this is process is itself quite unsatisfactory and something of a Hobson's choice. Moreover, it is a political process that runs at the highest levels of Indonesian society and is therefore unavailable to any but the most lofty victims of a system that often criminalizes the innocent.