Gayus Tambunan: SBY Adopts A "Hands-On" Approach...

There is a limit to the "ummming" and "ahhhhing" that one's constituents can take before they start to get fidgety and demand a more hands-on approach to end what appears to be a never-ending lurch from one crisis to another. There is probably also a point that a president reaches where they can no longer look at themselves in the mirror without being horrified at their own incompetence. So, in many respects it is a "no-brainer" that Susilo Bambang Yudhoyono (or SBY to the masses) has decided to tell the nation that he has issued 12 presidential instructions and appointed the Vice President as his point man on the Gayus case.

Yet, the more hands on approach runs counter to the president's preference of the past. The president avoided getting involved in the shenanigans that saw two Corruption Eradication Commission commissioners investigated on fabricated evidence because he did not want to be seen to be interfering in the application of the prevailing laws and regulations. Yet, in this case he seems to think that it is time to meddle and sort things out.

Although his meddling is really an attempt to look like he is doing something without really doing anything at all. It is, for those of you familiar with the term, a "Clayton's Presidency"; the presidency you have when you are not having a presidency.

SBY has instructed law enforcement to cooperate. He has instructed law enforcement to engage the KPK in a more pro-active way in investigating the cases that have not already been investigated by the police. Oops, sorry Mr. President, but aren't the police implicated in some of these cases, and wouldn't having the police in charge of some of these investigations be a conflict of interest that is not all that different to letting the fox have the keys to the hen house? The KPK should be handling all these cases and the KPK must be given the mandate to re-open and re-investigate, if they so desire, any and all cases of their choosing. Anything short of this leaves you exposed to charges of favouritism and interfering in the drive to eradicate corruption.

One of the "biggies" that the president put forward was that it was time to adopt a reverse burden of proof. Simply, this means that the burden is no longer on the prosecution to prove the case, but the burden shifts to the accused to prove that they did not commit the crime that they stand accused of. The question that people should have of the president is where do you want to stop the reversal of the burden of proof? Is this just for corruption cases or is the intent to just reverse the presumption of innocence in favour of a presumption of guilt until such time as the accused can prove their innocence?

As a matter of interest, Mr President, how much smoke is needed to reverse this burden of proof? For example, if a citizen says that a bribe was demanded and then paid would this be sufficient to trigger the reversal and the accused receiver of the bribe have to prove they did not make the demand and accept the money or goods? What happens if someone accuses the president of having acquired wealth during a stint in the army from illicit means? Would the president then be required to prove the origin of their wealth? Is it not the case that the wealth reports that elected and appointed officials in government must complete designed for this purpose.

Reversing the burden of proof is a double-edged sword and a very slippery slope. In any event, one must ask whether a reversal of the burden of proof would have made any difference in this case?

But I digress.

The 12 Presidential Instructions in a nutshell are:

1. The National Police, Attorney General, and the Ministry of Law and Human Rights are to expedite the resolution of the Gayus case;
2. Increase the synergy between the Financial Transaction Reports and Analysis Center (PPATK) and the Legal Mafia Eradication Unit. And, the KPK to become more involved in cases not yet "handled" by the police;
3. Performance audits of all those involved in the Gayus case;
4. All the companies mentioned in the case to date are to be investigated;
5. Reverse the burden of proof;
6. Relevant agencies are to search for, locate, and repatriate all state assets including any money obtained corruptly;
7. All officials who have violated the prevailing laws and regulations are to be punished accordingly (within a week);
8. Restructuring of all organisations and agencies that have been found wanting throughout the Gayus case;
9. Review and reform of work systems to ensure that future failures of this kind do not occur again;
10. The president to receive written reports on the progress of the implementation of these instructions;
11. Progress reports are to be made public so that the knows what has been done, what is being done, and what will be done with respect to the Gayus case; and
12. The Vice President is appointed to head-up the supervisory team, and the VP is to be assisted by the Legal Mafia Eradication Unit.

Just a personal note. I am not convinced that this is a more hands on approach. To me it reads as a statement to try and preserve personal public support for himself while maintaining enough distance that he is not fully hands-on and can claim later, when this does not get a positive result, that people did not do as he instructed them to and therefore it is "not my fault".

Ho hum...

Manohara Odelia Pinot -- Part XII -- Indonesian Embassy in KL Strikes Back

The Manohara (photo) saga continues. For more on this case as written by yours truly, look here.

If the issues in this case, specifically the allegations of rape and abuse, were not so serious then this case would almost be fun to watch. Manohara and her mother, Daisy Fajarina, have been vocal in making claims against just about everyone who they feel have slighted them in some way in this whole affair. The Indonesian Embassy in Kuala Lumpur was no exception.

Mano, as she is now know affectionately, and her mother, have suggested that the Indonesia Embassy deliberately thwarted any attempts to deal with the matter and in fact was pro-active in keeping Mano in Malaysia because they had been bribed by the Kelantan Royal family.

This piece is not about whether the claims are true or false per se, but rather about the legal implications of making them. And, then failing to produce any evidence in support of those claims. It would not be a first for an Indonesian Embassy and the officials that work within to be accused of corruption and to have that proved. However, in the cases where the allegations were made, subsequent evidence was furnished in order to establish guilt, and then convictions were obtained.

The Indonesian Embassy in Malaysia has laid out in chronological order all of the efforts that they undertook with respect to the Mano case. Could they have done more? Perhaps. However, the claim was that they did not do enough. Therefore, this raises the important question of, "legally how much does an Embassy have to in order to protect its citizens who get into trouble abroad, either legal or personal?"

The Indonesian Embassy in Kuala Lumpur has also indicated that it is intending to sue Mano and her mother if the pair of them cannot come up with evidence to prove their claims. It would be interesting to see how the presidential candidates respond to the Indonesian Embassy threatening a victim of alleged domestic violence in this way. Interesting in the sense of whether they jump on board like they did in the Prita Mulyasari defamation case or just try and avoid it like the plague.

Although, the incumbent president has had a say on the matter here (in Indonesian). Nevertheless, it was pretty much run of the mill stuff. Generally, "this is a serious matter"; "better that Manohara talks to the Minister of Foreign Affairs"; and, "I have instructed the ambassador in Malaysia to watch the developments in this case closely."

Kompas has a detailed account of the chronology of events here (in Indonesian).

My personal opinion is that the burden of proof lies with those making the allegations. In this case the burden of proof in terms of proving the two primary allegations, namely: the Embassy did not do enough and that it accepted bribes, lies with Mano and her mother. If they fail to do so, and if one truly believes in the idea that all are equal in the eyes of the law, then Mano and her mother must be subject to the prevailing laws and regulations governing their conduct.

Despite the threats, the Indonesian Embassy in Kuala Lumpur has expressed their desire to facilitate any action that Mano and her mother want to take in Malaysia.

A simple defense is truth. Hopefully, Mano and her mother have truth on their side and can prove it.