BURNING JUSTICE: Will reform follow or is it up in smoke?

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Attorney General’s Office. (Photo: Rayi Gigih/IO)

IO – The fire consuming the main building of the Attorney General’s Office (AGO) on August 22, 2020, not only left much damage, but also ignited critical questions by the public. Many people doubt that the fire in the building that houses the offices of Indonesia’s high-level public prosecutors was a mere accident. They are compelled to link the fire to the handling of the mega-corruption cases that are currently being handled by the office (an investigation into corrupt practices at the AGO and the involvement of a high-ranking officials at the AGO in the case of a judicial review filed by a fugitive convict). The public suspects that the fire was deliberately set to destroy evidence related to these cases. Public opinion can be gauged from conversations on social media not long after the fire broke out. 

Public suspicion is based on the fact that the six-story building not only houses the office of the Attorney General and Deputy Attorney General, but also the Deputy Attorney General for Training and Development (JAM Bin) and six other bureaus, including the Bureau of Human Resources (HR) and the Planning Bureau (including the office of Prosecutor Pinangki Sirna Malasari), and Junior Attorney for Intelligence (JAM Intel) and the three directorates under it. The public suspected that the building was deliberately set ablaze because the perpetrator wanted to remove evidence (physical as well as digital evidence/ CCTV) in Pinangki’s office (because she is implicated the bribery case of Joko Soegiarto Tjandra a businessman and corruption felon, which is alleged to also involve her superiors). In addition, the public suspects a lot of data and information involving officials in the state-owned insurers Jiwasraya and Asabri mega corruption case was burned up. So far, the Junior Attorney for Special Crime (Jampidsus) has only investigated the directors and commissioners of PT. Jiwasraya and the private sector. The public suspects that there are data and information is yet to be disclosed by the AGO involving high-ranking state officials. 

Do the allegations and suspicions have any basis? Attorney General ST Hasanuddin, at his first public appearance after the fire, stated that no files and evidence related to said cases were damaged, as they are stored in a different building, located hundreds of meters further from the main edifice. In other words, speculation that the AGO building was deliberately torched to remove evidence seems baseless. 

However, even though the Attorney General has clarified the matter, the public still suspects that the fire was deliberate, because the Burhanuddin didn’t mention whether important data and information regarding the abovementioned corruption scandals was burned up or managed to be saved. 

Currently, the Jakarta (Metro Jaya) Police Office is still investigating the cause of the fire. We believe that the investigating officers will be able to reveal whether the AGO building fire was caused by a short circuit or deliberate. If the latter is the case, we will know who the perpetrator is and what their motives are. Jakarta Police Office definitely has extensive experience in handling cases involving arson. 

The highest law is the biggest injustice 

Regardless of whether the AGO fire was accidental or intentional, the important thing to heed is the revelation of Pinangki’s involvement in Joko Tjandra’s filing of judicial review with the South Jakarta District Court. As is publicly known, Joko Tjandra fled the country after the Supreme Court, in its Judicial Review Decision No.12PK/Pid.Sus/2009 dated June 11, 2009, found him guilty and sentenced Joko to two years of imprisonment for corruption. Pinangki’s involvement in this case shocked the public. Moreover, according to the news, in the internal investigation conducted by the AGO, Pinangki revealed that she had met Joko nine times in Kuala Lumpur, without the prior consent of her superior. Since this news was made public, the level of public trust in the integrity of the AGO as a critical law enforcement agency has plunged. How could prosecutors who are supposed to uphold the law violate it instead? The public is left to wonder whether cases handled by the AGO are “negotiable.” 

But other critical legal experts argue that it is still debatable whether Pinangki violated the AGO code of ethics and the law. As a country governed by law, we must respect it, specifically the Principle of Presumption of Innocence. According to the opinion of several legal experts, from the perspective of legal prosecution/ procedure in the Criminal Law Procedures Code (KUHAP), it is Pinangki who has been treated unfairly and unjustly because both the prosecutors and panel of judges examining Joko’s judicial review have violated the provisions of the KUHAP, where article 263 paragraph 1 governs the subjective and objective requirements for a judicial review. The subjective requirement is that the individual eligible to file a judicial review is the convicted person or his/her heir. One of the objective conditions is that a judicial review cannot be granted in the event of an acquittal or discharge. 

The party who filed a judicial review in Joko’s case (where he was found guilty) was the Public Prosecutor (JPU), not the convicted man himself. The case filed for judicial review was the Appeal Decision of the Supreme Court No. 1688K/Pid/2000 dated June 28, 2001 with the ruling: “Rejecting the appeal of the petitioner: the Public Prosecutor of South Jakarta District Attorney Office.” Meanwhile, the South Jakarta District Court, in its decision No.156/ Pid.B/2000/PN Jaksel discharged defendant Joko Tjandra. Thus, the judicial review filed by the public prosecutor resulted in a discharge verdict. 

From a legal and ethical standpoint, Pinangki’s actions can be said to have violated the law, but substantively she might only want to help Joko pursue justice by filing a judicial review on the judicial review decision No.12PK/ Pid.Sus/2009. It seems what Joko and Pinangki attempted in this case is like the legal adage fiat justitia ruat caelum (let justice be upheld, even though the sky will fall). 

The panel of judges who examined the Joko Tjandra judicial review consists of five supreme judges. In reaching the decision, the judges’ decision was not unanimous. In other words, there was a dissenting opinion in the deliberation. Three members of the panel accepted the appeal filed by the prosecutor, and reaffirmed that Joko Tjandra committed corruption, the reason being there was a precedent in jurisprudence, namely, the Mochtar Pakpahan versus the Gandhi Memorial School case. The legal opinions of the three Supreme Court justices are supported by legal experts and anti-corruption activists. 

On the other hand, two members of the panel rejected the judicial review filed by the prosecutor, on the grounds that the prosecutor has no right to do so, and the discharge verdict is exempted from review. Also, KUHAP article 263, paragraph 1, stipulates that the prosecutor does not have the right to file a judicial review. Additionally, the two judges were of the opinion that the verdict filed for review by the prosecutor was a discharge (ontslag van rechtsvervolging). 

The decision of the judicial review filing triggered fierce debate among legal experts. Those who supported the three justices who accepted the judicial review argued based on the theory of progressive law. According to this theory, human (society) is above the law, not the other way round. Thus, the law must be implemented for the benefit of humanity. 

As for the experts who sided with the other two justices, they feared that the judicial review decision would potentially create legal uncertainty. In addition, the decision clearly violates the legality principle of the KUHAP, article 263 paragraph 1. Furthermore, the decision did not respect the opinion of the Constitutional Court Judge which basically stated the right to file a judicial review in a criminal case can only be done by a convicted person or his/her heirs. 

AGO performance 

The pros and cons of opinions regarding a phenomenon in society that uphold democratic values and in the legal community are normal. In the legal community there is a very well-known legal expression in Dutch, namely twee juristen, drie meningen (if two law scholars gathered, three opinions will emerge). Likewise, in the case of Joko Tjandra judicial review, which involved high-ranking law enforcement officers from the police and prosecutor’s office, legal experts have varying opinions on the matter. 

From the legal point of view, all experts agree that the high-ranking officers in the police and prosecutor office receiving bribes from Joko Tjandra cannot be excused (even on the grounds that Joko is fighting for his rights for justice). There is a principle which states that fighting for justice must not involve breaking the law. Regardless of the pros and cons regarding this matter, what is certain is that this incident has plunged the level of public trust in the Attorney General’s Office to its lowest level. 

The low level of public confidence in the AGO is not only due to Pinangki case. The Indonesian public has been skeptical about the performance of the Attorney General’s Office in carrying out its duties to uphold law and justice (especially in corruption cases). We can see this from the People’s Consultative Assembly Decree No.IV/MPR/1999 which stated that the determination to eradicate corruption, collusion, nepotism, and financial crimes as well as abuse of power had not been followed by concrete steps and the commitment of the government and law enforcement officials in implementing and enforcing the law. In 2004, Prof. Harkristuti’s assessment of the AGO found that the performance of its human resources is still low and far from the public expectations, as prosecutors should be professional and trustworthy (Legal Reform: Collection of thoughts from UI Faculty of Law Alumni 2004). 

In 2009, Dr. Yudi Kristiana, SH, MHum wrote a book titled Towards a Progressive Prosecutor Office: Studies on preliminary investigation, full investigation and prosecution of corruption crimes. In this book, Dr. Yudi (who is a public prosecutor) criticizes the performance of the Attorney General’s Office (the institution where he works). He wrote “the conventional bureaucracy practices of the prosecutor office in conducting preliminary investigations, full investigations, and prosecutions of corruption crimes are full of irregularities, thus creating a corrupt law enforcement culture; that cannot of course be ignored. The bureaucracy is corrupt in all three aspects, namely, weak legal substance, legal structure and legal culture. The reconstruction of the bureaucracy within the prosecutor office through a progressive legal approach is relevant and urgent.” 

Dr. Yudi Kristiana, SH, MHum is of the opinion that in renovating the bureaucracy of the public prosecutor office, attention must be paid to the aspect of behavior so that prosecutors who are handling corruption cases are not trapped by statutory regulations or become “prisoners” of law. Bureaucratic reconstruction must enable prosecutors to be freed from the centralized bureaucracy and they must have independence, not just carrying out orders from their leaders. In order to create a progressive bureaucracy, Dr. Yudi proposed the reconstruction of the structure, culture, and legal provisions for the public prosecutor bureaucracy system. Thus far, according to Dr. Yudi, the prosecutor’s bureaucracy system is highly centralistic and administered by a hierarchy with a strict chain of command. 

Conclusion 

Dr. Yudi’s opinion is a self-criticism of the Attorney General’s Office where he works. He represents the aspirations of those who want the AGO to be a credible, trustworthy and professional law enforcement agency. We must use the Pinangki case a momentum to overhaul the fossilized culture of the AGO. If we link the fire incident to Pinangki case, then we can use the AGO building as a metaphor. Let the old AGO building burn down. Let’s build a new building with the spirit of reform and culture of credibility, so the AGO can become a professional law enforcement agency capable of enforcing law in a just, fair and transparent manner. (Chudry Sitompul, S.H., M.H.)

Chudry Sitompul, S.H., M.H. is a lecturer and law observer from the University of Indonesia, serving as Chair of the Advocate Special Vocational Education (Pendidikan Khusus Profesi Advokat – “PKPA”) Steering Committee at the University’s Faculty of Law. As a criminal law expert, he wrote books titled “The Century Bank Scandal: Bail-out Manipulation of 6.7 trillion” and “The Century Bank Scandal: The Passing of Controlling Shareholders.” He also wrote a journal entitled “Internal Party Conflict as One of the Causes of the Complexity of the Multiparty System in Indonesia.”