SBY’s war against judicial corruption: How far can he go?

Posted: February 13, 2010 in Uncategorized

The taskforce for the eradication of judicial corruption, or the “judicial mafia”, found special treatment being given to Artalyta Suryani, who was convicted for bribing a prosecutor, and Limarita, who was convicted in a drug case, at the Pondok Bambu penitentiary.

The Corruption Eradication Commission (KPK) arrested Anggodo Widjojo for allegedly trying to bribe the KPK. And the KPK is currently questioning Wisnu Subroto, a senior prosecutor at the Attorney General’s Office (AGO), over the bribery scandal involving Artalyta. Could these be the beginnings of success in eradicating judicial corruption here?

First of all, let us understand what the term “mafia” means. Referring to the Indonesian dictionary (Kamus Besar Bahasa Indonesia), the word “mafia” refers to a secret association working to commit crime.

With regard to the judicial sphere, the “mafia” refers to a group of advocates with power over court proceedings, which they use to release certain defendants so long as these defendants can provide the money they ask for.

“Mafia”, still according to the dictionary, also refers to a form of conspiracy between law enforcement officers and those who seek justice.

Therefore, the term “mafia” can be used to signify various actors ranging from a group of advocates, police officers, prosecutors and judges to wardens and prison staff.

It applies to any type of crime: corruption, land disputes, trafficking of women and children, weapons and drugs, and grave violations of human rights that are unpunished because of a partial court.

The word “mafia” originally referred to a secret political organization formed in Sicily, Italy.
Needless to say, that the word existed before Indonesia gained its freedom – more than 200 years before!

The mafia itself was formed from various clans with a background of economic and political interests. They ruled over almost all political, social, legal, economic and cultural attitudes (Letizia, 2003: 3).

In the mid-1930s, the organization was banned by Benito Mussolini. After World War II ended, they re-emerged and expanded to the American continent, as seen in the Cosa Nostra movement.

They succeeded in infiltrating the corridors of power in the political, legal, government and economic sectors using illegal means, outside any applicable rules and regulations (Letizia, 2003: 3).

Mafia, a la Cosa Nostra, is referred to by many as organized crime that is able to spread worldwide. Criminal gangs such as the Yakuza in Japan and the Vientiane in Vietnam are two examples of groups a la mafia in Asia.

In Indonesia, the mafia is more and more identified with the judicial process. The Judicial Commission classified four modus operandi used by the judicial mafia relating to judges’ duties.

These range from the postponement of sentencing, the manipulation of facts, applying laws that are inappropriate to the facts during trials, judges’ legal searches to find a way to shift the charges to another party, to the creation of fake sentences at the Supreme Court; all of which are insulting to the dignity and respect of judges.

For the National Police Commission, their concern is of the modus operandi in the reporting, investigating, examining and engineering of a prosecution that involve advocates, police officers and prosecutors.

Arbitrary arrests and detentions without evidence; or the opposite, omission of arrests and detention despite evidence; irrelevant searches; confiscation of exhibits with an incorrect number or documentation to obscure part of the facts, with or without prosecutors’ knowledge, in order to obtain a P-21 (the AGO’s endorsement that a case should proceed to court), immediately followed by arranging for a judge to support such a plan.

Although the National Commission on Human Rights (Komnas HAM) was not included in the presidential decree on the judicial corruption taskforce, the modus operandi is also found in cases of serious human rights violations.

Examples include examination without ad hoc non-prosecutor examiners; lack of certainty in the investigation status; documents declared missing when, in fact, they have been lent illegally to the defendants’ attorneys; refusing examination by copying arguments from defendants’ attorneys; transferring of documents minus the names of the main defendants; applying laws that are inappropriate to the facts during trials in order to postpone the formation of an ad hoc court.

As a result, the independence of the judiciary is merely an illusion. Article 24 paragraph (1) of the 1945 Constitution states “Judicial power is a power that is free to conduct judiciary in order to enforce law and justice.”

The United Nations Basic Principles on the Independence of the Judiciary (1985), Article 2 states: “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

The existence of judicial corruption destroys the independence of the judiciary. But to eradicate the mafia we have to penetrate the judicial divisions (judicative) because we are faced with black conglomerates that possess financial power; arms syndicate; politicians (legislative); bureaucrats (executive); and the military in power who, directly or indirectly, are backing up the judicial mafia.

The incentives are not only financial offers such as money or luxurious cars taking place in a hotels, on golf courses, in karaoke lounges or by telephone, but also nonmaterial such as restrictions, influence, persuasion, pressure, and murder threats on the roads.

Hunting and eradicating the judicial mafia requires a lot of courage. For example, we will need to suspend any law enforcement officers who conspire with case brokers, such as in the Anggodo case, and put them behind bars, then eliminate any law enforcers who are incompetent and lacking in integrity, as well as strengthen public supervision.

Eradicating the judicial mafia means eliminating a conspiracy, or a crime syndicate, committing illegal actions that lead to public crime. Such crimes must be stopped in order to get to a future where the rule of law is a basic principle of justice in this republic.

Perhaps we should remember what Robert F. Kennedy’s said, “Every society gets the kind of criminal it deserves.

“What is equally true is that every community gets the kind of law enforcement it insists on”.

If we let the judicial mafia run rampant, then it is a reflection of our society. But if society insists, the judicial mafia can be eradicated.

The writers are working with the Commission for Missing Persons and Victims of Violence (Kontras).

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