A Fifty-Fifty Chance?

THE Attorney General’s Office (AGO) must work extra-hard if it wants to battle it out against Suharto in the civil court. This is because many of the documents which their case is based on consist of mere photocopies. “Some of the documents are photocopies, but some are originals,” insisted Dachmer Munthe, the AGO’s Director for the Reinstatement and Protection of Rights, as well as Chairman of the Team of Prosecuting Attorneys, showing some original documents to Tempo, on Friday last week.

General (ret) Suharto, the most powerful man during Indonesia’s New Order period, is being prosecuted for misusing Supersemar Foundation funds for various purposes in open violation of the law. This foundation, established May 16, 1974, has at least Rp1.5 trillion in assets. This money was collected from government banks, which were required to hand over 2.5 percent of their annual profits. In addition to being channeled for social purposes, the funds also flowed into companies owned by Suharto’s friends and family. The money was sent to, among other companies, Bank Duta, PT Sempati Air, and PT Kiani Lestari.

Because some of the evidence consists of photocopied material, many are pessimistic that the state will win this case. “In civil cases, letters are stronger evidence than witnesses’ testimonies,” said Taufik Basari, an attorney from the Indonesian Legal Aid Society Foundation (YLBHI). In criminal cases, witnesses are indeed more important.

AGO spokesman Salman Maryadi realizes this limitation. The value of documents in civil and criminal cases is indeed different. In a civil case, formal evidence is absolutely necessary. “It must be original,” he said. In criminal cases, material substantiation is more important, so if an original document is not available, a photocopy can still be admissible in court.

According to Soeharnoko, a teacher of civil law at the University of Indonesia’s Law Faculty, in addition to documents, other evidence can include witnesses to facts, admissions made before a judge, and points inferred by the judge. However, he said: “In civil law, written evidence, namely Acts, are the prime type of evidence.”

Mohammad Assegaf, the lawyer who represented Suharto in the criminal case, made a counter-argument. Photocopied documents are a very weak form of evidence, “Because it is very easy to fake photocopied documents.” He is convinced that with such weak evidence, Suharto’s lawyers will be able to avoid it during the trial. “The case could be thrown out by the judge,” said this veteran lawyer.

Dachmer Munthe, however, is not worried. “Photocopied documents can be strengthened by having them verified legally and supported by witnesses’ testimony,” he said. Some of the original documents already in the possession of the state team of prosecuting attorneys include: the foundation’s bylaws and statutes, the decree by the Finance Minister requiring state-owned enterprises to deposit a part of their profits with the foundation, and the findings of an audit of the foundations by the Supreme Audit Agency (BPK). Only part of the foundation payment orders to companies owned by Suharto’s friends and family are in the form of original documents.

Soeharnoko feels that the state prosecutors are making the right move. “If they submit photocopies as evidence, it must be supported by witnesses’ testimony or other evidence,” he said. He also added that to strengthen their case, it should be followed by a request to confiscate assets. In this case, the prosecuting attorneys are going to seek compensation of about Rp1.5 trillion.

It is important to understand that in a civil case hearing the status of the plaintiff and the defendant are the same. The AGO, which is the state’s attorney, cannot use its powers—including requesting testimony, documents or confiscate materials—as it can when investigating criminal cases. Mohammad Assegaf added that if the prosecutors misuse their power, protests will be raised. “In a civil case, the status of the prosecutor is the same as me, a professional lawyer,” he said.

With this kind of evidence, according to Soeharnoko, there is an equal chance as to who will win or lose the case. Taufik Basari sees that everything depends on the ability and determination of the AGO. Unfortunately, he said, the reputation of the AGO in civil cases is untested. They often lose in cases of environmental pollution.

Most importantly, their political will is also in question. “Everything is still a big question mark,” said the Director of Legal Aid for the YLBHI.

Abdul Manan, Wahyu Dhyatmika, Arif Kuswardono

Tempo Magazine, No. 41/VII/June 12 – 18, 2007

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