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The empty chair legal conundrum

Source
Straits Times - July 28, 2002

Robert Go, Jakarta – Defence lawyers for former President Suharto's youngest son, who was convicted on Friday of ordering the killing of a judge, intend to focus their appeal to the High Court on a technicality – the judges delivered the verdict and 15-year sentence to an empty chair.

Mr Mohamad Assegaf, one of billionaire Hutomo "Tommy" Mandala Putra's lead lawyers, told The Sunday Times: "We cannot accept that decision. We will appeal. Our laws stipulate clearly that defendants be present at their own hearing. Judges are required to immediately inform defendants about his rights. These did not happen."

Tommy complained of diarrhoea and dizziness on Friday morning, and his lawyers left the court to protest the decision to continue without their client's presence.

Appeal papers would also charge that prosecutors never proved Tommy had a motive for ordering a hit on Syafiuddin Kartasasmita, a judge who earlier dared to hand him an 18-month jail sentence for allegedly swindling the government.

The police and court officials, Mr Mohamad added, conspired to frame Tommy by not allowing independent labs to examine ballistics evidence and by not fingerprinting weapons that allegedly belonged to the defendant.

"There are many reasons why that decision was a bad one. But the judges should not have continued the hearing if Tommy was ill," he said.

Appeal documents have to be filed within two weeks after Friday's hearing, which took place on the first anniversary of Judge Syafiuddin's death.

Tommy's trial poses serious implications for Indonesia's justice system, which was described recently as one of the most corrupt in the world by a United Nations investigator, and also is a major reason for foreign firms' reluctance to invest in the country.

Mr Ibrahim Assegaf, editor of legal portal hukumonline, argued that an iron-clad prosecution could boost confidence in Indonesian courts.

"Nobody trusts the system. People joke about it. Judges and prosecutors are said to be corrupt. Tommy's case could improve the image of the judiciary," he said.

Prosecuting Mr Suharto's children and those accused of corruption during his 32-year rule could help the fortunes of President Megawati Sukarnoputri's government.

Indonesia's supreme legislature – the People's Consultative Assembly or MPR – will meet in two weeks to demand an accounting of the President's first year in charge.

Several report cards published by rival politicians and analysts in local newspapers chastised her for her failure to address the country's many problems.

According to analyst Umar Juoro of the Centre for Information and Development Studies, the President can answer criticisms of her legal-reform agenda by pointing out a weighty jail sentence for Tommy, and promising more such decisions.

Much now rests on how the High Court, and perhaps later the Supreme Court, would treat the case and its controversial empty-chair verdict and sentencing. Meanwhile, experts are divided over the technicality.

Some, like Mr Teuku Nasrullah who teaches law at the University of Indonesia, said judges had violated Tommy's rights: "The verdict is a flawed one, if you stick to a close reading of procedural laws governing criminal trials." Others said that there are precedents and that judges simply followed a 1997 Supreme Court ruling that allowed a defendant's absence during sentencing.

Even if higher courts concurred with Friday's decision, doubts linger that Tommy, whose family is still very wealthy and powerful, would spend 15 years in jail.

Mr Ibrahim said: "It would be possible for them to pay prison officials for special privileges for Tommy, or even to get his sentence reduced at a later date."

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