Heru Andriyanto – The attorney general's plans to challenge the Supreme Court's acquittal of retired Army Gen. Muchdi Purwoprandjono – accused of masterminding the murder of human rights activist Munir Said Thalib – should not be allowed to proceed as it violates Indonesian law, according to legal experts and lawyers of clients who had been cleared by the courts but convicted as a result of state-launched judicial reviews.
According to the law, only convicts and their families can apply for judicial review in criminal cases, legal experts said. They also called into question the convictions of former Bank Indonesia Governor Sjahril Sabirin, Djoko Tjandra and Pollycarpus Priyanto, a Garuda pilot found guilty of Munir's 2004 murder. Both had been earlier acquitted in court before the rulings were overturned in reviews.
"Article 264 of the Criminal Procedures Code clearly states that the right to judicial review is reserved for convicts and their families," Mohammad Assegaf, Pollycarpus's lawyer, said on Tuesday. "Accordingly, in no way can prosecutors, who represent the state, request this extraordinary legal motion."
Adami Chazawi, a criminal law expert at Malang's Brawijaya University who has written a book on judicial reviews in criminal cases, agreed. "The philosophy and basic idea of the judicial review is the presumption that a citizen has been erroneously sentenced for a crime he or she never committed."
Defendants who have been acquitted by the Supreme Court should not face further legal action, Adami said.
"After a conviction is upheld by the Supreme Court, the state provides the last hope by granting the right to judicial review for the convicts. So it really shocked me when the state itself, through prosecutors, requested the judicial review challenging the acquittals of defendants in several major cases. And to make matters worse, the Supreme Court accepted the request," Adami said.
Because the Supreme Court was on top of the justice pyramid, "any mistake it made could be considered the worst mistake," he said.
Adami said Sjahril and Djoko, who were both convicted for the PT Bank Bali embezzlement scandal, and Pollycarpus had all been wrongly convicted because their convictions were based on judicial review requests lodged by prosecutors after they had earlier been acquitted by the Supreme Court. Sjahril and Pollycarpus are serving jail terms while Djoko has fled the country.
"The press and human rights groups have contributed to the malfunction of the law by pressuring the AGO to lodge a review," Muchdi's lawyer Luthfie Hakim said last week. If the review is allowed, "the country's unpredictable justice system will get even worse."
Assegaf said it was the Supreme Court's fault for acquitting the defendants but later accepting the judicial review requests from prosecutors.
"When leading a panel, Supreme Court Judge Joko Sarwoko rejected a judicial review requested by prosecutors in the case of a defendant called Mukyar from Kalimantan many years ago. He firmly argued that the Criminal Procedure Code limited the right to convicts, not prosecutors," Assegaf said.
"But this very same judge joined the panel that accepted the prosecutor's request to review Pollycarpus's acquittal and he was later sentenced for murdering Munir."
"Joko at least should have expressed a dissenting opinion to defend his honor and consistency as a Supreme Court judge, but he didn't do that when handling the Pollycarpus case," Assegaf said.
However, veteran journalist Karni Ilyas, TV One's chief editor, said he didn't fully agree the media shared blame for the Supreme Court accepting judicial reviews. Lawyers also played a role, he said. "They know, for instance, that a convicted person can ask for a judicial review only once, but the lawyers keep asking for reviews again and again."
The AGO has still not lodged its request for a judicial review of Muchdi's acquittal because the Supreme Court has not yet officially given the AGO the full text of its decision.
"We have asked the South Jakarta prosecutor's office about the copy of the verdict, and the reply was that they had not received it yet," said Didiek Darmanto, an AGO spokesman.
"The absence of the verdict hampers our preparation for the legal motion because we need it to examine the legal considerations taken by the Supreme Court in acquitting the defendant."
The first-ever judicial review called for by state prosecutors was lodged in 1996 against the acquittal of Muchtar Pakpahan, who was then chairman of the Indonesian Prosperous Labor Union (SBSI). Muchtar had been accused of inciting hatred against the government but acquitted. The Supreme Court accepted the judicial review and Muchtar was sentenced to four years in jail.
Senior prosecutor Jasman Panjaitan has said the review application in the Muchtar case "was experimental," but once it was accepted by the Supreme Court, prosecutors took it as a legal precedent.
"In post-Muchtar cases like Sjahir and Djoko, we no longer treated our judicial review as an experiment. We have secured a guidance with the acceptance," he said. Jasman was on the Bali Bank embezzlement prosecution team.
Amid mounting debate over the legality of prosecutors being able to call for judicial reviews to challenge acquittals, Jasman said the argument came down to basic legal principles.
"So why do we need the law?" he said. "To ensure that order is consistently implemented and defended, or to create justice for the people? Because often both cannot run side by side."