The Supreme Court on Friday joined the chorus of legal experts fingering the Attorney General's Office as the primary reason antigraft deputies Chandra M Hamzah and Bibit Samad Rianto will be tried over extortion charges believed to be bogus.
Prosecutors, the court said, were solely to blame for their half-baked attempts to drop the controversial case last year.
Legal experts have said that if the AGO were serious about dropping all charges against Chandra and Bibit, it would have opted for a much stronger legal principle left over from the Dutch colonial system known as deponering, in which prosecutors drop a case in the common interest even if they possess solid evidence against the suspects. The principle is stronger because it eliminates any opportunity for the allegedly injured party to appeal.
"The only way to stop the legal proceedings and rescue the KPK [Corruption Eradication Commission] is for Attorney General [Hendarman Supandji] to opt for and use the principle of deponering," well-known lawyer Todung Mulya Lubis told the Jakarta Globe.
The AGO instead issued a letter known as an SKPP to halt the prosecutions, for what it termed "sociological reasons," suggesting that bringing deputies to court would be morally harmful rather than beneficial.
The Jakarta High Court on Thursday annulled the AGO's decision to stop investigating the two officials, leaving both Chandra and Bibit to face the possibility of being suspended from the KPK and tried.
Judge Muhammad Ritonga upheld the April 20 decision by the South Jakarta District Court, saying prosecutors must continue their investigation into Bibit and Chandra on charges of abuse of power and extortion linked to an illegal-procurement case handled by the KPK.
Supreme Court Chief Justice Harifin Tumpa said on Friday that the door of opportunity was now closed to the AGO should it want to appeal against the High Court ruling, which canceled out the SKPP. He said the last avenue in a pretrial motion was a High Court ruling.
"The ruling cannot be challenged at the [Supreme Court]. It is final and binding," Harifin said. "If they [prosecutors] wanted to drop the case for sociological reasons, they should have picked [the principle of] deponering."
The Jakarta High Court's decision was based on a lawsuit filed by corruption suspect Anggodo Widjojo, who challenged the AGO's decision to drop all charges against the two KPK deputies. The AGO's withdrawal of the case last year came amid strong suspicion that elements inside the office and he National Police, as well as Anggodo, had fabricated the case to bring down the pair.
Todung suggested that since Hendarman had opted not to pick the better, stronger legal option, Bibit and Chandra should "not beg for it and face the legal process like brave soldiers." He added that Thursday's court ruling was clear victory for those involved in corruption.
Jakarta High Court spokesman Andi Samsan Nganro said prosecutors should have chosen the correct option six months ago. "If this was for the interest of the country, they should have used deponering," Andi said.
Legal expert Chairul Huda also blamed prosecutors for creating an obvious loophole when they issued an SKPP to halt investigations into both deputies.
"The SKPP is open to legal motions," said Chairul, who testified for Anggodo when the businessman challenged the legality of the SKPP and eventually won the case.
The AGO on Friday defended issuing an SKPP, claiming that the principle of deponering would require the approval of the House of Representatives, the court and relevant government agencies.
"The process would have taken anywhere from six months to a year to complete," said Muhammad Amari, deputy attorney general for special crimes, noting that at the time, the public wanted Chandra and Bibit cleared of all charges immediately.
Law lecturer Eddy Hiariej of Gadjah Mada University in Yogyakarta slammed that argument as groundless.
"Exploiting the deponering principle is the exclusive right of the attorney general. What he needs to do is to consult with relevant law agencies such as the National Police or the KPK, and then he can use his arbitrary decision-making power to use deponering," Eddy told the Globe. "There is no law that obliges him to seek approval from the House."
Chairul said the AGO had created new problems in the scandal. "The charges of abuse of power and extortion carry jail sentences above five years, the minimum jail term that allows a suspect to be detained," Chairul said. "And the law says that a KPK official should be suspended once he becomes a suspect."
The KPK lost chairman Antasari Azhar after he was named a murder suspect last year and fired. Antasari was later convicted and sentenced to 18 years in prison. Heru Andriyanto & Farouk Arnaz