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Separating the powers

Digest No. 28 (Indonesian news with comment) - March 20, 1997

Gerry van Klinken – Why is it so difficult to secure justice against the interests of the state? Because 'political' cases are sewn up outside the courthouse. But, if not in the courthouse, exactly where are these decisions made? In a little known but powerful club named Makehjapol, say lawyers widely quoted in the press recently. The elimination of Makehjapol is an important item on their agenda of legal reform.

Makehjapol (sometimes spelled Mahkejapol) is an acronym for the Supreme Court (Mahkamah Agung), the Justice Department (Kehakiman), Attorney General's Department (Kejaksaan Agung), and the Police (Kepolisian). It is an occasional forum of top officials from these four departments, first established in 1981 to coincide with the introduction of the new criminal code KUHAP. Its purpose then was to 'come to a common understanding' about the new code.

Similar forums exist at provincial and regency levels. Judges routinely meet police and military officials at Muspida meetings (Majelis Unsur Pimpinan Daerah). There is a provincial equivalent of Makehjapol known as Diljapol, consisting of the chief of court, the public prosecutor, and the police chief. Here favours are given and received, according to critics.

Pointedly absent from all these 'consultations', say legal reformists, are defence lawyers or other representatives of the accused.

In recent years the independent Surabaya lawyer Trimoelja has been a vocal opponent of Makehjapol. He said after being awarded the Yap Thiam Hien human rights award in December 1994 that this one institution did more to 'wreck' the rule of law than anything else. In February 1995 he said Makehjapol 'coordinates important and highly visible cases in which the Executive has interests to protect'. In January 1995 Kompas daily said that Makehjapol in fact decided controversial cases such as the Marsinah murder trial and the implementation of the controversial Traffic Law of 1992.

At a seminar last December to evaluate the implementation of KUHAP these last 15 years, University of Indonesia lawyer Loebby Loeqman said that Makehjapol was formed to shape KUHAP to the institutional interests of the forum's members, and this severely curtailed the rights of the accused. Legal aid lawyer Luhut Pangaribuan said Makehjapol proved that the law stood lower than the interests of the various government departments. Contradicting official rhetoric about 'coordination', he asserted: 'In court there is no harmony. There is only the material truth, in which the wrongdoer must be punished and the innocent freed'.

Constitutional law professor Harun Alrasid pointed out in mid-February that for all its power, Makehjapol was completely non-formal - in as much as it is not based on a presidential or any other decree. Legal aid lawyer Hendardi questioned the 'closed' nature of its deliberations.

Responding to these reform proposals, Sarwata, the new Chief Justice, said: 'Indonesia does not hold to a pure separation of powers, the Trias Politica, but to a distribution of powers'. Former secretary general of the Justice Department, Muhd. Salim, claimed the forum had last met in 1992 to discuss the Traffic Law. Minister for Justice Oetojo Oesman agreed Indonesia did not adhere to a strict separation of powers, and 'guaranteed' the forum never discussed particular cases. He said it may have discussed the registration of (international) brand names (which was controversial much more recently than 1992).

Are the legal reformists being quixotic? Perhaps. But, by tirelessly asserting liberal legal principle in the face of the facades of an authoritarian regime, they at least help counteract the recent alarmism over ethnic violence that drives politics into the arms of the military. At best they are laying the groundwork for a more democratic regime in the future.

[Gerry van Klinken, editor, Inside Indonesia magazine.]