The pretrial Pandora’s box Michael Herdi Hadylayais  ;  A lawyer at a law firm in Jakarta

JAKARTA POST, 17 Februari 2015

                                                                                                                                     

                                                

In Greek mythology, there was a conflict between Zeus and Prometheus. Prometheus stole fire from the mighty god and gave it to mankind. The angered Zeus sent Prometheus to be chained to a rock in the Caucasus and sought his revenge on humans. He gave a beautiful woman named Pandora to Epimetheus — Prometheus’ brother- and despite Prometheus’ warning to Epimetheus never to accept any gift from Zeus, Epimetheus accepted Pandora and married her. On their wedding day, Olympian gods gave them a beautiful box but warned them not to open it. Unfortunately, the curious Pandora opened the box and released all the evils into the world. Now, the conflict is not between Zeus and Prometheus. It is Comr. Gen. Budi Gunawan vs. the Corruption Eradication Commission (KPK). The general challenged the legality of the antigraft body’s decision to name him a bribery suspect in the South Jakarta District Court. Budi won his case on Monday. It was shocking, not only because Budi is the President’s sole candidate as National Police chief, but also because it is unprecedented. There is no article in the Criminal Procedural Law (KUHAP) to allow such things. It is true that there are legal principles such as res judicata pro veritate habeteur (presumption of indisputable truth) and ius curia novit (the court knows the law). However, the more and more I learn about law, the more I am aware that these are merely fiction. The Comr. Gen. Budi Gunawan vs. KPK pretrial hearing showed clearly that not all judges know the law and so fail to bring forth indisputable truth in their decisions. The very basic principal taught in the first year of law school is that there is lex stricta in criminal procedural law. This principle guides all law students not to forget that a procedural law cannot be interpreted freely. One is bound to follow the rules strictly. Chapter 77 of KUHAP sets the competency of a pretrial hearing as the determination of the legality of an arrest or detention, the termination of an investigation or prosecution, and asking for compensation and rehabilitation. Thus, in not in a single clause, does KUHAP regulate challenges to a decision to name someone a suspect. Therefore, based on lex stricta principle, it was not within the competency of a pretrial hearing to examine this case. True, a judge must be free and independent. However, it doesn’t mean that a judge can make any decision without a basis. A judge is bound by the law and the principles of the law itself. If the case is a criminal case, the judge is bound not only by the criminal law and the procedural law, but also by the principles of criminal law. To address this case, the KPK can appeal to a higher court in this case since Chapter 87 (1) of KUHAP only stipulates that “no appeals may be logged for judgment in a pretrial review in the matters as intended by Article 79, Article 80 and Article 81.” None of the mentioned articles say anything about the decision to name someone a suspect. However, to choose the path of an appeal is problematic; by appealing we stand on the false grounds created by the pretrial judge. I can only imagine the implication of this judge’s decision in this pretrial hearing if the decision is used as a precedent. In the short term, Monday’s ruling is indeed a victory for Budi. But, in the long term, it is a fatal loss not only for the KPK, but also for the National Police, and all law enforcement agencies. If all suspects challenge their cases at court, the police will have to allocate a lot of resources just to face the pretrial hearings alone. The courts will be flooded with pretrial hearings. Thus a draft revision of KUHAP is urgent. For a long time, this was considered insignificant and not a priority for lawmakers. But since Monday’s decision by the South Jakarta District Court the government needs to respond swiftly. The Supreme Court should issue a circular, Surat Edaran Mahkamah Agung (SEMA), to stipulate limitations on pretrial hearings related to decisions on naming suspects. The Supreme Court, the House of Representatives and the President must now clean up this mess. In our current struggle for legal certainty we have failed as a civilized nation. The conflict involving Comr. Gen. Budi Gunawan has opened a Pandora’s box, and our nation must pay a huge price. ●