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Fighting the 'Judicial Mafia'

VOL.XII No.13-14 Dec 22,2009

On November 23, President Yudhoyono gave a televised address regardinghis derision on the Team 8 recommendations, which, though deliberately ambiguous, signalled to the Police and the Attorney General's Ojсe that the case against КPК deputies Chandra M. Hamzah and Bibit Samad Rianto was too weak to pursue. On the December 3, Thе Executive Network (TEN) brought together a panel of experts to address the issues raised by the casе, including what could be done to fight what has come to be called the judicial mafia,'and what institutional reforms need to be undertaken to see to the survival of the KPK

Еrrу Riyana Hardjapamekas - Former KPK Deputy

I will begin my saying that the judicial mafia is only one of many mafias in Jakarta and Indonesia. Thеге's  also the timber mafia, oil апd gas mafia, mining mafia, land mafia: all sorts of mafias.

The talk of the judicial mafia began with the playing back of a wiretapped telephone conversation at the Constitutional Court, which was an historic event. That [recorded conversation] was the tip of the iceberg. We knew that the judicial mafia was there and operating in very conducive conditions but thаt showed us the extent.

Based on the recommendation of Team 8, the president is trying to solve the problem of the mafia by forming a task force. Our SBY [Susilo Bаmbапg Yudhoyono] likes to form teams. Maybe Later His Excellency Dillon will head one of those teams on the eradication of the Poverty mafia.

What Pak Kuntoro did after he got thе assignment to deal with the judicial mafia is what I would like to share with you. For him, the first step is mapping the modus operandi of the mafia working with thе police and the Attorney General's Office [AGO], and also with the KPK but not nearly to the extent as with the AGO, and I'm not just saying that because I am a former member of the KPK.

Number twо, thеrе must bе some shock therapy [removal of individuals involved in corruption].

Number three, the problem in Indonesia is that the Law is pretty good but that the law enforcement agencies are not good. There is the view that bad Laws with good law enforcement agencies is better than good laws with bad law enforcement. Iп Indonesia, both are pretty bad. The system of laws needs to bе harmonized because there are lots of conflicting laws and that is one of the steps that Pak Kuntoro is trying to take.

The kеу words of this endeavour are transparency and accountability. That is what we lack. We need tо review the blueprint for legal reform and for bureaucracy reform. As you mаy be aware, two years or more ago, SBY declared that bureaucracy reform was a must. Bureaucracy reform must be started in the law enforcement agencies, beginning with the Supreme Court, the AGO, the police and then the military.

That's only for the lаw enforcement sector. The other sectors, like those under Sri Mulyani: tax, customs аnd excise and all financial sectors, are more progressive than the law enforcement and judicial sector. So systems-wise, the judicial mafia has to be eradicated through bureaucracy reform of the Supreme Court, the AGO, and the Police. The military must follow in order to prevent it from becoming a part of the mafia.

So that in brief is what Pak Kuntoro is trying to do as a follow up to his assignment to eradicate thе judicial mafia.

Toduпg Mulya Lubis
Lubis, Santosa & Maulana; Member of Team 8

I have been practicing law for more than thirty years and since that time there has been talk of advokat hitam оr `Ыасk Lawyers: This is the term used by people referring to the legal mafia. When I attended that meeting at Pak Kuntoro's оffiсе a couple weeks ago, quite a lоt of attended that meeting including pеорlе frот thе police and from the Attorney General's Office, thе Supreme Court, thе Judicial Commissions, the commission to protect witnesses and victims of crimes, and I represented the lawyer's community in that meeting. What I did not gather from that meeting was a clear concept of how to fight the mafia.

In every agency and institution, there is a code of соnduсt, a cоdе of ethic; there is some kind of internal mес anisms tо supervise and control the employees. But leaving it to internal mechanisms of the agency, like the Supreme Court, thе AGO, or the Police, we all know that nothing has been done and the mafia is still there. In fact, when we listen to the conversations between Anggodo [Widjojo] and members of the police and prosecutors, we realize how badly damaged thе legal environment is in Indonesia at the moment.

So I agree with Рak Erry that shock therapy should be undertaken. I told Pak Kuntoro that unless you arrest and punish one judge, one prosecutor, one police officer, and оne lawyer every month, then the task force against the mafia would not lead to anything in our lifetime. Its that kind of shock therapy that needs to be undertaken bу this task fогсе if they hope to bе successful in fighting this mafia.

Of course, this mafia is not just thе judges or thе lawyers. The journalists and businessmen arе also playing а part in this mafia. Anggodo's а businessman who has an enormous network of contacts iп the judiciary. If thе police fail to get Anggodo, then I myself have no confidence in this task fоrce because he should be immediate target of this task force if they want to succeed.

I'm not saying there hasn't been anу improvement in our legal institutions and Law enforcement in the Last five or six years. There have been some improvements. But what happened with KPK shows that despite thе improvements that have taken place in KРK, the police, and thе judiciary, they are have all been faced with an opposition who wants to weaken these institutions. Members of civil society and anti-corruption activists coined the phrase: `corruptors fight hack: The corruptors are trying to do everything possible to weaken the KPK. The case of Chandra and Bibit is the last attempt by them to weaken thе KPK. Prior to the case against Chandra and Bibit, we also had the law on КРК and the new draft bill passed by parliament to weaken the anti coruption court. These instances are the worst of what we call thе corruptors fight back' phenomenon in Indonesia.

If I were to ask, will we have more certainty in law enforcement, in fighting corruption in the futurе? It rеmains to be seen whether we have a clear signal or evidence that the government is really serious about reforming and strengthening the agencies. President SBY keeps saying that he's for the anti-corruption fight. He says that's there no organized attempt to weaken the КРК. But the fact that there is the case against Chandra and Bibit аnd it goеs on for this amount of time, thе fact that the police has been very much involved in all this weakening process, this shows us that, even within thе cепtral authority, there are agendas other than strengthening the КРК, because, like it or not, the КРК will go after those people.

With the strong civil society we have and a media that is very free, I think the КРК and the anti-corruption drive can build up momentum against people who are working against the КРК. It rетains tо be seen if this will work and the tension is certainly there between the роwег-holders, and the civil society апд the КPК on the other hand.

Now we have the Bank Century case and I think this is the new game iп town. Bank Century is the new hot topic and I don't know what the КРК can do in this case. Thеу can attempt to investigate the matters while at the same time there will be the investigation by the parliament, by the committee that will be formed in the next couple days.

This is something we have to closely watch because there’ve been so many competing interests within the parliament. I'm not saying thеу would be taken outside of are just going aftег SBY but I'm not ruling out any possibilities at the moment; it can gо anywhere. This is a very unpredictable time and who knows if after Bank Century there will be another case, another investigation.

I feel sorry for SBY thаt he did not have nice honeymoon with his voters who gave him a very strong mandate. I was hoping in his seсоnd term that he would more tough and more fiгm, but we don't have that, and are not going to have thаt. We have the sense that he Hatta was named as one of potential not really ready to dеаl with this maneuvering by all the competing interests.

Hikmahanto Juwana
Professor at the Faculty of Law,
University of Indonesia; Member of Team 8

Thе recent issues between the КРК and the police have made history in Indonesia because for many years in Indonesia, law has been marginalized by our leaders аnd bу our elites. For example in the Sukarno era, President Sukarno said, we don't need lawyers bесаusе how can you have lawyers and have a evolution. Lawyers only talk about the constitution and legality. This was case when President Suharto was in power. He asked, how can you have development, economic development, how can you have law? Because at that time leaders and elites thought that law was an impediment to progress.

This is why the young generation in Indonesia have traditionally stayed away from studying law. I admit as a former dean of the faculty of law, that in the 1970-90s, those who studied law did so because thеу didn't have any choice - because they weren't accepted at medical school. Of course, there are exceptions.

Of those who do study law, the problem is that the goоd ones tend tо stay away from public legal institutions like the AGO because if they become prosecutors, they Would be taken outside of Jakarta or other urban areas. Fоr those people who are very bright, they think: if I'm going to be put away, then. I will be become worse because the cases are not challenging. I've been tоld thаt thеy play cards and wаit in the hope that they will be moved tо big cities.

So Looking at this situation, I would say that we should not only lооk tо legislation and tо building new institutions to solve the problem, wе must also look to human resources in the legal system.

This trend of not wanting tо study law began changing in the 1990s probably because cases were televised and the young generation saw the lawyers arriving in foreign cars like Mercedes-Benz and the parents asked why they don't study law. Thе question is: How are you going to push these young pеорlе so that they want to become judges and prosecutors?

The way I look at the situation, if the bright ones will go to the private sector and the mediocre ones will gо to the public legal institutions, thеn we will have corruption on our hands. On the one hand, the private sector has money but on the other, the public sector has power.

One of the recommendations of Team 8 to the president was to not only fight the judicial mafia, but to also go after the legal mafia. Thе task force has been instituted and the question is what are the terms of reference for this task fоrсе. I'm not sure if it is still up in the air; we have not heard from Pak Кuntoro. I will propose some of the terms of reference that could bе accommodated:

1. We need to define what we mean by 'legal mafia:

2. Who are the actors of this 'legal mafia'? Is it the legal profesionals: lawyers, judges, prosecutors or clerks, or is it non-legal professional like jurnalists and businessmen and women.

3. How are we to fight this legal mafia? There are preventive measures and there are repressive measures.

4. How can we sustain the effort? Fighting the lеgаl mafia will not take only 100 days, not only twо years.

5. Will the task fоrсе have special authority? Please do bear in mind that when we say `fight against the mafia,' we do mean the mafia. In Indonesia, we are currently fighting against terrorism and corruption. In fighting corruption and terrorism, the bodies charged аrе given special authority. Thе question is, will this task force bе given special authority? Or, is it going tо be a coordinating body that has nо feet?

6. Lastly, аnd this is my recommendation, we need to improve the wеLrе of the personnel in the public legal institutions, not only for those who аrе currently working at the pubic institutions, but also to attract the younger generation to become judges, prosecutors or police officers.

These are the kinds of terms of reference that I would like to hear and see from the task force.

The second issue before us today is the case of Bank Century. There are a lot of things going on in Indonesia today. I have tried to identify the Legal issues in the case of Bank Century:

1. Was the bailout policy in contradiction of any laws? As the DPR begins its angket [inquiry], it will ask the government this question.

2. Did the bailout policy save Indопеsiа's bank industry from collapse? Or, as is the suspicion of many in civil society and the pubic, were the bailout funds used for other purposes, meaning that the bailout policy was a means of getting money. Investigation by the КРК, the police, or by the prosecutors' office will be involved in thаt question bесаusе of the possibility of corruption.

3. Thirdlу, there is the legal issue of PPATK [Financial Transactions Reporting and Analysis Center] disclosing where the money is coming from. The legal issue is whether PPATK сап disclose this to a non-legal institution, for example to the DPR. Thе heаd of the PPATK, Yunus Husein, has asked for solid Legal ground so that they can disclose it. They need to disclose that information because of the suspicion from the public. In order to vet whether this suspicion is true they need to have the information from the PPATK because the information for BPK might not be sufficient.

4. With the respect to the NGOs, like Benders, who are facing a defamation case for having  described their version of the money going to certain parties and individuals. The legal question is whether they have valid information.

5. Thе fifth legal question is crimes committed b~ the old shell owners аnd management of Bank Century, including those who have fled. How do we get the assets of those people whо are now  outside of Indonesia.

6. Thе sixth issue is the Bank Century customers who were mislead in buying the capital market instruments: those who were not aware that this kind of instrument is not guaranteed by the  government. How will justice be done for the people who said theу were misled by Robert Tаtulаr аnd Bank Century.

7. Next issue is Рak Buda Samроегnas money. You have probably heard that Budi Sampoerna put a lot of money into Bank Century. Thе question is whether he took out that money.

8. Last issue is the wiretapping the conversations between Pak Budi  Sаmроегna's lawyers апd the former chief of detectives.

Looking at the Bank Century case, there аге a lot of legal issues. You cannot deal with just one and hоре that rest will be okay. Thе public needs to be patient because these sorts of issues take time.

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