PEPERANGAN HUKUM DALAM DEMOCRACY

Democracy is a government based on the rule of law, not the rule of man.

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Keeping the spirit of check and balance between “Cicak vs. Buaya”

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The recent arrest of 2 prominent members of KPK; Mr. Bibit S. Rianto and Mr. Chandra M. Hamzah, has created many political debates and protests toward the government, especially, toward President SBY for his unwillingness to intervene the matter. He further had a press conference to address the issue publicly and to explain his stand on the issue. I wish he does that with other critical issues, such as Indonesia massive foreign and domestic debts.

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What so great about Democracy government is the establishment of open competition amongst the members of the branches of government and other institutions within the government affair to do what is just and fair under the rule of law and not under the rule of man.

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The recent arrest by POLRI of 2 prominent members of KPK; Mr. Bibit S. Rianto and Mr. Chandra M. Hamzah, was an example of check and balance that shall be upheld under democratic government with one condition that any arrest of citizen by POLRI, a probable cause must first be established and an arrest warrant must be obtained from the Court. So, the arrest has to be an order from the Court and it is not in itself the power of POLRI, or KPK or other Judiciaries.

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Once an arrest warrant is obtained from the Court, POLRI has every legal ground uphold the rule of law by arresting those individuals regardless who they are. The job of POLRI here should be to uphold the rule of law by executing the Court’s orders either arrest warrants or, collection of evidents and investigations.

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Those Judiciaries such as: KPK, POLRI, Office for the Counsel of Prosecution (Kejaksaan) and other Judiciaries have to present and establish a probable cause first before the Judge to obtain such an arrest warrant. The Judge then will have to determine whether such a request of arrest warrant is warranted or not.

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So, once an arrest warrant is issued by the Court, the responsibility of the arrest lies on the shoulder of the Judge and not those who execute the order, in this case POLRI. The arrest warrant of citizen has been and will always be a Court order. If the people at large disagree with the arrest, then their disagreements shall be directed to those who issue the order, which is the Judge. The people will have to challenge the Judge in the Court and prove why the Judge’s oder of arrest warrant is wrong or unlawful.

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This has been judicial process in the democratic countries. It is also critical that the arrest of any citizen and the subsequent court proceedings to follow have to be in compliance with due process to respect individual’s rights under the law and constitution.

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The next critical action that must be followed is that under Constitution, Habeas Corpus, Declaration of Human Rights and other International documents require that once a person is detained or arrested by an authority, within 3 days after the arrest takes place, the charge (s) must be submitted in the Court of law against that person.

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No entity shall be allowed to arrest any citizen longer than 3 days without any charge being submitted in the Court of law. If after 3 days no charge (s) being submitted against that person under the Court of law, that person must be released.

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The problem in Indonesia is the fact that it takes so long to submit the charges against individuals who are being arrested, often times the charges are bogus, made up and those Judges are supposed to work independently go along issuing an arrest warrant because of the pressures from other branch of Government, Religious Organizations, Public Demands, other political reasons and simply bribery. The arrest warrant shall be strictly issued based on the establishment of a probable cause and evidence under the rule of law.

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The second problem in Indonesia is the fact that for the last 3 decades or more, the Indonesian Judicial System is so broken and so corrupt. People do not have any confidence whatsoever with the judicial system there. Double that with corrupt Police Department and is still ranked number # 1 as being the most corrupt institution in Indonesia based on the latest edition of the Transparency International Indonesia (TII) perception of corruption survey done in 2007. So, what can the people expect from such broken and corrupt entities? Justice? It’s a joke.

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That is why, it is understandable when the Indonesian people react decisively to defend these 2 individuals who have been working in an institution that is proven to be working excellently to combat the massive corruption called: KPK (Komisi Pemberantasan Korupsi).

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Under the Court of law, POLRI shall be limited to present evidences, write tickets, undertake further investigations and execute Court’s orders. No citizen shall be arrested and no property shall be taken away by POLRI without any Court’s order. These are basic human rights and individual sovereignty that must be upheld under the rule of law in a democratic government. POLRI shall never be allowed to make any settlement on the street even as small as traffic violations. That is the job of the Judges at the Judicial System to judge any matters in the Court of law.

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In the recent arrest members of KPK; Mr. Bibit S. Rianto and Mr. Chandra M. Hamzah, POLRI through designated Judiciary (Kejaksaan) has an obligation to submit the charge (s) against Mr. Bibit S. Rianto and Mr. Chandra M. Hamzah 3 days after the arrest took place in the Court of law. This is the due process that must be followed. The Court then will have to decide whether these individuals guilty or not. If they are, the will go to jail and if not, they will have to be set free.

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In that court proceeding is the time for both parties to present the case and even to challenge Judge’s order of issuing an arrest warrant. This is the critical components in the establishment of justice and due process in a democratic government under the rule of law and not under the rule of man. So, mounting public pressures and demands can not and shall not be used to justify to release or the arrest of any individuals. Why? That will be a violation the rule of law. That is a reflection of the rule of man.

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What would happen then with the rule of law when such a massive public demand has to prevail and be allowed to prevail? The job of the government and the law enforcements are to defend and uphold the rule of law despite these massive public pressures for the shake of establishing the rule of law in a society and not the rule of man.

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The release or arrest of individual has to be based on the rule of law and not public pressure. This shall be kept in mind to avoid further political chaos and disaster in the future. The Judge has to undertake his role and responsibilities to uphold the law with clarity firmly, justly and decisively.

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The action by President SBY not to intervene or to get involved in this matter is correct. This issue belongs to judicial system of Government and the Executive Branch shall stay away from it.

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The allegation toward the government that there is an attempt to marginalize the power of KPK are yet to be proven in the Court of law, and so the charges used against these 2 individuals. It is the job of the judicial system to uncover the plot. If it is proven to be true, then it is the job of the Court to bring those people who involved in the plot to be held accountable under rule of law. This is a judicial process and this process belongs to judicial system. The people will have to wait and see before any judgments are made.

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The action by President SBY to immediately appoint the replacement of these two individuals to undertake their tasks at KPK in their absence due to this arrest is also correct.

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In a nutshell, President SBY action was not done with the intention to marginalize the power of KPK, but it is to continue the work of KPK and to maintain check and balance between KPK and POLRI. Secondly, President SBY’s actions show and demonstrate being President of the country he is in charge at the Executive Branch of Government, not Legislative or Judicative and that no one shall be above the law including members of KPK.

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Now that the arrest have taken place, POLRI through the Office for Counsel of Prosecution (Kejaksaan) has to submit the charge (s) against these individuals and the accused’s lawyers have to present the line of defend. It is now within the judicial system of government to decide the matter whether these individuals guilty or not.

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For the last 3 decades or more under regime of ORDE-BARU, we have seen the corrupt Police Department and these public sentiments toward POLRI are not going away even in this era of reformation. I can understand the DISTRUST of the Indonesian people toward the POLRI because POLRI even until today has not-yet demonstrate their ability to be CORRUPT-FREE institution.

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Further more, KPK being a much smaller entity has proven their excellence works to hunt down those corruptors across the board and has generated excellence results compared to POLRI that have much bigger personnel. Those achievements deserve a credit in itself and the jobs as well as the people who have demonstrated their ability to combat corruption must be defended against those who are trying to marginalize their power to do the job. It makes sense and understandable.

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However, human beings are still human beings with their weakness that is prone to making mistakes and drawn into worldly temptations. It does not mean that those distinguished members of KPK, POLRI or members of other JUDICIARIES who are courageously working hard to combat corruption are free from committing corruptions and mistakes. Now that an allegation has been raised and an arrest warrant has been issued by the Court, we may have to let the court proceeding to take place and see what the outcome is and how the due process is taken.

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The people, members of Parliament and other Government bodies can express their voices and show supports to any of these entities that are now in competition in the Court of law. However, the President and members of Parliament can not influence or intervene against those people who are now working with the case at the judicial system. The subsequent actions shall be taken after the court proceeding took place and judgment is rendered by the Court.

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If the court’s decision deems to be unfair, unjust, not in the best interest of the country as a whole and to avoid further chaos and national instability in the country, members of Parliament as a whole shall have the right to vacate or nullify the Court’s decision with ¾ members of Parliament in favor. That is why in a Democratic government, there shall be no branch of Government that has an absolute power, such as Makamah Konstitusi. These 3 branches of Government must be co-equal and co-interdependence. This is the fundamental formula of Democratic government that can not be manipulated, altered or bargained to make Democracy works at best.

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The positive side with this situation occurred in Indonesia is that I strongly believe that now members of KPK and members of POLRI will continue to compete and this competition in itself will establish check and balance between the two government entities. When government entities are striving for goodness in healthy competition, the people get the benefits. This is the spirit of check and balance that shall be upheld. This is good and healthy.

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With a notion that everyone is innocent until proven guilty under the Court of law, the people will have to wait and see what kind of case and evident POLRI have against Mr. Bibit S. Rianto and Mr. Chandra M. Hamzah. We will also see what kind of defend these 2 individuals have in the Court of law. Again, Democracy is a government based on the rule of law, and not the rule of man. The Court has the role to judge and not the people at large, with one condition and expectation that the court will uphold their job and responsibility to be just and corrupt-free.

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This case should be a guiding example for those commissions or other public oversight agencies in Indonesia to undertake public-oversight role to establish transparency, check and balance for other government’s bodies and institutions. When businesses or government institutions compete, people get benefits. This kind of competition shall be established more in Indonesia.

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Indonesia needs to have PUBLIC OVERSIGHT BOARD across the level of government entities which consist of NGO’s, Independent Observers and volunteers from across walk of life who have the knowledge and expertise on the subject and get rid of many of those paid commissions established during the era of reformation that do not work and only wasting National Budget (APBN) Funds to oversee the work of the government entities, including but not limited to the following offices that have been reported and presumed publicly being the most distrusted and corrupted institutions in Indonesia:

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1.* Police Department
2.* Customs and Excise
3.* Immigration Office
4.* Traffic & Roads Authority (DLLAJR)
5.* City Government
6.* Land Department
7. * Port Authority (Pelindo)
8. * Courts
9. * Justice & Human Rights Department
10. * Airport Authority (Angkasa Pura)
11. * Regional tax offices
12. * Health Department (Depkes)
13. * Food & Drug Department (BPOM)
14. * Religious Council (Majelis Ulama Indonesia (MUI)
15. * KPK
16. * KPU
17. * All BUMN (Badan Usaha Milik Negara)
18. * Parliament / House of Representatives
19. * Political Parties
20. * Registry & Permit Services
21. * Tax Authorities and Tax Offices
22. * Business & Private Sector
23. * All Utility Companies
24. * Military
25. * Education System
26. * Non-Government Offices (NGO’s)
27. * Medical Services
28. * Media
29. * Religious Bodies
30. * All Offices of Cabinet Ministers

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This public-oversight role toward the works of Government should be the job of members of Parliament (legislative) and the Indonesia Media at large. Since both entities are still lacking in accepting and executing this critical role, the people themselves either as individual or community based organizations or NGO’s will have to undertake this public oversight role by creating public oversight board that is recognized by the government and shall be regulated under the law that have a significant power.

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Indonesia has too many layers of government already and these layers of government make the administration process complicated, ineffective and inefficient besides draining much of the National Budget (APBN) funds. Remember in 2008 under SBY’s administration, the central government spent 77.88% of overall total revenue (APBN). That is a lot of spending by a single entity! So, the action taken to fix the corrupt and broken entities shall be taken in such a way not to add more layers or, get rid of those people who have made the institution broken and distrusted and replace with new people. If they can not be trusted and incapable of doing their jobs, it only makes sense to fire them.

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In the absence of trust toward the members of Parliament and Media at large to oversee the works of the government, the people will have to oversee directly the works of the government, agencies, representatives, elected officials and other departments that they have created.

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This process will retain the people’s ability to control over the instruments that they have created through process of general election, selection, referendum or appointment. This reflects the very spirit of Democracy as government of the people, by the people and for the people.

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Pengurus

Partai Masa Depan Indonesia Mandiri (PARMADIM)

www.parmadim.com