Asep Rahmat Fajar, Director, Indonesian Legal Roundtable
In the Indonesian organization of the state, which is regulated in the constitution, the Supreme Court and related bodies have functions of judicial authority (article 24, paragraph 1). Pursuant to the Law on Judicial Authority, the other bodies comprise of the police, prosecutor and other courts (article 41, Law No. 4, 2004). In the Law on the Attorney General’s Office, it is also stipulated that the Prosecution Office is a governmental body that implements state authority in the prosecution sector (article 2, paragraph 1, Law No. 16, 2004).
Based on the above laws, the prosecution office is a governmental body having a judicative function. It is the only body with the authority to determine whether an alleged criminal action can be prosecuted or not. Even though currently there is a Corruption Eradication Commission that can also conduct prosecutions, in effect this work is also being done through the prosecutor’s office, because the prosecutors at the Corruption Eradication Commission are recruited from the prosecutor’s office to assist the commission within a certain period of time.
Prosecutor’s office and prosecution system
The implementation of state authority over prosecutions is carried out via the Attorney General situated in the national capital, a high prosecutor’s office in the capital city of each province and the district prosecutor’s office situated at the district level (articles 3 and 4, Law No. 16, 2004). Pursuant to the applicable laws, the prosecutor’s office must be free to carry out its tasks independent from any political or other influence, be it from the executive or legislative bodies or other state authorities.
The prosecutor’s office has wide functions and authorities as:
1. General prosecutor,
2. Investigator of specific criminal actions,
Paper prepared for the Fourth Asian Human Rights Consultation on the Asian Charter of Rule of Law, on the theme of prosecution systems in Asia, held in Hong Kong from 17 to 21 November 2008.
3. Representative of the state in civil and administrative cases,
4. Advisor to government agencies on questions of law, and,
5. Representative of the public interest
Structurally, a prosecutor is responsible to the prosecutor who in the hierarchy constitutes his or her direct supervisor. So, prosecutors at the district prosecutor’s office are responsible to the head of the district, the head is responsible to the head of the high prosecutor’s office and that head is responsible to the attorney general (article 8, paragraph 2 and article 18, paragraph 1, Law No. 16, 2004).
Based on the laws in Indonesia, a general prosecution is an act to render a criminal case before the relevant district court based on the procedures as stipulated in the applicable laws, accompanied with a request that the case be investigated and decided by a judge in a court. In the prosecution office, the general prosecutor has authority to:
1. Accept and verify the case investigation documents from the investigator and/or supporting investigator,
2. Hold a pre-prosecution inquiry in the event that there is a flaw in the investigation process, by giving directions in order to correct the investigation,
3. Order or extend detention, and/or change the status of a detainee after the case is handed over by the investigator,
4. Draft the accusation letter,
5. Hand over the case to the court,
6. Give notice to the accused of the day and time the case will be put on trial, accompanied by an invitation letter to the accused and to witnesses to attend the trial,
7. Conduct prosecution in court,
8. Close a case in the public interest,
9. Take any other action within the responsibilities and authority of a general prosecutor, and,
10. Execute the court judgment
(article 17, paragraph 2, Law No. 4, 2004).
Pursuant to the applicable laws, a prosecutor as an investigator generally has authority to:
1. Accept a report from a person on the occurrence of a criminal act,
2. Take first action at the site of the crime,
3. Conduct capture, detention, search and seizure operations,
4. Prepare letters of investigation and seizure,
5. Invite any person to be heard and investigated as a suspect
6. Invite an expert to assist with the investigation,
7. Stop the investigation, and,
8. Take any other actions based on the prevailing laws.
Problems of the prosecution and upholding of
Since the reform period, there has been major development in the human rights field in Indonesia. Based on the normative guarantees of the constitution, it is clear that the goal is to have a law-based country that guarantees and protects human rights and a state that wants to realize welfare and social justice. Apart from the constitution, in 2005 the commitment to protect human rights was enhanced by the ratification of the two basic covenants on human rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (via Law Nos. 11 & 12, 2005).
However, there are still specific matters pertaining to prosecution that need attention. This is because regulations are still weak, so the settlement of human rights cases is impeded, by, for example:
1. A back and forth of documents being submitted between the National Human Rights Commission and the attorney general,
2. The attorney general’s refusal to investigate human rights violations that happened in the past, and,
3. Authority to recommend the formation of ad hoc human rights courts being vested in parliament.
Apart from problems with regulations, the enforcement of law and upholding of human rights are still impeded by the resistance of actors at each step. These actors are not only the parties who are suspected of having violated the law but also the law- enforcement officers who take advantage of the current system. Another impediment is public pressure on law-enforcement and human rights institutions based on ideology or orders from parties involved in cases.
Lastly, but also importantly, a major problem in prosecuting human rights cases arises from the internal problems of the prosecutor’s office, be they organizational, technical or human resource-related. In certain cases (processed by the Corruption Eradication Commission) prosecutors have been proven to have bought and sold cases or received bribes from parties. In fact, according to the 2007 survey of Transparency International (Indonesia) the courts and prosecutors are the most corrupt bodies as they actively ask for money. Apart from that, the head of the Supreme Court has criticized the quality of the accusation letters fielded by certain prosecutors containing weaknesses and incomplete data, causing suspects to go free, especially in drugs and corruption cases. In one case where a prosecutor incorrectly referred to the law in preparing the accusation, causing two murder suspects to be freed under an interim judgment, members of the public demonstrated at the prosecutor’s office and—unable to control their emotions—ruined parts of the building. Prosecutors drafting accusation letters and preparing for trial also often suffer interference from their superiors. The head of a high prosecutor’s office in a region may put some pressure on a general prosecutor to change the manner of conducting the case so that it will run contrary to fairness and the prevailing laws.
These problems are exacerbated by certain other factors that feature in all law-enforcement bodies, including the prosecutor’s office. These include:
1. Low integrity, little understanding of the practice of law, and little practical experience in carrying out trial. Therefore, serious attention must be paid to both the quality and quantity of prosecutors. Currently, their number is not proportional to the number of cases that they must handle, which contributes to these difficulties.
2. Lack of coordination between management and lower officers, causing inconsistency between the heads of district prosecutor’s offices and high prosecutor’s offices in applying policy, especially in corruption and drug cases.
3. Lack of coordination between prosecutors and police during investigation and prosecution. Misunderstandings in conducting their duties commonly result in a back and forth of the case documents with mistakes that are not immediately obvious, particularly in the investigation of corruption cases.
4. Problems in executing the judgment, caused by differences in perception between the judge and prosecutor, especially in the wording of the judgment.
Structural problems associated with the prosecution include the following:
1. Currently, there is a dilemma concerning the position of the prosecutor’s office in the structure of the state. Pursuant to the Law on the Prosecutor’s Office, the office is a government body that acts for the state authorities in the prosecution. This position will not become a problem only if in carrying out duties a prosecutor acts independently and does not suffer government interference.
2. The Law on the Prosecutor’s Office does not elaborate on qualifications to become a prosecutor at successive levels, other than the base requirements. As a result, the qualification requirements for the attorney general and other senior prosecutors are low. The mechanism to elect the attorney general and deputy attorney general is not transparent or accountable and has few participants. The process is closed and falls under the authority of the executive, i.e. the president.
3. The promotion and transfer system in the prosecutor’s office has not succeeded in pushing prosecutors with high credibility and integrity into management positions in the office.
4. Recruitment of prosecutors is potentially affected by nepotism, collusion and corruption. Prosecutors hold administrative positions even though they don’t have professional expertise and are needed for prosecution activities.
5. The supervision system is not good enough to make objective appraisals of prosecutor integrity and quality.
Reform and recommendations
To date certain reforms have been announced and some implemented to restore public faith in the work of law- enforcement bodies, including the prosecutor’s office. These were initiated with the statement of the President of the Republic of Indonesia in commemorating the agenda of the First 100 Days of the Indonesian Bersatu Cabinet, which in its chapter on Building a Fair and Democratic Indonesia, stipulated that
Law enforcement must be made by any state which is willing to build a fair and democratic atmosphere. In Indonesia, certain efforts to have such atmosphere have been conducted through various means, especially by enhancing the courts institutions. It is believed that the enhancement of the court institutions will bring continuous effect which correlates to the law enforcement and development in other sectors, such as economy. Logically, the trading and the investment will not be developed if there is no certainty in the law enforcement.
In this regard, Presidential Instruction No. 5/2004 on the Acceleration of Corruption Eradication stipulated the following objectives:
1. To optimize investigation and prosecution efforts against criminal acts of corruption and impose sanctions against the responsible parties, and save state monies,
2. To prevent misuse of authority and impose clear sanctions, conducted by the general prosecutor/law-enforcement prosecutor,
3. To enhance cooperation between the State Police of the Republic of Indonesia, Development and Money Supervisory Agency, Money Transaction Analysis and Reporting Center and state institutions related to law enforcement, and mitigation of state losses resulting from criminal acts of corruption.
With regards to the above, the Attorney General’s Office prepared certain programs in 2004-2005, so as to:
1. Introduce the basics for reform of the system and the internal mechanism of the prosecutor’s office to enhance the outcomes of its work,
2. Conduct recruitment, promotion, and transfer of prosecutors based on objective criteria and the activities of the relevant officers (to diminish, put pressure on and eliminate nepotism, collusion and corruption in the above activities),
3. Enhance coordination with other law-enforcement bodies in accelerating the handling of corruption cases and other specific criminal acts,
4. Ensure that in the corruption cases, especially those that cause losses to the state and obtain public interest, the process is accelerated, from investigation to prosecution and from prosecution to trial,
5. To review the SP3s (Letters of Order to Stop Investigation) in corruption cases done prior to the existence of the Indonesia Bersatu Cabinet.
Apart from the above, 12 reform programs were launched in 2005 in the following areas:
1. Reform of the Organization and Work Procedure of the Prosecutor’s Office
2. Reform of the Organization and Work Procedure of the
3. Reform of the Prosecutor Recruitment System
4. Reform of the Prosecutor Education and Training System
5. Reform of the Prosecutor Career Development System
6. Preparation of the Minimum Standard of Prosecutor Utilities
7. Review and Development of the Budgetary System of the Prosecutor’s Office
8. Budget Increase for the Handling of Cases related to Corruption, Human Rights, Terrorism, Money Laundering and Stealing of Sea and Forest Wealth
9. Increase of the Functional Benefit for Prosecutors
10. Development of Information Management System in Handling Cases
11. Enhancement of Cooperation between the Relevant Institutions in the Law Enforcement of Cases Having a Public Interest
12. Development of a Controlling System that is Transparent and Accountable
The six directives of the Attorney General’s Office concerning a reform program announced on 12 July 2007 represent an important base for bureaucratic reform within the office. The six define reform programs in the areas of recruitment, education and training, minimum professional standards, career advancement, business practice, code of conduct and supervision mechanisms. Bureaucratic reform is the main avenue for the office to comprehensively improve its work at an organizational level, and includes but is not limited to improvements in the reward system and officers’ welfare that should enable the prosecutors to perform their duties with high integrity, accountability and dignity.
According to the deputy attorney general at the launch of the reforms on 18 September 2008, they aim to:
1. Recover public trust in the Attorney General’s Office and improve the public prosecution’s image as a law-enforcement institution with high levels of professionalism and integrity,
2. Enable public access to information on corruption-related criminal cases and other cases that the office handles,
3. Increase the amount of money returned to the state treasury, derived from savings and penalties,
4. Increase remuneration for public prosecutors and staff of the office,
5. Decrease the number of individuals generating a negative public perception towards the office,
6. Improve the quality of service to the public, and,
7. Develop a standard operating procedure with some breakthroughs regarding the case-handling process, but still in accordance with existing laws.
There are also several important issues that will become subjects of policy in the future that will have a positive effect on the prosecutor office, which are:
1. In order to avoid conflicts of interest and misuse of the prosecutor’s office by the executive, the office should remains part of the government, but to guarantee its independence the attorney general must be nominated and appointed by the president with the approval of the House of Representatives, and in conducting prosecution duties, prosecutors must be independent.
Good and strict criteria to determine the person that will become the attorney general and deputy must be drawn up so that these posts are filled with persons of high credibility and accountability. The mechanism to elect the attorney general must also be open, transparent and accountable, so that the public will be aware and involved and can give input on the credibility and integrity of the prospective attorney general. In addition to that, an independent team will give input to the president and receive input from the public on the candidates, through which nominations also will be able to be made.
2. Prosecutors should not fill administrative positions. Administrative professionals must be recruited for these posts and the capacity of the current administrative officers must be enhanced.
3. Parties outside the prosecutor’s office must be involved in the recruitment process, such as persons from the universities who can assess potential and ensure that academic results will be the basis for recruitment. Other than that, recruitment must be conducted transparently and disclosed openly, supported by a good integrated computerized system so as to diminish the intensity of meetings between the prospective party and office.
4. The examination of the accusation and prosecution must be conducted in a more effective way.