The In-Absentia Trial for Suharto

It was only a short while ago that SBY decided along with the Attorney General not to prosecute Suharto and terminate the prosecution of graft charges against the former, invalid president. But it seems a go-getting judge ordered the AGO to reopen the case.

It appears the court determined that the AGO's decision did not comply with Article 140, Paragraph 2, of the Indonesian Code of Criminal Procedure and rejected the prosecutors argument that Suharto's illness can be a basis for terminating the prosecution.

The court further stated that the prosecutor may drop a case only if the same case had been decided before, if the suspect dies, if the case exceeds the statute of limitation or if the matter is settled out of court. None of these situations applies.

The question of an in-absentia trial was not resolved in the decision issued by Judge Nganro. The court only ordered that Suharto's graft prosecution be reopened after Suharto recovered from his illness. This keeps the case stuck on the question of doctors and medical tests and judgments - all of which are viewed with considerable scepticism by the public which wants to see justice and the resolution of the case.

An in-absentia trial would end all the wrangling over whether Suharto is really sick or not. His doctors could all go home.
The International Covenant on Civil and Political Rights, ratified by Indonesia in September last year and cited by the AGO as one of its bases for terminating Suharto's prosecution, states that in the determination of any criminal charge against him everyone shall be entitled to be tried in his presence.

Those who reject trials in absentia argue that the presence of the accused gives the court an opportunity to get a personal impression of the defendant and to hear any statements he or she wishes to make. They question the value of a conviction and sentence if the person concerned is absent or the judgment cannot be enforced because the defendant is abroad.

Those favouring trials in absentia argue that waiting until the defendant can appear in court may allow the statute of limitations to run out before the justice process can be completed. There is also the need to carry out justice while the evidence is still available.

Relying on a narrow interpretation of the rules for holding in-absentia trials both the attorney-general and the supreme court chief justice argued that Suharto's situation did not qualify since an in-absentia trial applied when the suspect was physically absent to flout the law as in fleeing abroad.

But Indonesian law has a strong legal basis for conducting an in-absentia trial on corruption charges. The 1999 Law on Corruption Eradication allows for such a trial and there are precedents for it.

Sufficient bases exist both in Indonesian legal precedent and in international human rights conventions to try Suharto in absentia. If the government is seriously committed to fighting corruption and upholding the principle of equality before the law, the trial of Suharto must commence without further delay.