Known as the 'grand daddy of judges', M. Yahya Harahap, 82, is no ordinary judge. This former Supreme Court justice is known as a scholar and the author of books on law. His tomes are not only required reading for law students; they have become the reference books for all judges throughout Indonesia. One of his more well-known books looks at beneficiaries, under the long title of Analyzing Cases and Application of the Criminal Code, Investigations in Court Trials, Appeals, Cassation and Reviews.
On the case which released Sudjiono Timan, the Judicial Commission turned to Yahya for clarification. Last week, the Judicial Commission summoned Yahya to explain how the judges granted Sudjiono's appeal. Yahya agreed to be interviewed by Tempo reporter Maria Rita last Friday. Excerpts:
What do you think of the decision to review Sudjiono Timan's case?
There has been negligence in the Supreme Court on the way the case review was handled. The Court should have referred to Supreme Court Circular (SEMA) No. 6/1988, which should not open the door to a review unless it is submitted by the accused himself. The beneficiaries have the right to appeal for a case review only when the accused is undergoing his sentence, whereas Sudjiono never complied with the law. This is negligence.
What is the understanding of beneficiaries in your book, in the context of appealing for a case review, in the instance of criminal cases?
Beneficiary here should not be understood in the context of civil or inheritance law. In the book I wrote in 1985, and which has been applied by many parties, beneficiary means purely in the biological sense. This is a formal requirement on who has the right, and who can obtain a case review; who has the capacity to submit the appeal, i.e. meaning the accused or their beneficiary. I used the rationale that beneficiaries are more capable of considering the fate of the accused. As an accused, one can have lost hope and do all manner of untoward things.
Is there any legal basis for a beneficiary to submit an appeal for a case review while the accused is a fugitive?
In my book, the requirement must be that the accused is obeisant to the law. If the accused does not follow the law, the beneficiary has no right to submit and appeal for a case review. If the accused escapes, he is not in obeisance to the law. And his beneficiary cannot make the appeal.
Your opinion in the book was used as reference by Sudjiono Timan's wife to appeal for a case review. Did she misread what you meant?
All are welcome to use my book because I wrote it for the public. Some people use it as doctrine, but I only ask that it be used properly. And if the intention is to use it, to take it in its entirety. If the accused flees, is he abiding by the law? No. He is thumbing his nose at the law. The right to make legal appeals is reserved only to those who obey the law. And that is found in SEMA No. 6/1988.
But hasn't that clause been withdrawn, replaced with SEMA No. 1/2012, which states that beneficiaries can appeal for a case review?
I hadn't known it was withdrawn. Things are getting worse and worse. I explained this to the Judicial Commission yesterday. I was summoned to clarify the issue about the meaning of the term 'beneficiary' in that book. I said that yes, this is where the Supreme Court has been negligent. SEMA No. 6/1988 says that the accused in absentia cannot submit any legal appeals, cassations or case reviews. But then the Judicial Commission said that SEMA had been withdrawn and amended.
And what are your thoughts about that?
I told the Judicial Commission that the withdrawal of the SEMA 1988 was very suspicious indeed.
Has this SEMA ever been made as a case in point?
When I represented the government in the Century case against Rifat (Rifat Ali Rizvi, former owner of Bank Century who is a fugitive today Ed.) and his Australian lawyer, one topic of debate, which I defended to the death, was SEMA No. 6/1988. Rifat had no right to appeal for a case review because he was a fugitive. That is not a human rights violation, as cited by Rifat's Australian lawyer. In this case, it's the Indonesian people's basic law that is being breached. It's a matter of principle.
What was the context for its withdrawal? Weren't you then a justice in the Supreme Court?
I was a judge from 1982 to 2000. At the time, corruptors tended to flee. Then their lawyers started to submit all kinds of appeals. The state courts opened the possibility for attorneys to submit any legal appeal, whether cassation or case reviews, but the accused was in absentia, had run away. This is clearly making fun of the courts.
So, what do you think led to the SEMA 2012?
Nose-thumbing, making fun of the judiciary will increase, just like before there was SEMA 1988.
So what should be done now?
SEMA No. 1/2012 must be dissolved, taken to the plenary. This is absolutely urgent. SEMA 1988 was drawn up to prevent a big thing: abuse and derision, not only towards the judiciary, but towards the people of Indonesia. (*)
