October, 04 2006 @ 08:19 amCourt Overturns Munir Murder Conviction
By Roy Tupai
Pollycarpus Budihari Priyanto, the Garuda Indonesia pilot sentenced to 14 years in jail for the murder of the country's foremost human rights campaigner, Munir, has had his murder conviction annulled by the Supreme Court.
The Supreme Court on Tuesday (3/10/06) ruled there had been insufficient evidence to convict Pollycarpus for the murder. However, the court upheld the pilot's conviction for falsifying documents, for which he received a two-year jail sentence. The court did not announce its decision until Wednesday.
Munir, who founded the Commission for Missing Persons and Victims of Violence (Kontras) and the Indonesian Human Rights Monitor (Imparsial), was regarded as the country’s most courageous human rights activist, fearlessly exposing the crimes of the government and military. His work earned him many enemies in the corridors of power, especially in military and state intelligence agencies. He was killed by arsenic poisoning on the night of September 6, 2004, while on a Garuda flight from Jakarta to Singapore to Amsterdam. He was 38 years old and had received numerous death threats.
Central Jakarta District Court in December 2005 found Pollycarpus guilty of adding a lethal dose of arsenic to Munir's inflight meal of fried noodles and carrying forged travel documents. The court largely ignored findings by a now-defunct fact finding team that Munir's murder was plotted by members of the State Intelligence Agency (BIN) in a conspiracy that also involved senior Garuda officials. The court said Pollycarpus killed Munir because he disliked his politics. But the judges acknowledged the murder was also due to a conspiracy and called on police to conduct a thorough investigation to find the masterminds of the crime. Police have so far failed to do so.
Rights activists accuse the police and President Susilo Bambang Yudhoyono of lacking the courage and integrity to expose the BIN officials who allegedly orchestrated the murder. BIN, which has long been used for political repression in its former incarnations, has always denied any involvement. Some activists claim there is a cover-up that goes all the way to the top. They point out that Yudhoyono is a retired general and may therefore be unwilling to risk upsetting other powerful former generals, especially if he needs their support in the run-up to the 2009 election, when he could possibly be challenged by his deputy Jusuf Kalla.
The quashing of Pollycarpus' conviction will no doubt be an embarrassment to Yudhoyono, who was asked about progress in the Munir investigation during a meeting last month with European Commission President José Manuel Barroso. Yudhoyono said the government was serious about resolving the case in a just and professional manner. He also said National Police chief General Sutanto had promised to order a "revitalization" of the police team investigating the murder.
Jakarta High Court had upheld Central Jakarta District Court's conviction of Pollycarpus, but there had been rumors the Supreme Court would overturn the verdict as part of a deal to ensure the pilot would not name those who allegedly ordered him to kill Munir. Rights groups have repeatedly said that Pollycarpus is a BIN operative. During his trial, Central Jakarta District Court heard evidence that 41 calls were placed between the cellular phones of Pollycarpus and former BIN deputy chief Muchdi Purwopranjono in the weeks surrounding Munir’s murder. Several other calls were found to have been made between the pilot’s phone and Muchdi’s private office phone. Muchdi, who was involved in the kidnapping and torture of pro-democracy activists during the final years of the Suharto regime, denied having ever telephoned Pollycarpus. He brazenly claimed his cell phone was often used by his driver or his aides. He vehemently denied ordering the assassination of Munir and threatened to sue those who linked him to the case.
Pollycarpus has denied being a BIN operative. He claimed he was on assignment for Garuda as an aviation security officer for the Jakarta-Singapore leg of Munir's flight. He has admitted giving his business class seat to the activist. His assignment letter was a fake, created after he returned from Singapore.
The Supreme Court's ruling was made by a panel of three judges led by Iskandar Kamil. He is the same judge who in August rejected appeals by four Australians sentenced to life imprisonment for attempted heroin smuggling and instead gave them the death penalty. Clear enough, murder the country's top human rights activist and get two years in jail. Attempt to smuggle heroin and get executed.
Kamil said Pollycarpus could not be convicted of murder because the prosecution had failed to present any witnesses who saw or heard him plot or carry out the killing. He said there was only clear proof that Pollycarpus had used a falsified letter to fly to Singapore without the authority of PT Garuda Indonesia. "The primary charge of premeditated murder was not proved, as there were definitely no facts, no witnesses. The secondary charge, falsification of documents, was proved. He is sentenced to two years in prison," he was quoted as saying by detikcom online news portal.
He said the previous rulings by Central Jakarta District Court and Jakarta High Court had to be overturned because there was no supporting evidence that Pollycarpus planned the murder. "We canceled the verdicts of the district court and high court because there are no facts, no proof and no indications that prove the primary charge."
Kamil insisted the Supreme Court's ruling was entirely independent and based purely on "judicial technicalities" without any other considerations. He also said the Supreme Court's ruling does not include the lower court's recommendation that police re-open their investigation into Munir's murder.
The Supreme Court said Pollycarpus had only been proven guilty of violating the Criminal Code's Article 263, section 2, on the falsification of documents. The article states that anyone who falsifies a document or uses a document they know to be falsified faces a maximum penalty of six years in jail. Kontras has provided details of Central Jakarta District Court's ruling on this matter, which notes that Garuda's former vice president for corporate security, Ramelgia Anwar, made the falsified letter of assignment that enabled Pollycarpus to join Munir on Flight GA-974 from Jakarta to Singapore. The court acknowledged the assignment letter was actually made after Pollycarpus had returned from Singapore, but Anwar has never been declared a suspect.
Two people who were declared suspects but never put on trial are Garuda senior flight attendant Yeti Susmiarti and aircraft galley worker Oedi Irianto. Susmiarti served Munir the poisoned food, while Irianto was responsible for the handling of meals. Central Jakarta District Court said the pair knew Pollycarpus and might have collaborated with him in the murder.
The two other judges on the Supreme Court panel were Atja Sondjaya and Artidjo Alkostar. Alkostar issued a dissenting opinion, saying he felt the murder charge was proved and Pollycarpus should therefore be sentenced to life imprisonment, as had been recommended by the prosecution.
"In my opinion, I accept the public prosecutor's appeal to the Supreme Court and reject the appeal by the defendant's lawyers," he was quoted as saying by the Media Indonesia daily's online edition.
He said he agreed with Central Jakarta District Court's reasoning that there were indications that Pollycarpus was guilty of murder. "Although there were no direct witnesses, the indications were clear. I agree with the legal reasoning of Central Jakarta District Court that there was a connection between the death of Munir and the defendant's actions," he said.
"One indication was that the defendant telephoned Munir several times. Later, this person who was not assigned to the flight still boarded the aircraft and offered his seat to Munir. This is really too much," he added.
Kamil commented only briefly on his colleague's objection to the verdict. "There was a dissenting opinion from Mr Artidjo Alkostar. He did not agree. According to him, the elements of the premeditated murder were fulfilled," he said.
Alkostar's dissenting opinion was hardly surprising, as he is non-career judge, having previously served a lecturer in law at Yogyakarta's Islamic University and as director of the Legal Aid Foundation (LBH) in Yogyakarta. In 2005, he led a Supreme Court panel of judges that upheld former Aceh governor Abdullah Puteh's 10-year jail sentence for corruption. Two years ago, he declared Indonesian officers were responsible for gross human rights violations in East Timor, but his ruling was only a dissenting opinion. In August 2000, he said the planned trial of Suharto would become the yardstick by which the country's law enforcement and judiciary would be measured. That trial never happened because Suharto's lawyers successfully argued he was ill. In 2001, Alkostar was on a panel of judges that threw out a lawsuit that sought to dissolve Suharto's former political vehicle, Golkar Party. He said he personally wanted Golkar dissolved but lacked evidence to do so.
Alkostar, who has a master's degree in international human rights law, does not have a completely unblemished reputation. In 2001, he was on a panel of judges that lifted Suharto's city arrest status and said the former dictator should not stand trial until healthy. He was on a list of 13 “rogue judges” leaked to the press by the Judicial Commission. He has opposed a proposal by Imparsial to drop charges against minor defendants in human rights abuse cases if they testify against their superiors. In January 2006, he was on a panel of judges that reinstated Australian drug smuggler Schapelle Corby’s original 20-year jail sentence after it had earlier been reduced to 15 years - which should have taught Australian drug smugglers not to appeal to the Supreme Court.
Kontras coordinator Usman Hamid said the Supreme Court's ruling on Pollycarpus proves the state is powerless to unmask the masterminds of Munir's murder, because at present, no one has been brought to justice for the crime and police do not have any suspects. "This decision shows the powerlessness of the country to expose the conspirators behind Munir's murder. This also certainly shows that the perpetrators are very powerful people who so far cannot be touched by the law. They have a political network and control the [police] investigator's agency and the judiciary in Indonesia," he was quoted as saying by the Kompas
daily's online edition.
He said the ruling underscores the urgent need for the "revitalization process" mentioned by Yudhoyono to be immediately put into action so that a new fact finding team can be formed to investigate the murder. He said the new investigation team must have strong political support. "Don't make it like the [original] fact finding team, which lacked the authority to penetrate the political obstacles in BIN," he said.
The first fact finding team was disbanded in June 2005 and its report has never been released to the public.
Hamid said he was not surprised by the exoneration of Pollycarpus because the police investigation into the murder was rushed and had failed to heed the fact finding team's recommendations. Furthermore, he added, material evidence was not presented during the pilot's trial. He said Kontras is considering forwarding the case to the Human Rights Court due to extraordinary legal hindrances in the regular courts. "For us, the Munir case is not just a normal criminal murder but must also be seen as a murder that was carried out systematically, involving officials from intelligence and the airline," he said.
Munir's widow Suciwati said she was very disappointed by the Supreme court's decision. "This hurts my sense of justice and I am very disappointed with the decision," she said, adding it would make no sense if Pollycarpus had merely forged his travel assignment without an ulterior motive. She said the Supreme Court should see the connection between the forged document and her husband's murder.
"The falsification of the letter could not be separated from the killing. This cannot be seen piece by piece, she said.
"I am very sad. I want to say something else. I feel as if life in this country is full of illusions. When will justice be delivered in this country?" she asked. Suciwati said she would ask for a copy of the court's ruling and have it examined by experts.
The Indonesian Legal Aid Institute Foundation (YLBHI) said it would examine the ruling to determine whether the Supreme Court had implemented the law correctly. YLBHI chairman Patra M. Zen said his office would invite legal practitioners to study the decision and assess whether it was proper. He said the ruling ignored the public's sense of justice. "It also ignores the sense of justice of Munir's family," he added
Zen urged the Attorney General's Office to continue with legal efforts to resolve the murder. "The public prosecutor must seek a judicial review of the decision... as Pollycarpus was involved in Munir's death."
Pilot's Lawyers Pleased
Adnan Wirawan, a member of Pollycarpus' defense team, said he was happy his client had been acquitted. "He is released from being accused as the murderer of Mr Munir, to poison Mr Munir - he is free from that," he was quoted as saying by Voice of America News.
He denied Pollycarpus was guilty of forging his assignment letter. "Of course I'm happy that the sentence is reduced, but he's still being [found] guilty of something that he never did, which is forging a letter," he said.
Wirawan added that Pollycarpus is likely be released within four months, as he has already served most of his two-year sentence.
Mohammad Assegaf, another lawyer of Pollycarpus, also welcomed the overturning of the murder conviction. But he said the remaining two-year sentence for falsification of documents was illogical. "I question why the Supreme Court believes Polly was guilty of using a fake letter so as to be sentenced to two years. Why would Polly use a fake letter? That's illogical," he was quoted as saying by detikcom.
He said the Supreme Court apparently felt forced to give his client some form of punishment after after quashing his murder conviction. "I have been certain since the beginning that Polly was not proved guilty of murder or using a fake letter," said the lawyer, whose other clients include Suharto and radical cleric Abu Bakar Baasyir.
Assegaf stopped short of saying he would file for a judicial review in an effort to have the two-year sentence overturned. "I must confer with my client first because he has not yet been informed. It's possible we could pursue the legal avenue by requesting a judicial review. But I cannot personally take such a decision now, I must discuss it first with Polly."
National Police Chief Sutanto said he is determined to continue pursuing Munir's killers and will form a new investigation team - in line with instructions from the president - but he claimed the team would face extreme difficulties. He expressed hope that Pollycarpus would provide police with information - a rather daft hope given that Pollycarpus is now officially off the hook and will not want to incriminate himself.
"Certainly we will look for the perpetrators. Later we will ask Pollycarpus to help, hopefully he will cooperate with the police. Yes, we will request his information, if there are new developments and he wants to share information," said Sutanto.
He said the new investigation team would follow up all results of the previous investigation and pursue any new developments. "Certainly all efforts will be made to uncover [the perpetrators]. We are increasing the number of skilled investigators, re-examining the available findings, looking for new evidence and witnesses, and cooperating with more sides, including the Netherlands, so we are striving to obtain more complete information," he asserted.
Sutanto said police need more information from various sides because they have faced several stumbling blocks. And what are those stumbling blocks? Fear of BIN? Callous indifference to the murder of a human rights activist? No, according to Sutanto, one of the main stumbling blocks is the fact that the crime scene was on an aircraft and it was first inspected in the Netherlands. "The crime scene was inside an aircraft. Actually, the crime scene is vital for success in solving a case, like the Bali bombings, the Marriott bombing or wherever else. Our weakness is there. Here we must hope for testimonies and information from other sides," he said.
The police chief said Yudhoyono is expecting swift results. "He and others want this [murder case] solved. But the level of difficulty is very high. So we ask for help from various sides," he said.
Presidential spokesman Andi Mallarangeng confirmed that Yudhoyono wants action. "The president wants a greater effort. The president wants the case completely solved," he was quoted as saying by detikcom.
He said Yudhoyono entrusts all aspects of the new investigation entirely to the National Police, including “the formation of the rejuvenated investigation team and efforts related to the investigation process".
Attorney General Abdul Rahman Saleh declined to comment on the Supreme Court's ruling, saying he was yet to read the court documents.
If the case is to be solved, it may take another Munir to unravel the conspiracy and reveal the culprits.
By: Roy Tupai | Category: Law