´Shelving´ Criminal Cases for Public Interest

Sunday, 13 March 2016 , 10:00:00 WIB - Opinions

The Junior Attorney General for General Crimes Director, Agung Noor Rohmat (left), is presenting a deponering letter to former KPK Chairman, Abraham Samad (second from right) at the headquarters of the Attorney General´s Office (AGO), Jakarta, Friday (4/3). (ANTARA)

By: DR. A’an Efendi, SH., MH. *)

The criminal case involving two former Corruption Eradication Commission (KPK) Chairman, Abraham Samad and Bambang Widjojanto, has been closed, not with the hammer of a judge, but with an instruction from Attorney General HM Prasetyo, who decided to ‘shelve’ the case through a deponering policy.

Yes, the Attorney General has used his authority to shelve the case based on Article 35 letter c of Law No.6/2004 on the Attorney General’s Office (AGO). Attorney General HM Prasetyo explained that the policy was issued for the interest of the public. He further detailed that a conviction against Samad and Bambang would affect the people’s spirit in eradicating corruption.

It is little wonder that some people are unhappy with the decision. Some even plan to take the matter to the court of law as they fear that the AGO would issue ‘a series of deponering policy’, which would give the law enforcement in the country a negative precedent.

In general, there are two contrasting principles in filing criminal charges: the legality principle and the opportunity principle. The first principle does not give any room for prosecutors to end a case. In other words, there is only one solution and that is the court of law.

Meanwhile, the second principle gives prosecutors the choice of continuing their charges or to stop the prosecution for the public’s interest.

But what is public interest? The only clue available is in Article 35 letter c of Law No.6/2004 on the Attorney General’s Office (AGO), which states public interest is the interest of the nation and state and/or the interest of the general public.

The definition that was supposed to enlighten people has instead created a problem: the interpretation of the interest of the nation and the general public as the embodiment of the general interest is fully left to the Attorney General.

Aristoteles once said the public interest is the common interest while Aquinas said it is the common good. John Locke described it as the public good of people. David Hume: the public good, Madison: general good and Rousseau: the common good. Utilitarianism views it as the application of distributive justice in order to inequalities in the first place.

Communicative action says it is a tool to achieve just society. The public interest is the result of rational communication in which the rational parties can achieve understanding and agreement on the interpretation of public interest.

The definition of public interest has been stipulated in numerous laws, mentioned by public officials, judges in their ruling, and discussed by academics. Still, there is no clarity about what definition of public interest is. This has been acknowledged by Leslie A. Pal and Judith Maxwell (2004), who said that regulatory authorities typically justify their decisions in terms of the 'public interest', but the term is difficult to define.

From the standpoint of administrative law, the Law on Prosecutors gives a discretionary power to the Attorney General to define the meaning of public interest to disregard a criminal case based on its own discretion. Therefore, there is open opportunity for the Attorney General to abuse his authority. Measuring public interest is difficult. Hence, the presence of an institution and mechanism to test the Attorney General’s decision to issue a deponering policy has become conditio sine quanon, or essential.

People who feel aggrieved by the deponering policy must file a lawsuit. If the judges rule that the policy was not issued for the public interest, the criminal cases involving Samad and Bambang must be resumed.

* The author is a lecturer in Constitutional Law from Jember University