By : Febry Indra Gunawan Sitorus

Preliminary

Juliari Batubara, his name has now become the attention of the Indonesian people. Juliari is a defendant in a corruption case who is also a former social minister. Apart from the fact that Juliari was accused of committing a criminal act of corruption, what made it even more a topic of discussion was the request for acquittal during the pledoi that was read in response to the demands of the KPK Prosecutor. Discussions related to Juliari became crowded on social media to become the number one trending topic. As a reminder, Juliari was sentenced to 11 years in prison and a fine of Rp. 500 million, subsidiary to 6 months in prison, because he is believed to have received bribes of Rp. 32.4 billion related to Covid-19 social assistance at the Ministry of Social Affairs. Juliari was also demanded to pay a replacement fee of Rp 14.5 billion and his political right to be elected was revoked for 4 years. Juliari was charged with Article 12 letter b in conjunction with Article 18 of the Republic of Indonesia Law Number 31 of 1999 in conjunction with Article 55 paragraph (1) of the 1st Criminal Code in conjunction with Article 64 paragraph (1) of the Criminal Code.

Juliari’s request to be released by the Panel of Judges received a reactive response from the community. Many people who use social media (warganet) give a negative response. This free request became monthly and even made jokes and laughs. Not a few who give verbal attacks.

Responding to this, Juliari’s lawyer, Maqdir Ismail, also retaliated against the netizens’ attacks. Maqdir explained that what his client said was the truth based on the facts of the trial. Maqdir also said that the legal team had presented a defense with written evidence.

According to Maqdir, netizens have acted unfairly for criticizing Juliari Batubara without knowing the facts of the trial. The criticisms made by netizens, said Maqdir, were not very objective. Juliari asked the panel of judges who tried his case to release him from charges and demands related to the Corona social assistance case. Juliari regrets causing trouble to many people because of this case.

Defending Paradigm in Court

The trial as a legitimate mechanism in resolving legal issues is an official instrument provided by the State. In the trial process, whether civil, state administration or criminal justice guarantees the freedom for the parties to postulate anything according to their interests. In fact, each litigating party is guaranteed to have an equal opportunity in presenting arguments and evidence in court (audi et alteram partem). In criminal procedural law, for example, the defendant has the right as a defendant which is guaranteed by the Criminal Procedure Code. For example, the right to be accompanied by legal counsel, the right not to answer questions, the right to present a defense, etc.

In the criminal trial process, in practice almost all defendants exercise the right to file a defense. Almost all of the defendants always presented a defense in their favor. Because this is the mechanism of criminal proceedings. The prosecutor is charged with proving to prove that the defendant is proven guilty while on the other hand the defendant will always rebut the prosecutor’s arguments. Why then did the defendants always file a defense regardless of whether the final verdict was guilty or acquitted or acquitted? Instinctively, humans will always try to be free, not bound. From the point of view of criminology, every criminal will always try to escape from all charges.

The defense paradigm in this trial is an interesting concern to be explored. Because this really depends on the technique/method of defense presented by the Legal Counsel/Defendant. This is a very decisive step on how the defense strategy will be used. It’s still warm in our memories, when Otto Hasibuan resigned as the Legal Counsel for Setya Novanto, Former Chairman of the Indonesian House of Representatives. In his explanation, Otto said that the reason for his resignation was because there was no agreement between Otto Hasibuan and the client (Setya Novanto) regarding the defense procedure/strategy to be taken. This illustrates that every lawyer has different procedures and techniques in defending clients. I can understand that the resignation of Otto Hasibuan has many meanings, including giving a message that legal counsel should be the leader in the defense process and not vice versa, lawyers can be “dictated” by the client regarding the defense procedure to be taken. This is not the first time Otto has resigned as a legal advisor, it is recorded that Otto has resigned several times as a lawyer who incidentally is a “Giant Client”, for example the case of Akil Mochtar, Djoko Tjandra, etc. This illustrates that lawyers should act as leaders.

Returning to the Juliari case, the defendant’s request to be released (Juliari) is part of the defense strategy. Is such a defense against the law? Certainly not. This request for release is a matter of course in practice and does not conflict with any law. In the history of the practice of enforcing corruption in Indonesia, almost no defendant has admitted to his actions, except for the defendant who acts as a “Justice Collaborator”. Because it’s part of the defense strategy. In fact, this is the right of the defendant guaranteed by the Criminal Procedure Code to file a defense against him. Defendants and lawyers are given the freedom and flexibility to present arguments and evidence that can mitigate (a de charge). This is a legal process and is guaranteed in the Criminal Procedure Code. On the other hand, the Public Prosecutor is given the burden of proving the indicted charges and is given a balanced opportunity to provide evidence against the accused (a charge).

Sense of Community Justice & Corruption as Extra Ordinary Crime

The negative public response to Juliari’s free request is understandable from the perspective of the community’s sense of justice and the atmosphere of resistance to corruption. Indonesian people are routinely presented with the spectacle of how many public officials are involved and even become the main actors in the occurrence of criminal acts of corruption. Apart from this, it is against the law but also deeply hurts the feelings and hearts of the wider community. Especially in the Juliari case, the alleged crime was related to the corruption of social assistance funds. If this is proven, it is very ironic! Because it is very disturbing humanity. But on the other hand, it must also be understood that this process is still in the pledoi stage, so that no court decision has yet decided whether or not to be guilty. So it must return to the principle of presumption of innocence.

The sense of community justice is closely related to legal politics which places corruption as an extraordinary crime. Indonesia through the Anti-Corruption Law, in a general explanation explains that corruption is an extraordinary crime that requires extraordinary enforcement. Community placement. However, it must be admitted that many responses are not in accordance with the facts and are not in accordance with the rails. For example, quoting Juliari’s lawyer, Maqdir Ismail, who said that netizens had been unfair because they criticized Juliari without knowing the facts of the trial. The criticisms made by netizens, said Maqdir, were not very objective. Maqdir Ismail’s anxiety is very understandable because the criticisms conveyed are of course not all based on the facts of the trial. Of course, not all people who criticize follow and understand the facts of the trial. However, criticism emerged just by citing articles highlighted by the media without understanding the facts of the trial. So this causes distortion of the facts of the trial. On the one hand, technically, this defense is detrimental to the legal advisory team because the media and some of the public are trying to direct and conduct a trial by mob.

Phenomena like this have become a new trend in Indonesia, that for some cases there have been trial by mob efforts. Of course this can be understood as part of the effect of openness and ease of obtaining information. Without any special conditions, everyone who has a smartphone can easily access information. With the information obtained, everyone has the opportunity to express their opinion on an issue in the public sphere. Social media is a very easy place to create and access. On the one hand, it has a positive impact because it is part of the freedom of expression and opinion as guaranteed by the Constitution. On the other hand, it often brings a new kind of phenomenon that actually turns public spaces into areas that are not so healthy. Even though smartphones should be used smartly.

Freedom of expression that is realized through freedom of comment and opinion is often not based on facts and analysis that can be accounted for. Throwing stones and hiding hands, I guess. Many people (even the media) throw issues but are not responsible for managing the issues that are thrown so that it becomes a wild ball that is not controlled. Many people do not have the capacity to comment but make comments on the grounds of freedom of expression. Of course, freedom of expression is a right that we must fight for and defend but the real freedom of opinion is an opinion that has a basis, be it data or scientific analysis based on science. For example, Prof. Yusril Ihza Mahendra once mentioned that nowadays “there are many professors whose expertise is fattening chickens but talking about state administration, talking about the constitution”. A statement that seems funny but is very relevant and factual. Of course, the anxiety of Prof. Yusril is very factual and relevant as well as a reminder that freedom of expression should be based on a strong basis that can be accounted for.

This paper is not also intended to discredit freedom of opinion, but to encourage us to speak according to the knowledge and knowledge that we have. It is fine when such opinions are conveyed by ordinary people, but it is very unfortunate when educated people with irrelevant scientific disciplines present legal arguments which clearly show mistakes. And the most unfortunate, when people who study law actually make comments that are not in accordance with the law, conspiratorial, prejudice, emotional and far from the rule of law.