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06 September 2000
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HR/00/62
6 September 2000
UN RIGHTS EXPERT ISSUES VIEWS ON SUHARTO TRIAL
The following statement was issued by the Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Dato' Param Cumaraswamy:
“The United Nations Special Rapporteur on the independence of judges and lawyers attended the South Jakarta District Court on 31 August 2000 to observe the opening of the trial of Mr. Suharto, the former President of Indonesia, on charges of corruption during his chairmanship of several charitable foundations while in office as President of the Republic.
The Special Rapporteur was invited to attend and observe the trial by the Government of Indonesia through its Attorney General. The Special Rapporteur's interest in the trial stems from the principle that leaders of governments should not enjoy any form of impunity from investigation and prosecution for crimes alleged to be committed by them while in office. When
prosecuted they should be tried before an independent and impartial tribunal applying the standards for a fair trial recognized under international law.
On 31 August 2000 when the Court, composed of five judges presided by Judge Lalu Mariyun, sat at 10.00 a.m. with the team of public prosecutors and defence lawyers present, Mr. Suharto failed to appear. The Court then heard arguments from counsel for Mr. Suharto as to why the former President was not present in Court. The Court was informed that Mr. Suharto was medically unfit to appear in Court and go through the process of a trial. To this extent the Court had before it three medical reports, the last of which was a report on an examination conducted on Mr. Suharto at 6.00 a.m. on 31 August 2000.
The Court was further informed that no less than thirty-one doctors had examined Mr. Suharto, including a team of eight from a particular hospital at the request of the office of the Attorney General.
In response to the defence's contention, the public prosecutor called for a second independent medical examination on Mr. Suharto.
The Court, after hearing further arguments from both the counsel for the defence and the public prosecutor, decided to adjourn the hearing to 14 September 2000 to hear oral medical evidence on the issue of Mr. Suharto's fitness to appear and stand trial.
The Special Rapporteur met the defence counsel and the public prosecutors involved in this trial and had discussions with them. In the afternoon of August 31, the Special Rapporteur met Mr. Suharto at his residence at Jalan Cendana in the presence of some of his counsel and doctors. The following day on 1 September, the Special Rapporteur called on President Abdurrahman Wahid at his residence. Present at this meeting were the Minister of Foreign Affairs, Mr. Alwi Shihab, and the Attorney General, Dr. Marzuki Darusman.
The Special Rapporteur was supplied with the set of medical reports presented in Court and has studied them. He also learnt that the third stroke Mr. Suharto suffered about a year ago resulted in some brain damage. It was alleged that he was susceptible to a fourth stroke.
Though Indonesia has not ratified the International Covenant on Civil and Political Rights, the provisions in that Covenant relating to a fair trial are to some extent embodied in the Indonesian domestic law. The essence of a fair trial is that the tribunal should be independent and impartial. Among the minimum guarantees of a fair trial relevant to the present issue before the court are:
I) that the accused be informed promptly and in detail in a language which the accused understands of the nature and cause of the charge against him;
ii) that the accused be tried in his presence and to defend himself in person or through legal assistance of his own choosing;
iii) that the accused examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
It therefore follows that what is fundamental to a fair trial, in addition to an independent and impartial tribunal, is that the accused person should be mentally capable of following the trial proceedings, able to instruct his lawyers and be able to give coherent evidence.
The medical reports presented to the Court while setting out the medical history and the present medical condition of Mr. Suharto, who is 79 years old, give no indication in clear terms that Mr. Suharto is either physically or mentally unfit to stand trial. It is this gap in the medical reports which must have lead the Court to adjourn proceedings to enable it to examine the doctors orally. The Court in the circumstances cannot be faulted for adopting such a procedure. Throughout the short proceedings the presiding Judge appeared firm but fair.
With regard to the dispute over Mr. Suharto's medical condition to stand trial, a similar situation arose in the United Kingdom earlier this year in the case of 84-year-old Senator Pinochet, the former Chilean President, with regard to proceedings to extradite him to Spain to stand trial for the crime of torture. The Chilean Government produced medical reports to the Secretary of State for Home Affairs of the United Kingdom to the effect that Senator Pinochet's health had deteriorated and that he might not be fit to stand trial on those charges. The Secretary of State did not find those medical reports conclusive. He therefore, with the consent of Senator Pinochet, sought an independent team of medical experts appointed by the Secretary of State to examine Senator Pinochet and render a comprehensive report on the state of his health.
According to the statement of the Secretary of State for Home Affairs made to the House of Commons on 2 March 2000, the panel of doctors were instructed, among others, in particular to advise the Secretary of State "whether, in their view, there were any aspects of Senator Pinochet's state of health which, separately or together, suggested that he was not then fit, or may likely become unfit to stand trial in Spain." The medical team were told that the Secretary of State "was particularly interested in Senator Pinochet's ability to follow a line of questioning, to recall events, some of which took place as long as the 1970's, and to give coherent evidence." "The medical team was also asked to advise the Secretary of State whether Senator Pinochet could be feigning any of his symptoms." The medical team was however not expected, in reaching its conclusions, to take responsibility for the legal test of fitness for trial. That was left to the Secretary of State.
The conclusion of the medical team in its report indicated that Senator Pinochet would not be mentally capable of meaningful participation in a trial. "In coming to its conclusion the medical team was obliged to make assumptions about what kind of participation in a criminal trial would in law be regarded as `meaningful' in determining the fitness of an accused."
This approach and methodology adopted and applied in the United Kingdom very recently in the high profile case of Senator Pinochet may be a useful and helpful precedent to follow in resolving the current issue before the South Jakarta Court on whether Mr. Suharto is physically and/or mentally unfit to stand trial.”
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6 September 2000
UN RIGHTS EXPERT ISSUES VIEWS ON SUHARTO TRIAL
The following statement was issued by the Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Dato' Param Cumaraswamy:
“The United Nations Special Rapporteur on the independence of judges and lawyers attended the South Jakarta District Court on 31 August 2000 to observe the opening of the trial of Mr. Suharto, the former President of Indonesia, on charges of corruption during his chairmanship of several charitable foundations while in office as President of the Republic.
The Special Rapporteur was invited to attend and observe the trial by the Government of Indonesia through its Attorney General. The Special Rapporteur's interest in the trial stems from the principle that leaders of governments should not enjoy any form of impunity from investigation and prosecution for crimes alleged to be committed by them while in office. When
prosecuted they should be tried before an independent and impartial tribunal applying the standards for a fair trial recognized under international law.
On 31 August 2000 when the Court, composed of five judges presided by Judge Lalu Mariyun, sat at 10.00 a.m. with the team of public prosecutors and defence lawyers present, Mr. Suharto failed to appear. The Court then heard arguments from counsel for Mr. Suharto as to why the former President was not present in Court. The Court was informed that Mr. Suharto was medically unfit to appear in Court and go through the process of a trial. To this extent the Court had before it three medical reports, the last of which was a report on an examination conducted on Mr. Suharto at 6.00 a.m. on 31 August 2000.
The Court was further informed that no less than thirty-one doctors had examined Mr. Suharto, including a team of eight from a particular hospital at the request of the office of the Attorney General.
In response to the defence's contention, the public prosecutor called for a second independent medical examination on Mr. Suharto.
The Court, after hearing further arguments from both the counsel for the defence and the public prosecutor, decided to adjourn the hearing to 14 September 2000 to hear oral medical evidence on the issue of Mr. Suharto's fitness to appear and stand trial.
The Special Rapporteur met the defence counsel and the public prosecutors involved in this trial and had discussions with them. In the afternoon of August 31, the Special Rapporteur met Mr. Suharto at his residence at Jalan Cendana in the presence of some of his counsel and doctors. The following day on 1 September, the Special Rapporteur called on President Abdurrahman Wahid at his residence. Present at this meeting were the Minister of Foreign Affairs, Mr. Alwi Shihab, and the Attorney General, Dr. Marzuki Darusman.
The Special Rapporteur was supplied with the set of medical reports presented in Court and has studied them. He also learnt that the third stroke Mr. Suharto suffered about a year ago resulted in some brain damage. It was alleged that he was susceptible to a fourth stroke.
Though Indonesia has not ratified the International Covenant on Civil and Political Rights, the provisions in that Covenant relating to a fair trial are to some extent embodied in the Indonesian domestic law. The essence of a fair trial is that the tribunal should be independent and impartial. Among the minimum guarantees of a fair trial relevant to the present issue before the court are:
I) that the accused be informed promptly and in detail in a language which the accused understands of the nature and cause of the charge against him;
ii) that the accused be tried in his presence and to defend himself in person or through legal assistance of his own choosing;
iii) that the accused examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
It therefore follows that what is fundamental to a fair trial, in addition to an independent and impartial tribunal, is that the accused person should be mentally capable of following the trial proceedings, able to instruct his lawyers and be able to give coherent evidence.
The medical reports presented to the Court while setting out the medical history and the present medical condition of Mr. Suharto, who is 79 years old, give no indication in clear terms that Mr. Suharto is either physically or mentally unfit to stand trial. It is this gap in the medical reports which must have lead the Court to adjourn proceedings to enable it to examine the doctors orally. The Court in the circumstances cannot be faulted for adopting such a procedure. Throughout the short proceedings the presiding Judge appeared firm but fair.
With regard to the dispute over Mr. Suharto's medical condition to stand trial, a similar situation arose in the United Kingdom earlier this year in the case of 84-year-old Senator Pinochet, the former Chilean President, with regard to proceedings to extradite him to Spain to stand trial for the crime of torture. The Chilean Government produced medical reports to the Secretary of State for Home Affairs of the United Kingdom to the effect that Senator Pinochet's health had deteriorated and that he might not be fit to stand trial on those charges. The Secretary of State did not find those medical reports conclusive. He therefore, with the consent of Senator Pinochet, sought an independent team of medical experts appointed by the Secretary of State to examine Senator Pinochet and render a comprehensive report on the state of his health.
According to the statement of the Secretary of State for Home Affairs made to the House of Commons on 2 March 2000, the panel of doctors were instructed, among others, in particular to advise the Secretary of State "whether, in their view, there were any aspects of Senator Pinochet's state of health which, separately or together, suggested that he was not then fit, or may likely become unfit to stand trial in Spain." The medical team were told that the Secretary of State "was particularly interested in Senator Pinochet's ability to follow a line of questioning, to recall events, some of which took place as long as the 1970's, and to give coherent evidence." "The medical team was also asked to advise the Secretary of State whether Senator Pinochet could be feigning any of his symptoms." The medical team was however not expected, in reaching its conclusions, to take responsibility for the legal test of fitness for trial. That was left to the Secretary of State.
The conclusion of the medical team in its report indicated that Senator Pinochet would not be mentally capable of meaningful participation in a trial. "In coming to its conclusion the medical team was obliged to make assumptions about what kind of participation in a criminal trial would in law be regarded as `meaningful' in determining the fitness of an accused."
This approach and methodology adopted and applied in the United Kingdom very recently in the high profile case of Senator Pinochet may be a useful and helpful precedent to follow in resolving the current issue before the South Jakarta Court on whether Mr. Suharto is physically and/or mentally unfit to stand trial.”
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