Jul 16, 2018 Last Updated 3:31 AM, Jul 10, 2018

The one that got away?

The one that got away?

Tim Lindsey and Jemma Parsons

   Muchti on the left

Murder trials are always dramatic and often unpredictable, and one that looks likely to be both is the high-profile case of Muchdi Purwopranjono, former Deputy Director of BIN (Indonesia’s state intelligence agency) and former Commander of the Indonesian Army’s Special Forces (Kopassus).

Muchdi is currently on trial for the 2004 murder of Munir Said Thalib, one of Indonesia’s most outspoken human rights activists and a well-known civil rights lawyer. The latest developments in what has been a protracted murder investigation have rocked the foundations of the prosecution’s case, diminishing hopes of a conviction.

Muchdi is charged with pre-meditated murder under article 340 of Indonesia’s Criminal Code (KUHP), which fixes a maximum sentence of death, life in prison or a jail term of up to 20 years. The formal elements of the crime that must be proven by the prosecution in addition to the killing itself are intent and premeditation. Failure to provide evidence of these elements should result in an acquittal.

The prosecution’s case is that Muchdi masterminded a murder plot that was actually carried out by Pollycarpus Priyanto, a ‘corporate security’ officer covertly assigned to Munir’s flight from Jakarta to Amsterdam by the national intelligence agency, BIN. It was possible to do so with the connivance of the former head of Garuda Airlines, Indra Setiawan, who is now serving a year-long jail sentence for his involvement in the murder. Pollycarpus is also now in jail, serving a 20-year jail sentence for the pre-meditated murder after Indonesian courts found he laced Munir’s orange juice with arsenic, causing him to die an agonising death mid-flight, not long after a brief stopover in Singapore.

Muchdi, the prosecution alleged, was dismissed from his former powerful position as Kopassus Commander after an investigation led by Munir

Pollycarpus and Indra, however, are widely seen as pawns in a game controlled by more powerful players. Enter Muchdi, who the prosecution argues had a clear motive to kill Munir. Muchdi, the prosecution alleged, was dismissed from his former powerful position as Kopassus Commander after an investigation led by Munir in his role as member of the Commission for Missing Persons and Victims of Violence (KONTRAS) revealed Muchdi’s involvement in the disappearance of 13 anti-government activists in 1997 and 1998. Muchdi had been head of Kopassus for only 52 days when he was sacked.

But these claims started looking shaky when two senior TNI officers testified. Ex-Military Police Chief Major General Djasri Marin and retired Colonel Mochtar Zein gave evidence that the military court that tried the case of the abducted activists did find 11 Kopassus soldiers guilty, but all were members of a special Kopassus contingent known as the ‘Rose Team’ (Tim Mawar). The so-called Rose Team was part of Kopassus ‘Group 4’, the Special Forces division widely believed to have been responsible for the murder and intimidation of influential and outspoken critics of Suharto in the final years of his administration. According to Marin and Zein, Muchdi was not one of the Rose Team members investigated, and his name never even came up in the investigation.

Establishing motive

While a demonstrable motive is not essential for a conviction, if the prosecution alleges a motive then they must prove it, claimed Muchdi’s defence team. Indonesian criminal law expert, Indiato Seno Aji, testified in support of this proposition.

The prosecution’s response was to present an official Ministry of Defence statement on the 1997-98 abductions case, available on the Ministry’s website. This clearly states that Muchdi, along with Group 4 Colonel Chairawan, was, in fact, dismissed from his post because of the abductions. The two men were removed due to their ‘inability to control their subordinates’. Also sanctioned in relation to the abductions according to the document was Prabowo Subianto, former Kopassus Lieutenant General and ex-son-in-law of former President Suharto, who was ‘retired’ as a result of the finding.

This document obviously had potential to re-establish the prosecution’s allegations that Muchdi was motivated to order Munir’s murder by a desire to seek revenge against him for losing his position at Kopassus, but the judges did not allow the document to be submitted as evidence. The exact reason for this is unclear. Some media reports claimed that it was because the document had not been included in the prosecution’s original case file. Others claimed it was because the document constituted electronic data, which, they said, should not be used to prosecute someone because it is inherently subjective and biased and is, in any case, not formally acceptable as evidence under Indonesia’s Criminal Code.

So what other hard evidence admissible in court is there that Muchdi possessed both the intent, and a pre-meditated plan, to have Munir killed? Unfortunately for the prosecution, not much. Thus far, all witnesses for the prosecution have either failed to materialise, or have revoked testimonies given in the earlier trials of Indra Setiawan or Pollycarpus Priyanto. Five have even retracted statements they provided to police during initial investigations.

What other hard evidence admissible in court is there that Muchdi possessed both the intent, and a pre-meditated plan, to have Munir killed?

Budi Santoso, a former staffer of Muchdi and intended star witness for the prosecution, told detectives during the initial murder investigation that Muchdi had indeed ordered Polycarpus to kill Munir, and that Pollycarpus had told him so. But despite the 14 summonses sent to Budi calling him to give evidence in court during Muchdi’s trial, he has not appeared. Instead he sent a letter dated 13 September 2008, in which he revoked statements made in the course of police questioning between October 2007 and March 2008.

Budi is now said to be stationed as an intelligence officer at the Indonesian embassy in Afghanistan after a recent transfer from Pakistan, encouraging gossip that he may have struck a deal to stay silent and out of reach. Whatever the reason, in the end the court had to be satisfied with the prosecution simply reading out Budi's orginal statement.

Several other witnesses for the prosecution, many of them BIN officials like Budi, have also backed away from their earlier testimonies or police statements. Some have failed to recall ever making their recorded statements. Others claim to have been pressured during questioning.

Struggling with the evidence

With no witnesses remaining who will testify that Muchdi intended to have Munir killed and plotted to do so, and with the prosecution’s motive theory now severely compromised by the exclusion of the Ministry of Defence document, what other evidence can prosecutors turn to? The only other significant evidence they have submitted so far is purely circumstantial – records of 40 phone calls between Pollycarpus and Muchdi in the period leading up to Munir’s murder, including one on 7 September 2004, the day Munir was killed.

While convincing for many observers, this evidence alone is not enough to convict Muchdi. Without audio recordings of the phone conversations themselves, they can simply be dismissed by the defence as routine correspondence between a senior intelligence officer and a junior staffer – all that they prove is that the two men called each other a lot. And it leaves unanswered the big question behind it all: why, in fact, did Pollycarpus murder Munir anyway?

On 2 December 2008, prosecutors formally sought a 15-year jail sentence for Muchdi as the ‘initiator’ of Munir’s murder, a lighter sentence by five years than that received by Pollycarpus, who actually put the arsenic in Munir’s drink.

The trial of Muchdi has been widely cited as a test of the maturity of Indonesia’s new democracy

The lenient sentencing recommendation sparked outrage among Munir’s supporters who argue that Muchdi deserves life in prison. Rudi Satrio Mukantardjo, a criminal law expert from the University of Indonesia, was quoted by Tempo magazine as agreeing, arguing that, as a conspirator, Muchdi should receive at least the same sentence as the actual murderer, a position open to the court under the Criminal Code. The prosecution responded by admitting that the request for 15 years reflects the weakness of the evidence and Muchdi’s record of state service – hardly a vote of confidence in their own case. The Defence’s response was to state bluntly that the prosecution had completely failed to prove motive and Muchdi should be acquitted.

A test for democracy

The trial of Muchdi has been widely cited as a test of the maturity of Indonesia’s new democracy: can the military and intelligence apparatus still claim the impunity they enjoyed for so many decades under Suharto? It is now the case, however, that it would require a significant distortion of legal logic and process to convict Muchdi, given the lack of evidence.

It looks increasingly likely that this big fish will get away clean

With the case for motive now challenged, no key witnesses and only the phone records connecting Muchdi to Pollycarpus, it looks increasingly likely that this big fish will get away clean. And the big question then will be how it all got to this point: what happened to all those witnesses anyway, and why did the judges knock out the damning Ministry of Defence document?

Only one thing is certain – whatever the outcome at first instance, appeals are inevitable, and so final answers are only likely when the trial of the year finally reaches the Mahmakah Agung (Supreme Court). That’s likely to be a long way off, and who knows what new evidence might be found in the meantime?

Dramatic and unpredictable indeed!     ii

Tim Lindsey (t.lindsey@unimelb.edu.au) heads the Asian Law Centre at Melbourne University where Jemma Parsons (jemmasp@unimelb.edu.au) is a Principal Researcher.


Inside Indonesia 94: Oct-Dec 2008



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