2.1 Career as a lawyer

Why the government identified Alkostar for a position as a non-career Supreme Court judge has, to my knowledge, never been publicly explained. But one can speculate that he was selected because of his deserved reputation for being a hardworking, fearless, and honest lawyer and academic. Alkostar had worked for many years as a public defender for the Legal Aid Institute during the Soeharto era; he even directed the Yogyakarta branch from 1983 until 1989.Footnote ¹⁵ In his work, he represented clients in cases where significant government and military interests were at stake.

For example, he helped to defend clients against government appropriation of their land such as in the controversial Kedungombo and Tanah Ohee cases.Footnote ¹⁶ The Kedungombo case involved the government taking land in Central Java to build a dam, apparently offering little or no compensation to communities who had long held that land under customary title (hak ulayat).Footnote ¹⁷ The Tanah Ohee case was a dispute in West Papua between customary law communities and the local government, which had allegedly been using 62 hectares of customary land for government offices. Both cases involved lengthy legal proceedings and alleged military intimidation against plaintiff land holders. Both are significant because, while the government effectively won them, and they continue to be cited as examples of Soeharto-era government control of the judiciary, the plaintiffs did win some victories along the way. In Kedungombo, for example, the plaintiffs were unsuccessful at first instance and on appeal,Footnote ¹⁸ but they won in the Supreme Court on “cassation”—a process I discuss below. Here, the Supreme Court not only upheld their claim against the government, but also increased the amount of compensation beyond their claim.Footnote ¹⁹ This decision was celebrated as one of the few Supreme Court cases that went against the government at the height of Soeharto’s power. But this victory was short-lived. The government asked the Supreme Court to “reopen” the case—also discussed below—which it did and then duly sided with the government. By contrast, in the Ohee case, the plaintiffs won at first instance, then lost on cassation, but won the Supreme Court reopening. This case became notorious when, in early April 1995, before execution was ordered, the Supreme Court Chief Justice Soerjono instructed the Jayapura District Court chairperson not to enforce the decision.Footnote ²⁰

Alkostar also defended victims of military violence during the Soeharto period. For example, he defended several East Timorese demonstrators charged with subversion after the so-called Santa Cruz Massacre in 1991. He claimed to have been “continually and repeatedly … threatened and terrorised” during his four months in Dili. He even said that a “ninja” was sent to kill him at his hotel one night, explaining that, because his room was registered under his assistant’s name, the would-be assassin could not locate him.Footnote ²¹ As director of the Yogyakarta Legal Aid Institute from 1983 to 1998, he was also involved in legal responses to the so-called Petrus (penembakan misterius, or mysterious shootings) killings of 1982–85.Footnote ²² This was a state-sanctioned military programme under which alleged criminals were extra-judicially executed or detained. He advised and represented many people detained without trial.Footnote ²³ Artidjo allegedly protected criminal figures on a military hit list, even letting one gangster stay at his house for three months.Footnote ²⁴ This brought him into direct confrontation with powerful military figures, amid rumours that he, too, had become a target and would be murdered in his sleep.Footnote ²⁵

Like other Supreme Court judges, Alkostar sat on both “cassation” (kasasi) and case reopenings (peninjauan kembali, or PK). Cassation processes are, in essence, appeals, usually from provincial appeal courts (pengadilan tinggi).Footnote ²⁶ Formally, their main purpose is to ensure that the lower courts—the first-instance court (pengadilan negeri) and appeal court—have applied the law correctlyFootnote ²⁷ but sometimes, in practice, the presiding judges will also re-evaluate factual issues and how the lower courts applied them.

By contrast, PKs are reviews of the “final” decision of a lower court, or even of the Supreme Court itself. (If the decision being reopened is a Supreme Court decision, then the panel of judges hearing the review must be different to the panel that initially decided the case.) The grounds for a PK in criminal cases are: a new circumstance has emerged that, if known, would have resulted in an acquittal or a lesser charge; an obvious error; or a fact or situation established in the decision that contradicts an aspect of another case.Footnote ²⁸ Even though they were initially intended to be used in exceptional circumstances, PKs are now almost inevitably lodged by well-resourced defendants. They have nothing to lose because, unlike appeals and cassations, PK panels cannot increase penalties—they can only reduce or acquit. In recent years, defendants have even lodged multiple PKs, after a decision of the Constitutional Court declared unconstitutional provisions allowing only one PK.Footnote ²⁹

Both cassation and PK applications are decided “on the papers.” The parties lodge their memoranda (memori), containing the legal arguments that support what they ask the court for—usually an acquittal or a more lenient sentence from the defence and a heavier penalty from the prosecution. The parties can rarely make oral representations. They must, therefore, anticipate the other party’s arguments and refute them in their own documents. Decisions are made behind closed doors, which has led to complaints about the process lacking accountability and transparency.Footnote ³⁰

Importantly, the process prevents Supreme Court judges from directly assessing witness testimony. They can order fresh evidence to be heard, but this task will usually be delegated to the lower court at which the case commenced, which will send a report on that evidence to the Supreme Court. This system is a product of the Supreme Court’s main function—ensuring the proper application of the law. But, as we shall see, the Supreme Court often goes beyond assessing the legality or admissibility of evidence to assess the credibility and veracity of evidence. Critics, including some judges, say that the Supreme Court exceeds its jurisdiction when it does this.

2.2 The panel system

Like most Supreme Court judges, Alkostar served as a member of a judicial panel during his career. As a general rule, these panels comprise three judges,Footnote ³¹ but sometimes five judges will sit.Footnote ³² Judges sit alone only in extreme circumstances.Footnote ³³ The panel will commonly produce a single decision, signed by all of the judges on the panel. Judicial dissents are permissible, albeit relatively rarely in all courts, except the Constitutional Court. Sometimes, the identities of dissenting judges are not specified in the judgment.

In these circumstances, one might ask how the cases discussed in Sections 3 and 4 can illuminate Alkostar’s decision-making. It is, indeed, impossible to isolate his appraisal of facts and legal reasoning from those of the other members on the panel. After all, judges’ deliberation meetings (rapat permusyawaratan hakim), where cases are discussed and decisions reached, are confidential.Footnote ³⁴ However, in my view, these decisions can, in a general sense, be used for this purpose, for two main reasons.

The first is that Alkostar would likely have been highly influential on these panels. He appears to have chaired most of the panels he worked on, particularly after being appointed Junior Supreme Court Chairperson for Criminal Law in 2009. Undoubtedly, as a panel chairperson, his views would have carried more weight than those of an ordinary panel member. Even on panels that he did not chair, his views would have been very influential, given his seniority and revered status. His influence on judicial panels was confirmed in an interview with Supreme Court judge Margono, who, referring to the decisions that increased sentences for corruption convicts, said that “If Alkostar makes that decision, then automatically judges under his coordination must follow it.”Footnote ³⁵

The second is that, as mentioned, Supreme Court judges, including panel chairs, are free to dissent. If Alkostar did not agree with the majority of a panel on which he sat, he could have simply expressed this in a dissenting opinion. Given his model-judge attributes, discussed below, he could be expected to have had no hesitation in doing this. Indeed, he has issued strong dissents in high-profile cases and claims to have issued Indonesia’s first judicial dissent. As I argue below, many cases he helped to decide contained glaring legal errors, highly problematic evidence, or no discussion of issues worthy of detailed consideration. Had he identified these problems, he could have highlighted them in a dissent, even if other members of the panel were willing to overlook them.

2.3 Alkostar’s “characteristics”

As mentioned, the Supreme Court released a book to commemorate Alkostar’s retirement, in which interviewees expressed their views about Alkostar, as both a judge and an individual. A common theme was that Alkostar was a “model” judge—apparently embodying the characteristics to which Indonesian judges should aspire.Footnote ³⁶ Almost all interviewees, and many media reports, praised him for having the following traits or strengths (kelebihan).

3.1 Criticisms

While his hard-line approach undoubtedly made Alkostar publicly popular, various commentators have questioned his decision-making in some of these cases, particularly where he has increased prison terms.Footnote ⁸⁵ Although perhaps the most sustained criticism has come from lawyers whose clients’ punishments were increased, other notable legal figures have also publicly criticized Alkostar.

One is former Constitutional Court Chief Justice Hamdan Zoelva. At a widely reported forum entitled “Artidjo: Adjudicating or Punishing?,” held at a Jakarta restaurant in mid-2015, he suggested that Alkostar’s decisions violated limitations on the Supreme Court’s jurisdiction, particularly in cassation hearings, which can only examine the lower courts’ “interpretation, construction and application” of the law.Footnote ⁸⁶ Zoelva suggested that Alkostar often ignored this limitation to re-examine or reassess factual aspects of cases. It is dangerous for the Supreme Court to increase penalties on appeal, Zoelva continued, because its judges were not present while the evidence was given and thus “did not understand the atmosphere in the courtroom.”Footnote ⁸⁷ Here, it bears recalling that Supreme Court decisions are made primarily on the papers. Its judges cannot, therefore, directly observe witnesses to assess their credibility, for example.

Zoelva also suggested that Alkostar was emotional, subjective, and lacked independence. He said: “Judges should not just decide cases for their personal satisfaction, for their name to be recorded in history. This is a crazy judge, who knows no forgiveness and is truly perpetrating injustice.”Footnote ⁸⁸

He suggested that increasing a sentence simply indicates that the judge was “angry” (marah).Footnote ⁸⁹ Zoelva even identified 17 of Alkostar’s decisions that were questionable on these grounds and might, therefore, require academic re-examination.Footnote ⁹⁰

Another figure critical of Alkostar is Yusril Mahendra, who, as mentioned above, called Alkostar to convince him to join the Supreme Court. Mahendra has since said that he regrets appointing him, because Alkostar treats people as “corruptors” even when they are still only suspects.Footnote ⁹¹ Although not saying this directly, Yusril’s comments appear to imply that Alkostar has ignored the presumption of innocence in some cases. It must be said that Alkostar has himself supported this view in interviews he has given about the cases he has handled. For example, in one interview, he pledged: “If a corruptor’s file comes across my desk, he or she will not get away.”Footnote ⁹²

Although not as critical as Zoelva and Mahendra, Judicial Commission Head Marzuki Suparman has also subtly expressed disquiet about Alkostar’s decision-making:

Suparman explained that the Judicial Commission often asked Alkostar to clarify the reasoning in his decisions, given his well-known dislike for “corruptors” and penchant for increasing their punishments.Footnote ⁹⁴

Alkostar is unapologetic about these sentences, instead asserting that corruption is a “crime against humanity” that “brings international shame to Indonesia” and severely damages the nation, impoverishes the people, and eats into the funds available for public educational and health.Footnote ⁹⁵ When pressed, he has also attempted to justify increasing sentences by saying that he simply uses different, but equally applicable, provisions against defendants compared with those used by the lower courts. The Anti-corruption Law has long been criticized for having multiple provisions prohibiting the same action but imposing different penalties. This gives police, prosecutors, and judges discretion to choose between provisions. Some have been known to use the lure of a provision with a lower associated penalty to extract confessions or even bribes and to use a higher-penalty provision to intimidate or extort.

In particular, Alkostar has said that he disagreed with serious corruption cases involving government officials being pursued under Article 3 of the 1999 Corruption Law, rather than Article 2. Both Articles 2 and 3 require damage to state finances and enrichment of the perpetrator or another. But key differences between them are that Article 2 captures any “unlawful act” and, for most offences, allows judges to impose a penalty of 4–20 years’ imprisonment, life imprisonment, or, in particular circumstances, the death penalty, whereas Article 3 applies to those who “misuse their power” and imposes a penalty of 1–20 years’ imprisonment and does not permit the death penalty. Alkostar’s objection appears to be that officials who misuse their power and engage in corrupt activities by definition also engage in an “unlawful act” and so they can and should be pursued under Article 2, with its more severe punishments. Instead, many courts applied Article 3 against public officials because of its reference to misuse of power.Footnote ⁹⁶ In one interview, he said: “It is strange if the loss of however-many billions of rupiah is only punished with one year [of imprisonment] … I often say that judges should not be defeated by corruptors.”Footnote ⁹⁷

Alkostar’s claim that Article 3 is more lenient compared to Article 2 is supported by a 2012 Supreme Court Practice Note, which suggests that judges apply Article 2 rather than Article 3 in cases involving alleged state loss of Rp 100 million or more.Footnote ⁹⁸ So, for example, in one Supreme Court case chaired by Alkostar, the panel applied Article 2 against the defendant, a public servant from Medan, for causing loss of over Rp 5 billion.Footnote ⁹⁹

There is very little to commend Alkostar’s views about Articles 2 and 3 and the Practice Note because it assumes that judges will impose the minimum sentence of one year’s imprisonment under Article 3. But judges can issue up to 20 years’ imprisonment under Article 3. To be sure, Article 2 allows judges to meter out life or death sentences. But judges have never used it to impose a death sentence and only once issued a life sentence, in the Mochtar case. Indeed, anti-corruption courts are commonly criticized for handing down lenient sentences, including in Article 2 cases, despite having an exceptionally high conviction rate.Footnote ¹⁰⁰ Except for this one case of life imprisonment, then, judges could have handed down exactly the same prison sentences in cases involving misuse of power, under either Article 2 or Article 3.

It also bears noting that in none of the high-profile cases in which Alkostar famously increased sentences, mentioned above, was Article 2 or Article 3 actually applied. Instead, these cases involved the application of Article 12a. This provision imposes life imprisonment, or a prison term of between four and 20 years, and a fine of between Rp 200 million and Rp 1 billion for “civil servants or state administrators who receive a gift or promise even though they know or should know that the gift or promise is given so that they perform or do not perform something as part of their office and which contradicts their obligations.” It is almost identical to the combined effect of Articles 5(1) and (2). Article 5(1) imposes between one and five years’ imprisonment and a fine of Rp 50–250 million for those who “give or promise something to a public servant or state administrator with the intent that the public servant or state administrator does or does not do something as part of their office and which contradicts their obligations.” Article 5(2) makes the recipient of such a gift or promise subject to the same penalties. The provisions under which the defendants in these cases were initially charged, prosecuted, and convicted in each proceeding is not clear from the available documents. But, given that, except for Chosiyah, they all received sentences greater than five years’ imprisonment, they could not have been initially convicted under Article 5(2). Alkostar could not, therefore, have justified increasing the sentence by applying Article 12a instead of Article 5(2). They must have been pursued under Article 12a from the beginning.

3.2 Overturned decisions

Some of those people whose sentences were increased by an Alkostar cassation panel have successfully appealed against the toughness of those sentences. These cases tend to confirm the view that Alkostar was too harsh on defendants, at least in some cases. One was Angelina Sondakh. In 2013, the first-instance Jakarta Anti-corruption Court found her guilty of corruption and sentenced her to four and a half years’ imprisonment.Footnote ¹⁰¹ This decision was upheld on appeal to the High Anti-corruption Court in Jakarta.Footnote ¹⁰² Sondakh appealed the conviction and KPK prosecutors appealed the perceived leniency, having initially sought 12 years’ imprisonment. Two of the three judges on the cassation panel, led by Alkostar, sided with the prosecution.Footnote ¹⁰³ The judges found that Sondakh had secured state-budget allocations for projects of the Ministry of Youth and Sports and the Ministry of National Education and then ensured that those projects were awarded to the Permai Group, owned by former Democrat Party Treasurer Nazaruddin. She did this by using her political influence, including her membership of the national parliamentary Commission that determined budget allocations. In return, she received 5% of the value of the projects. The two judges were satisfied that these allegations had been validly proved, including through Blackberry Messenger transcripts in which the plan was discussed and through witness testimony. The majority found that she had received over $US 3 million and ordered that she repay this amount. However, Professor Mohammad Askin, an ad hoc judge, dissented, finding that the evidence suggested receipt of less than half this amount: $US 1.35 million. Askin decided that, because of this error, her sentence and fine should be maintained, but not the repayment.Footnote ¹⁰⁴

Sondakh lodged a PK. A unanimous panel appeared to share Askin’s view that the KPK had only proven that she had received $US 1.35 million, not over US $3 million as the majority on the cassation panel had found. The judgment says the smaller amount could be proved by witness testimony and Blackberry Messenger transcripts, but the larger amount, though supported by testimony and a hard disk, required further evidential substantiation.Footnote ¹⁰⁵ Even though this point appeared to constitute the crux of the panel’s decision, it was not explained in further detail. The panel ordered her to repay this lower amount but did not reduce her sentence in the same proportion. This was because the court found that she had misused a position of responsibility for personal gain. But the PK panel still reduced her sentence from 12 years to 10 years, finding that she was not entirely responsible for the allocation of budgets and was a single mother with young children.Footnote ¹⁰⁶

Similarly, high-profile lawyer O. C. Kaligis successfully appealed against an Alkostar-led cassation decision. He was convicted for ordering the bribing of a judge hearing a case involving one of his clients. Kaligis was sentenced to five and a half years in prison at first instanceFootnote ¹⁰⁷ and seven years on appeal.Footnote ¹⁰⁸ A cassation panel chaired by Alkostar increased this to ten years.Footnote ¹⁰⁹ In response, Kaligis brought civil proceedings against Alkostar, claiming compensation for an unlawful act.Footnote ¹¹⁰ He accused Alkostar of illegally ordering an extension to his detention after the cassation decision was read out, which resulted in his being held in Anti-corruption Commission detention rather than in prison. He also suggested that Alkostar had refused to allow him to receive medical attention during the cassation. The Central Jakarta District Court decided in favour of Alkostar, holding that the detention was valid, that Kaligis had provided no evidence of the need for an overnight medical stay, and that, in any event, it was inappropriate to individually target Alkostar, given that the decision was made by a panel of judges.Footnote ¹¹¹ Kaligis unsuccessfully appealed to the Jakarta High CourtFootnote ¹¹² and lodged a cassation that was still pending at the time of writing.

Kaligis also lodged a PK against his criminal conviction. The Supreme Court reinstated the seven-year sentence issued by the lower courts, pointing out that the cassation court had used the defendant’s age—74 years old—as a reason to increase his sentence, but should have instead reduced it.Footnote ¹¹³ The PK panel also accepted that others involved in the bribery received sentences significantly lower than Kaligis had: the three judges who received bribes were sentenced to four years each and the person who paid the bribe to two years.Footnote ¹¹⁴ Further, the bribe amount in this case was comparatively small, with the average sentence in similar cases being seven years.Footnote ¹¹⁵

Of course, it is not uncommon for judicial decisions to be overturned or for sentences to be adjusted. After all, the main function of appeal courts is to correct errors made by lower courts. But the subsequent judicial reduction of sentences issued by Alkostar-led panels did not appear to undermine the generally held view of him as a model judge, conveyed in the praise for him discussed in Section 2. Far from raising doubts about the quality of his decision-making, these successful appeals against Alkostar’s decisions may well have consolidated his reputation for being a good judge, perhaps at least partly based on the assumption that the appeal judges were not as free from interference or as firm as he was. For reasons explained below, there has long been no public sympathy in Indonesia for those given harsh sentences for corruption and Alkostar’s willingness to impose them appears to have significantly contributed to his popularity. In this context, criticisms of his decision-making—along the lines of those made by Zoelva, Mahendra, and Suparman—largely fell on deaf ears.

4.1 The Bantleman case

In February 2016, Alkostar chaired the cassation appeal of Neil Bantleman, a Canadian who had worked at Jakarta International School (JIS). The South Jakarta District Court had convicted him of sexually assaulting kindergarten boys from the school and imprisoned him for ten years,Footnote ¹²⁸ but the Jakarta High Court acquitted him on appeal.Footnote ¹²⁹ Prosecutors then lodged a cassation appeal with the Supreme Court. The cassation panel overturned the high-court decision, reconvicted him, and increased his initial sentence by one year.Footnote ¹³⁰ A different panel of Supreme Court judges confirmed this decision when Bantleman applied for a PK.Footnote ¹³¹

The first-instance and Jakarta High Court judgments are not publicly availableFootnote ¹³² and the proceedings were closed to the public due to the sensitive nature of the case. But the cassation and PK transcripts appear to reveal the main points of contention between prosecutors and the defence: the veracity and legality of the testimony given by the alleged victims, aged between five and seven years old, and how that evidence could be used, if at all, against Bantleman. This testimony was central to the case against him; indeed, the indictment, which prosecutors read out in the South Jakarta District Court at the commencement of the trial, was largely based on that testimony.

The case against Bantleman was extremely weak, primarily because none of the prosecution evidence was credible or pointed to his guilt. The children claimed that eight adults anally raped them on numerous occasions and that they were, on some of these occasions, punched in the stomach beforehand. But many aspects of the children’s testimony appeared to be concocted. One child said that Bantleman made a magic stone appear, which was inserted into the victim’s anus to act as an anaesthetic. Another testified to being drugged with a blue liquid that the school principal made in a blender. The victims claimed to have been pulled out of class during school hours and being raped in different places, including: Bantleman’s office, which had glass walls and was located in the middle of the school, into which staff and students could easily see; the staff kitchen; and a “secret room” that, despite extensive searching, police never found. The boys could not identify the times or dates of the alleged incidents.

Bantleman’s supporters suggest that judges led the child witnesses, setting out the prosecution version of events and then asking the children for confirmation of them, rather than encouraging them to give evidence freely.Footnote ¹³³ There were indications, too, that parents may have coached their children to give incriminating testimony: during a reconstruction of the alleged crimes at the school in July 2014, one child asked his mother, “I was attacked here, right, Mum?” and “Which direction should I point to, Mum?”Footnote ¹³⁴

Medical examinations were conducted, but none found clear evidence of physical trauma that proved that the boys had been raped. The police hospital examination of one alleged victim found that he had a “funnel-shaped anus” with some scar tissue and a red area on his skin.Footnote ¹³⁵ Another victim’s examination, conducted in March 2014, revealed a bruise on his stomach, but no anal wounds.Footnote ¹³⁶ Another examination of the same child, on 21 April, found proctitis, but noted that this could equally have been caused by an infection, diarrhoea, or hard stools.Footnote ¹³⁷ The Indonesian police examination of a third child found no evidence of anal rape—a finding that was confirmed by a comprehensive medical examination of the same child conducted at a specialist women’s and children’s hospital in Singapore soon after the alleged incidents.Footnote ¹³⁸

Early in the controversy, the mother of that third child alleged that her son had contracted herpes from the rapes. The police medical examination refused to exclude the possibility and recommended further testing.Footnote ¹³⁹ But a test later performed in Europe detected no herpes, suggesting that the initial test result was a false positiveFootnote ¹⁴⁰ or that the report itself was manipulated. In any case, whether Bantleman was tested for herpes was not disclosed in the judgment. Surely, the prosecution needed to prove that Bantleman had herpes to justify any finding that he had passed it on to the child.

Adding to the farcical progression of the trial was expert testimony, given by a “Sexologist Psychiatrist” about Bantleman’s sex life, which he labelled “inappropriate” (tidak wajar) and “abnormal.” The witness claimed that Bantleman had been having sex only once a week—sometimes less—with his wife since they were married and no longer masturbated. He concluded that normal regularity would be at least two or three times per week, if not daily, and suggested that Bantleman must have needed to channel his sexual needs elsewhere.Footnote ¹⁴¹ Without further explanation, the witness concluded that Bantleman’s sex life was “divergent,” which, combined with the testimony of the children, led him to classify Bantleman as an “inclusive” paedophile—that is, someone with a sexual preference for children but who is also capable of sexual intercourse with adults.Footnote ¹⁴²

The district court did not appear to give any weight to witnesses called by the defence—particularly schoolteachers who testified that the students had neither been pulled out of class nor appeared traumatized over the period when the abuse was alleged to have occurred. The panel also ignored strong legal arguments, made by the defence, that the testimony of the children, their parents, and their psychologists was inadmissible. The defence argued that most of the testimony of the parents and psychologists was hearsay, because it merely recounted the children’s allegations, rather than what the parents or psychologists saw themselves. The parties and the court seemed to agree that children under the age of 15 cannot, under Indonesian law, give sworn testimony, so their accounts cannot be classified as stand-alone “valid legal evidence.” As mentioned, the main issue of dispute, raised during the trial and appeals, was whether their testimony could be used at all and, if so, for what purpose.

To understand the controversy, a brief discussion of the concept of “valid legal evidence” may assist. This is evidence that can formally be used to prove guilt under Indonesian law. It encompasses more traditional types, such as witness evidence, evidence from the defendant, documentary evidence, and expert witness evidence,Footnote ¹⁴³ and more modern types such as video and sound recordings and electronic information.Footnote ¹⁴⁴ It also includes petunjuk—literally, “clue,” but commonly translated as “circumstantial evidence.” The Code of Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana, or KUHAP) defines it as “an act, event or circumstance which, because it is consistent with another [act, event, or circumstance], or with the crime itself, indicates that a crime has been committed and the identity of the perpetrator” (Article 188(1)). This definition clarifies that petunjuk evidence cannot “stand alone;” a sole piece of petunjuk evidence does not qualify as “valid legal evidence.” It must be corroborated by at least one other form of petunjuk evidence or another type of valid evidence before it can have this status.

This is important, because judges formally may not convict unless they have at least two “valid pieces of evidence” (alat bukti yang sah) that support a “strong belief” (keyakinan) that the accused committed the alleged crime (Article 183). In other words, judges must be subjectively convinced of guilt, but based on objective standards (that is, a minimum amount of evidence).Footnote ¹⁴⁵ This rule is said to provide safeguards for defendants, while retaining some judicial flexibility. It prevents judges convicting on anything less than two pieces of evidence, but also allows judges to acquit if they are not convinced of guilt, even if the prosecution has produced more than two pieces of valid evidence.

But how the courts apply these rules is rarely transparent and significant uncertainty exists, particularly about whether two pieces of petunjuk evidence that corroborate each other constitute a single piece of evidence or two pieces. Some uncertainty exists about whether petunjuk evidence corroborated by another valid piece of evidence, such as witness testimony or an official document, constitute two pieces or only one. Remarkably, there is even uncertainty about whether unsworn testimony (petunjuk) needs to be corroborated by valid witness testimony, or whether any other type of valid evidence will suffice. To be sure, Indonesian courts, particularly at first instance, often do discuss the various types of evidence adduced by the parties and their admissibility, sometimes at length. But they almost never clearly identify the two pieces of evidence upon which they base their convictions. Precisely what they relied on to meet the objective standard is, therefore, rarely specified. This vagueness makes it difficult for appeal courts to uncover any errors made in the lower courts relating to that evidence.

Because the first-instance decision involving Bantleman is not available and the trial was closed to the press, it is impossible to discuss precisely how that court ultimately justified admitting the child, parent, and psychologist testimony. However, one can speculate that the court must have classified the unsworn testimony of the children as petunjuk and then treated it as valid evidence because it corresponded with the sworn testimony given at trial by the parents and psychologists, even though much of the sworn parental and psychologist testimony merely regurgitated the unsworn child testimony. The panel declared that it was convinced of Bantleman’s guilt and sentenced him to ten years’ imprisonment.

Bantleman appealed to the Jakarta High Court. While the court was considering the appeal, the Singapore High Court issued a decision in defamation proceedings, brought by JIS and some of its teachers against the mother of one accuser.Footnote ¹⁴⁶ From Singapore, she had sent messages to other parents at the school, accusing staff members of the assault. The Singapore Court found that these had defamed the school and the teachers, and noted that “the objective evidence suggests that [the child] was never sexually abused.” The court pointed to: evidence that the child repeatedly denied being sexually abused; the physical examination at the Singapore KK Women’s and Children’s Hospital revealing no signs of injury or scarring; and a text message that the mother sent to a friend after receiving the test results saying, “Thank God everything is okay” and “we’re more than happy because at least we can close this chapter and start a new chapter in Singapore.” Against this background, the court noted, the defendant then began alleging that her child had been raped over 20 times.Footnote ¹⁴⁷ Of course, these defamation proceedings were foreign and civil, and Indonesian courts did not have to pay them heed. But the Singapore High Court’s conclusion that the child was not abused raised further doubts about the correctness of the South Jakarta District Court’s decision.

The Jakarta High Court acquitted Bantleman after finding that the unsworn testimony of the three children did not stand alone and was not supported by any other valid witness testimony. It was not, therefore, “valid legal evidence” that could be used to determine Bantleman’s guilt. In concluding this, the court must presumably have decided that the parental evidence was not admissible, perhaps because it constituted hearsay. For the court, that the testimony of the children was consistent with another type of evidence—here, the expert psychologist testimony or the equivocal medical examination reports—was irrelevant.Footnote ¹⁴⁸ The judges also found it inconceivable that the children would have kept returning to school after repeated abuse.

Within days,Footnote ¹⁴⁹ prosecutors announced that they would appeal to the Supreme Court and lodged a cassation application. As mentioned, Alkostar chaired the three-judge panel, which reached its decision with astounding swiftness. According to defence lawyers, the case was decided within two days of the panel being chosen to handle it, amid concerns that a travel ban on Bantleman was due to expire.Footnote ¹⁵⁰

In their memorandum of cassation, which appears in the judgment, prosecutors argued that, as a matter of evidence law, the unsworn witness testimony did not need corroboration with sworn witness testimony in order to become one of the two pieces of evidence needed for a conviction; rather, consistency with any type of valid evidence (including expert evidence or the medical examinations) would suffice. This argument requires a rather large interpretative stretch of the plain words of Article 185(7) of the KUHAP, which specifies that unsworn evidence is not valid unless it is consistent with other sworn evidence:

Unsurprisingly, prosecutors argued that the children’s unsworn testimony alleging rape was supported by the parents’ sworn evidence, which gave the unsworn testimony status as a “valid piece of evidence.” They also argued that the parents’ evidence was otherwise “valid”—it was not hearsay, because it conveyed what the parents heard and saw of their children’s trauma, including when they witnessed their children identifying Bantleman from photographs in a school yearbook.Footnote ¹⁵¹ (Prosecutors also mentioned, later in the memorandum, that the parent testimony was derived from “listening to the stories” of the children,Footnote ¹⁵² which suggests hearsay. But the Supreme Court did not appear to pick this up.) Prosecutors also alleged that the high court had, in effect, disregarded the testimony of four psychologists, who had done more than just repeat what the children had told them; for example, they had also used their expertise to assess whether the children were being truthful and suffering from trauma.

As mentioned, the Alkostar panel upheld the appeal and reinstated Bantleman’s conviction. In a threadbare decision, taking up only a few pages of the 85-page judgment, the panel held that the high court had mistakenly acquitted. The reason given was that the testimony of the children could be used as petunjuk and that, when viewed beside the expert evidence (particularly the evidence from psychologists who had examined the boys) and the medical reports, the formal requirement of two pieces of valid evidence was met. The court did not attempt to address the main legal issues that this case raised: the unsworn testimony’s evidential value or permissible use. To be sure, the court mentioned that Article 171 of the KUHAP allows children who are under 15 or unmarried to give unsworn testimony and that the Elucidation to Article 171 states that this testimony can be used as petunjuk. But this was not in dispute in the lower courts. The panel avoided specifying whether unsworn testimony needed to be corroborated by sworn testimony, or whether corroboration with some type of other valid evidence would suffice. The panel appeared to proceed using the latter interpretation, but did not expressly recognize this, much less explain why those other forms of valid evidence were sufficient to prove guilt in this case. The court also did not identify the parts of the medical reports that conclusively demonstrated that the boys had been raped, let alone who raped them. The panel also added a year to Bantleman’s sentence, with no explanation.

Within a few months of the cassation decision being handed down, Bantleman launched a PK, which was decided in 2017. According to the parts of the application in the PK judgment, the defendant’s lawyers focused on how the cassation panel had dealt with the evidentiary problems that the case presented.Footnote ¹⁵³ Like the cassation panel, however, the PK judges almost summarily rejected these arguments, without discussing the main evidentiary controversies, declaring that it was satisfied that Bantleman had been proved guilty.

Neither the PK panel decision nor the Alkostar-led cassation decision was convincing. Neither squarely addressed whether the parents’ testimony was valid (because it contained hearsay) or even whether it corresponded with the children’s testimony (and hence whether it could convert that children’s testimony to valid evidence). In this context, the Supreme Court may well have neglected its obligation to ensure due process, particularly by ensuring the objective application of Indonesia’s rules of evidence. The cassation panel’s increase in the sentence was also highly problematical. The panel did not even attempt to establish that Bantleman’s initial sentence was inadequate, much less explain why it added the additional year, and the judgment contains no prosecution arguments supporting the increase. The court did not even acknowledge increasing the penalty; it simply stated that its decision replaced the high court’s and included the 11-year sentence.Footnote ¹⁵⁴

Unfortunately, circumstances surrounding the case have fuelled suspicions of impropriety and injustice, and, indeed, prompted statements of condemnation of the legal process by the Canadian foreign minister and the US ambassador.Footnote ¹⁵⁵ The complaint against Bantleman came after one parent alleged that her child had been sexually assaulted by school cleaners. She obtained a medical report, which she claimed proved that her son had contracted herpes after multiple rapes, and initiated legal proceedings against the school, claiming $US 12.5 million. In this civil action, her lawyer was the notorious OC Kaligis—the most senior Indonesian lawyer ever to have been convicted for corruption, by an Alkostar-led panel, no less, as mentioned. Her allegations were widely reported, prompting a public backlash against the school. She also reported the allegations to police, who interrogated the cleaners and extracted confessions from them, apparently using torture.Footnote ¹⁵⁶ Indeed, one cleaner died in police custody, allegedly from that torture.Footnote ¹⁵⁷ They were ultimately convicted and received sentences of between seven and eight years’ imprisonment. Only after it emerged that the cleaners were contractors and that the mother could not, therefore, sue the school for their alleged assaults did she pursue Bantleman and an Indonesian teacher, and increase her civil claim to $US 125 million. Some observers, sceptical of the evidence and legal process, suspect that the entire criminal complaint and trial, including the prosecution evidence, were manufactured at the behest of the mother, to extort money from the school. If this is true, then she could not have gotten so far without the complicity of many key players in the investigations, prosecutions, and the convictions. The Indonesian judges (including Alkostar) who heard Bantleman’s trial and appeals also appeared to pay no attention to the parallel civil litigation in Singapore and the credible evidence adduced there about the motivations for bringing criminal proceedings.

Causing even more controversy was Bantleman’s successful clemency application, release from prison after serving only five years of his sentence, and his return to Canada in 2019, all of which was publicly announced only after he had arrived in Canada. His release, it seems, came from high-level discussions between officials of Canada and Indonesia, including Prime Minister Trudeau and President Jokowi at the G20 summit in China in September 2016.Footnote ¹⁵⁸ While one can hardly disagree with the outcome, the circumstances of his release also raise questions about political interference in Indonesian law enforcement.

4.2 The Siska Makelty case

Alkostar was involved in one of Indonesia’s most famous medical-malpractice cases, which arose out of the death of patient Siska Makelty, after an emergency caesarean operation, in Manado, North Sulawesi, in 2010. For reasons not explained, this was treated as a criminal matter, with a trial commencing in the Manado District Court in 2011.Footnote ¹⁵⁹ The prosecution indicted three doctors for violating Article 359 of the Criminal Code, which provides up to five years’ imprisonment for negligence resulting in death, pointing to three alleged negligent acts or omissions. The first was that the doctors had not informed the deceased’s family of the worst possible outcomes of the caesarean procedure, including death, before performing it. The second was that the doctors had not performed “supporting examinations” (pemeriksaan penunjang) such as chest x-rays before the procedure.Footnote ¹⁶⁰ Third, they argued that the doctors negligently performed the operation itself—particularly by allowing air to enter the right ventricle of the patient’s heart, which impeded blood flow into the lungs, causing heart failure.Footnote ¹⁶¹

The Manado District Court rejected all three claims. As for failure to warn, the deceased’s parents claimed that they had not been informed of the risks, but the doctors testified that they did in fact provide that information, including to the patient herself,Footnote ¹⁶² and produced a signed consent form.Footnote ¹⁶³ Faced with these conflicting accounts, the court concluded that, on balance, prosecutors had not proved that doctors had failed to inform the deceased and her family of the risks.Footnote ¹⁶⁴ In any event, several expert witnesses, including a prosecution witness, testified that consent was not required for emergency operations such as this one.Footnote ¹⁶⁵ Several experts also testified that “supporting examinations” could not always take place during emergencies, thereby disposing of the prosecution’s second argument.

Finally, as for the operation itself, the court cited health regulations suggesting that doctors would not be negligent if they followed standard operating procedures and noted that several witnesses had testified that doctors followed such procedures.Footnote ¹⁶⁶ One was a prosecution witness, who added that the defendants had saved the life of the deceased’s baby and that the deceased’s death was unforeseeable.Footnote ¹⁶⁷ Another prosecution witness testified that the death “was not the fault of the operator.”Footnote ¹⁶⁸ The court also referred to a Health Ministry Regulation that stipulates that the Medical Discipline Honour Council is to determine whether medical negligence has occurred in any given case.Footnote ¹⁶⁹ The defendants called the chairperson of that council as a witness; he testified that the council had investigated the case and found no wrongdoing.Footnote ¹⁷⁰

The prosecution appealed by way of cassation to the Supreme Court. Alkostar was chair of the panel of judges that decided this appeal. The judges found that the doctors had been negligent and sentenced them each to a term of ten years’ imprisonment. In contrast to the Manado District Court, the cassation panel decided that the doctors had been negligent for not consulting the patient’s health records, for failing to warn of the operation’s risks, and for negligently performing the operation itself. The panel also found that the signature on the consent form had been forged. This decision was not well received in the medical community, and was even condemned by some politicians. Thousands of doctors engaged in strike action and threatened to stop operating, fearing that mistakes might lead to their criminal prosecution.Footnote ¹⁷¹

The doctors lodged a PK application with the Supreme Court. A new five-judge panel overturned the cassation decision that Alkostar had chaired and ordered that the doctors be released from prison. In their application, the doctors argued that the cassation panel had ignored exculpatory evidence presented at first instance, including the findings of the Medical Board and expert witnesses. The PK panel agreed that the Medical Board’s no-negligence finding should have been accorded significant weight, as should the testimony of the expert witnesses who found no fault in the performance of the operation. The panel also accepted that additional tests and risk warnings were unnecessary in emergencies, into which category the caesarean operation in this case fell.

The first-instance and PK judgments raise questions about whether Alkostar and the other cassation panel members adequately considered defence arguments. The cassation case file, available on the Supreme Court’s website, comprises a summary of the Manado District Court’s holding (but not its reasoning) and the grounds of appeal from the prosecution. It contains no defence submissions, nor any evidence adduced or arguments made by the defence at first instance. No explanation was given for this, leaving the impression that the cassation panel might not have considered defence evidence or arguments when deciding the appeal.

The PK judgment also does not clearly demonstrate that the judges objectively assessed witness testimony. The prosecution’s description of the witness testimony, upon which the cassation court apparently solely relied, did not accurately capture the testimony as it appeared in the first-instance judgment. In particular, the witness statements included in the cassation documents described the operation, but did not include the witness conclusions that the death was neither foreseeable nor preventable. The Alkostar panel also appeared to rely on the arguments made by prosecutors without regard to the evidence upon which those arguments rested. Prosecutors claimed that the testimony indicated that the doctors were negligent, but the witness testimony summaries they provided in their cassation submissions did not suggest that the doctors had made errors. The cassation panel simply asserted that the first-instance court had made mistakes, without identifying those mistakes, and without providing any reasons.

It is difficult to see how the cassation panel could have concluded this had it read the first-instance decision, even cursorily. The expert testimony heard in the Manado District Court—from both prosecution and defence witnesses—pointed unequivocally away from any finding of negligence. Not a single medical witness found fault with anything the doctors did in the lead-up to or during the operation. And, as for the failure-to-warn claim, only the Manado Court was able to see the deceased’s parents testifying and, therefore, was able to judge their credibility as witnesses. Surely, the Manado judges were in the best position to determine whether to believe them or the doctors. As in Bantleman, this decision appears to provide the opposite of what one might expect from a model judge.

4.3 The Antasari Azhar case

An Alkostar-led cassation panel treated defence evidence and arguments in a similarly dismissive way in a case involving former Anti-corruption Commission head Antasari Azhar.Footnote ¹⁷² The South Jakarta District Court had convicted and sentenced him to 18 years in prison for ordering the assassination-style murder of Jakarta businessman, Nasruddin Zulkarnaen, on 14 March 2009.Footnote ¹⁷³ He was shot twice in the head through the window of his car after playing golf.

Prosecutors alleged the following. Azhar had experienced a paid sexual encounter with Zulkarnaen’s wife, Rhani Juliani.Footnote ¹⁷⁴ Zulkarnaen then threatened to publicly reveal the incident unless Azhar helped him get a senior position in a state-owned pharmaceutical company and to obtain licences and tenders. Zulkarnaen’s threats and intimidation intensified, prompting Azhar to act. Azhar first asked the chief of police to investigate Zulkarnaen and Juliani for using narcotics. The police conducted raids but found no evidence.Footnote ¹⁷⁵ He then ordered Anti-corruption Commission employees to tap Zulkarnaen’s phone, but discovered nothing to use against him. Becoming increasingly desperate in the face of continuing threats, Azhar sought help from Sigid Haryo Wibisono, who ran a newspaper. Wibisono arranged a meeting between Azhar and Williardi Wizar, former South Jakarta police chief. Azhar told Wizar of the blackmail and asked Wizar to protect him from Zulkarnaen. In return, Azhar would help Wizar to get promoted. Wibisono offered to provide the necessary “operational funds.” Through a middleman, Wizar identified two people who could carry out the murder, if requested. After Azhar’s wife received a phone call hinting at an extramarital encounter involving her husband, Azhar sent a threatening SMS to Zulkarnaen. Clearly, Zulkarnaen paid no heed. Through various intermediaries, Wibisono paid the hitmen. But, before he finalized the transfer, he called Azhar to clarify that the money was a loan. Azhar replied that he would “repay it later.” All this, prosecutors said, fulfilled the elements of the crime of premeditated murder at Azhar’s behest.

The two hitmen, Wibisono and Wizar, were convicted for their respective roles in the assassinationFootnote ¹⁷⁶ ; at issue in this trial was Azhar’s connection to that assassination. However, as with other cases discussed in this article, there were glaring holes in the prosecution’s case. In particular, it had no hard evidence suggesting Azhar’s guilt, and even the evidence it had was of questionable validity or probative value.

At trial, serious doubts were raised about whether the murder weapon produced by the prosecution was the weapon used to murder Zulkarnaen. The gun produced was a Smith and Wesson .38 in such poor condition that, according to a ballistics expert, it could not have been accurately fired twice into the victim’s head.Footnote ¹⁷⁷ Worse, according to the autopsy, the bullets that killed Zulkarnaen were 9mm, which cannot be fired from a Smith and Wesson .38. The person who performed the autopsy claimed that senior police asked him to remove the reference to 9mm bullets from his report, but he refused. Of course, all this raises questions about the fundamentals of the prosecution case against not only Azhar, but also the others found guilty of involvement in the alleged plot.

Of central importance to the case against Azhar was the testimony of one witness: Sigid Haryo Wibisono. Only he testified that Azhar had asked Wizar to help him with Zulkarnaen and that Wibisono loaned Azhar the funds to pay for the assassination. Without this testimony, very little, if any, evidence indicated that Azhar asked Wizar to do anything. Both Wizar and Azhar denied that any such request was made or received. But the testimony of a sole witness is insufficient to establish guilt under Indonesian law. To be considered “valid evidence,” and hence usable to demonstrate guilt, witness testimony must be corroborated by at least one other witness (Article 185(2) of the KUHAP) or another piece of valid evidence (Article 185(3)). One witness means no witness (unus testis nullus testis).Footnote ¹⁷⁸

Also noteworthy is that the testimony that Wizar gave at trial contradicted his police record of interview, which states that Azhar asked Wizar to have Zulkarnaen killed. At trial, Wizar testified that senior police pressured, and eventually ordered, him to change his initial police statement (which did not incriminate Azhar) to implicate Azhar.Footnote ¹⁷⁹ He later revoked that statement, but it remained in the case dossier.Footnote ¹⁸⁰ During the trial, prosecutors argued that Wizar’s record of interview should be admitted as stand-alone documentary evidence. This is a commonly attempted tactic employed by prosecutors if a person interviewed by police does not attend to give evidence, or attends but gives evidence inconsistent with the content of the statement. However, a plain reading of the KUHAP suggests that a record of interview is not valid documentary evidence. Article 184(1)(c) specifies that “official documents” are produced by “public officials” about “events or circumstances they heard, saw or experienced.” They include official reports (berita acara) (Article 187(a)); documents containing expert opinions (Article 187(b)), including affidavits; and “other documents,” provided they “have a connection with the substance of another piece of evidence” (Article 187(c)). The problem with treating a record of interview as a document is that a police officer (a “public official”) who witnesses or draws up a record of interview cannot possibly verify the accuracy or truth of what the interviewee declared therein; after all, the officer will not usually have personally experienced the events or situation described in the statement as Article 184(1)(c) requires. Rather, the officer can only attest that the interviewee made that statement. In any event, the court should probably not have accorded much weight to Wizar’s statement, given that he claims to have significantly revised and withdrawn it.

Even in the indictment itself, many of Azhar’s alleged statements, which prosecutors claimed indicated an intent to kill, were equivocal and vague, referring only to “pacifying” Zulkarnaen, “stopping the terrorising,” or safeguarding Azhar. These statements, if they were made at all, could easily be references to pursuing Zulkarnaen for narcotics offences or taking other action against him. Similarly, at trial, the two Anti-corruption Commission employees whom Azhar asked to tap Zulkarnaen’s phone testified that they heard Azhar say: “It is either him or me that will be dead.” The court relied almost exclusively on this statement as evidence that Azhar had the requisite intent to kill Zulkarnaen.Footnote ¹⁸¹ Yet, the court did not explain the significance of this alleged statement. Azhar’s words certainly did not unequivocally indicate that he planned to order Zulkarnaen’s killing; and the prosecution led no evidence of a threat to kill Azhar, which might equally be inferred from his statement.

The SMS that prosecutors alleged Azhar sent to Zulkarnaen after Azhar’s wife received the phone call was also ambiguous. The SMS read: “Sorry, Mas, only the two of us know about this problem. If you blow it up, you know the consequences.” Again, concluding that this message carries a threat of murder requires a major interpretative stretch. The message is too ambiguous to be considered threatening itself without, at the very least, evidence being led to identify the consequences that Azhar intended. Azhar could well have been threatening that, if Zulkarnaen continued harassing him and his family, he would perform no favours that the prosecution alleged Zulkarnaen sought. Worse, prosecutors could not conclusively demonstrate that Azhar sent the message, if it was sent at all, or even whether an SMS was a type of admissible evidence.Footnote ¹⁸²

Nevertheless, Azhar was convicted and lost appeals to Jakarta’s high court and the Supreme Court in both a cassation and a PK. Azhar chaired his cassation, which will be the focus of analysis here.Footnote ¹⁸³

A two-judge-to-one majority of the cassation panel, which included Alkostar, accepted the entirety of the prosecution case, deciding that the lower courts had “considered relevant legal issues correctly, that is, that there was a causal connection between the acts of the defendant and the death of the victim.”Footnote ¹⁸⁴ It identified no flaws in the prosecution’s arguments or evidence, which the defence had highlighted in its memorandum of cassation. The majority simply set out the facts as the prosecution had alleged at the outset,Footnote ¹⁸⁵ mentioning the meetings between Azhar, Wibisono, and Wizar at which Azhar had asked for help to “stop the terror,” and the payment of Wibisono’s funds to the hitmen via Wizar and a middleman. For the majority, this demonstrated “close co-operation” between the three. Here, the cassation panel ignored entirely the inconsistency of the evidence provided at trial and the evidentiary controversies about the retraction of statements and the murder weapon. The majority did not mention these inconsistencies and controversies, much less explain why it did not consider them. It also accepted the testimony from the two Anti-corruption Commission employees as evidence that Azhar intended to kill Zulkarnaen, as was Azhar’s promise to repay Wibisono.

The sole dissenter on the panel was Prof Dr Surya Jaya. He disagreed with the lower courts’ ignoring the ballistic expert who testified that the gun that prosecutors had produced could not have been used to kill Zulkarnaen. For Jaya, this raised questions about whether those convicted of the assassination were guilty and should not have been blindly ignored by the lower courts. This was central to the prosecution’s case against Azhar; he could hardly be found guilty of ordering a murder if the people he allegedly conspired with did not commit the crime.Footnote ¹⁸⁶ Regardless, Jaya found, the evidence at trial did not prove that Azhar ordered anyone to murder Zulkarnaen.Footnote ¹⁸⁷ None of Azhar’s alleged statements even indicated a clear intent or plan to kill anyone.Footnote ¹⁸⁸ Jaya also found that the SMS could not be used as evidence, but that, even if it could, it did not indicate that the defendant had ordered the killing.Footnote ¹⁸⁹ He would have acquitted Azhar.

The case against Azhar was so deeply flawed, and the evidence presented so weak and equivocal, that it is difficult to understand how Alkostar could have found him guilty of masterminding Zulkarnaen’s assassination. There was not one piece of incontrovertible evidence upon which he, along with other judges who had heard Azhar’s trial and appeals, hung their decisions. Surely one of their main functions is protecting defendants from such prosecutions. Particularly relevant here is that the success of Indonesia’s Anti-corruption Commission under Azhar’s leadership had made him many powerful and well-connected enemies, particularly in law enforcement. Rumours circulated that prosecutors had targeted him in revenge for the Commission’s successful pursuit of prosecutor Urip Tri Gunawan, discussed above, which had exposed entrenched corruption in the public prosecution service. This seems to be reflected in the appointment of 27 prosecutors to work on Azhar’s prosecutionFootnote ¹⁹⁰ and their pursuit of the death penalty, which is usually reserved for narcotics offenders, terrorists, and the most sadistic of murderers.

Around the same time as Azhar’s trial, the Anti-corruption Commission had also been targeting senior police, which prompted the police to charge two other commissioners with offences that were later proved beyond doubt to be trumped up.Footnote ¹⁹¹ It is probably not such a stretch to assume that police also helped to manipulate the case against Azhar, this time successfully. After all, prosecutors returned the file of evidence on Azhar to the police four times, seeking additional evidence.Footnote ¹⁹² This suggests that the evidence against Azhar was weak, leading the police perhaps to feel pressure to manufacture some. The courts, too, undoubtedly felt threatened by the Commission and Azhar, which had become more assertive and had the judiciary in its sights. Yet, still, one might have expected Alkostar to have lent greater support to Azhar and the Commission by taking a more critical view of the evidence presented by the prosecution in Azhar’s case. This would have been consistent with both his then-growing reputation for supporting the anti-corruption movement and the proper objective exercise of judicial power.

Since his release on parole in 2017, Azhar has publicly accused former President Susilo Bambang Yudhoyono of being behind his conviction, pointing to the Commission’s investigation, under his leadership, of Aulia Pohan, whose daughter is married to Yudhoyono’s oldest son. Pohan was ultimately convicted of corruption and sentenced to four and a half years in prison.Footnote ¹⁹³ Giving weight to claims that Azhar’s conviction was political was his pardoning, in early 2017, by Yudhoyono’s successor, Joko Widodo, even though he was already out on parole.Footnote ¹⁹⁴ On one view, this might constitute implicit acknowledgement that Azhar should not have been convicted in the first place.

4.4 The Ahok case

One of the most politically polarizing cases in Indonesian legal history was the Ahok case—the blasphemy trial of the then-serving governor of Jakarta, Basuki Tjahaja Purnama (known as Ahok).Footnote ¹⁹⁵ Before becoming president of Indonesia, Joko Widodo had been governor of Jakarta, with Ahok as his deputy. Ahok became Jakarta governor when Widodo ran for the presidency. While in office (November 2014–April 2017),Footnote ¹⁹⁶ Ahok was widely considered effective and honest but, because he was Christian and Chinese-Indonesian, more conservative Muslim groups despised him and urged Muslims not to vote for him in the 2017 gubernatorial elections.Footnote ¹⁹⁷ Senior Muslim figures even suggested that the Koran prohibited Muslims from voting for him, pointing to Surat Al Maidah 51 (‘Verse 51’) of the Koran, which warns against Muslims having Jews and Christians as their auliya. There is much debate about what auliya means—particularly whether it means “allies,” “friends,” “protectors,” or “leaders.” But some influential Muslims began using it to mean “leaders,”Footnote ¹⁹⁸ including governors.

In late September 2016, Ahok gave a speech to a group at a fish market about his administration’s programmes. Finding the attendees inattentive, he goaded them by saying that they probably would not vote for him anyway because they had been “misled by those using Verse 51” (emphasis added). This drew no reaction from the audience, but a major furore erupted when the speech was uploaded to YouTube, with the word “using” edited out. Without “using,” what Ahok said could be interpreted to imply that the Koranic verse itself was misleading or a lie, rather than that people were using it to mislead.Footnote ¹⁹⁹ Either way, it was alleged that Ahok had insulted the Koran, Islamic scholars (who were primarily responsible for interpreting or “using” the Koran), or both. The Majelis Ulama Indonesia (Indonesian Council of Islamic Scholars, or MUI) voiced public outrage about the speech and demanded his prosecution for blasphemy, using the opportunity to repeatedly emphasize that Muslims should not elect him. The Front Pembela Islam (Islamic Defenders’ Front, or FPI) group—long associated with campaigns and protests, some of them violent, to promote goals of more conservative Islam—organized mass rallies in Jakarta in November (attended by about 150,000–250,000 people) and in December (about 500,000–750,000) that demanded Ahok’s prosecution for blasphemy (the common translation of penodaan agama, literally “denigration of a religion”).Footnote ²⁰⁰ Police and prosecutors duly met these demands and Ahok was brought to trial in the North Jakarta District Court.Footnote ²⁰¹ He also lost the election.

Many rightly presumed that the threat implicit in the ability of conservative groups to mobilize en masse would ultimately lead the court to convict him. Less predictable was the final demand (tuntutan) of prosecutors, read at the end of Ahok’s trial, in which they asked the court to find him guilty of a lesser offence under Article 156 (which prohibits publicly expressing enmity, hate, or contempt towards a particular group) and to impose a suspended sentence. The court refused, deciding that the evidence supported the conclusion that Ahok had denigrated a religion as prohibited under Article 156a of the Criminal Code (Kitab Undang-undang Hukum Pidana, or KUHP) and, in May 2017, sentenced him to two years’ imprisonment. In reaching this decision, the court accepted forensic evidence from police that the video of his speech uploaded to YouTube had not been doctored. But the court found that, even if it had been, Ahok had still used the verse in connection with the concept of deception, which had belittled, degraded, and offended the Koran itself.

Ahok lodged an appeal with the Jakarta High Court,Footnote ²⁰² but then withdrew it, citing concerns that pursuing it might incite further protests and instability.Footnote ²⁰³ Instead, he waited for the outcome of the trial of the person who uploaded the YouTube video of his speech, Budi Yani, and then lodged a Supreme Court PK. In 2018, the Bandung District Court imprisoned Yani for 18 months for “spreading information directed at causing hate or enmity based on religion or ethnicity” and “altering a video owned by another person or the public”—both offences under Indonesia’s Electronic Information and Transactions Law.Footnote ²⁰⁴ Ahok’s legal team’s strategy was using Yani’s conviction to attack Ahok’s, focusing on the contradictory conclusions reached in the different trials about the same uploaded video. While the North Jakarta District Court had found that the video was not doctored, the Bandung District Court found Yani guilty of doctoring that very same video.

Unfortunately for Ahok, the Yani case did not ultimately assist him, with the PK panel, chaired by Alkostar, finding that the lower court had made no judicial error, having based its decision on the available evidence and the applicable law.Footnote ²⁰⁵ The lower court had also been “independent, honest [and] impartial.”Footnote ²⁰⁶

Importantly, the PK judges decided that the Yani video was irrelevant, because Ahok’s speech itself contained the blasphemy.Footnote ²⁰⁷ The panel stated that “the people who reported the applicant to police in the blasphemy case did not base their reports on the uploaded information from Budi Yani, but from a variety of other sources.”Footnote ²⁰⁸

For the court, Ahok’s crime was simply a precursor to Yani’s and there was no causal connection between them.Footnote ²⁰⁹ Worse, the panel declared that Ahok had not “genuinely used his right to object to the judex facti decision—that is, by employing avenues of appeal” to the Jakarta High Court. For the panel, by withdrawing his appeal to the high court, Ahok had signified that he “already accepted the reasoning and holding” of the decision of the North Jakarta District Court.Footnote ²¹⁰

The PK panel’s decision, which was reportedly completed within only 13 days of Ahok’s lawyers’ lodging the application,Footnote ²¹¹ was unconvincing, for several reasons. Most problematic was the PK panel’s finding that the doctoring of the video was irrelevant. For the judges, blasphemy occurred regardless of that video. But this conclusion is not supported by the evidence presented in Ahok’s trial and in fact directly contradicts it. A close reading of the witness testimony reported in the trial documents clarifies that not one person who directly heard his speech noticed any statement that was offensive to Islam in it. Rather, the witness testimony about what Ahok said came from those who saw the video and was drawn solely from their viewing of the video. But for that video, there would have been no witness testimony presented at trial about what Ahok said.

The PK panel ignored this evidentiary obstacle and relied on the video for proof of the content of Ahok’s speech. Far from being irrelevant, the video was, therefore, more central to the case against Ahok than the North Jakarta District Court and the PK panel recognized. Its providence and veracity should, therefore, have been critical to the case against him, and the PK panel should have examined more closely what Budi Yani did to it before uploading it. Given that the uploading of the video was a criminal act, it is unclear why the PK panel did not consider excluding it altogether.

The PK panel’s reference to Ahok having “accepted the decision” was, in my view, quite spurious. To be sure, Article 234(1) of the KUHAP does say that, if the defendant or prosecution does not appeal a decision within seven days, they are “considered to have accepted the decision.” However, this does not mean that the parties have accepted the correctness of that decision—it just means that they have decided not to appeal. Equally questionable was the PK panel’s claim that Ahok had not used his PK rights “genuinely” because he did not appeal to the Jakarta High Court first. Nowhere does Indonesian law require a defendant to appeal to a high court before launching a PK; all that is required is that the decision sought to be reopened is final and enforceable, which, for a first-instance decision, occurs seven days after the decision is handed down. Had Ahok immediately appealed, he could not have used the Budi Yani case as a ground for appeal, because that case had not concluded.

When Alkostar was announced as the chairperson of the panel of judges to hear Ahok’s PK, questions were raised about whether he should recuse himself. As mentioned, Alkostar is known for being a devout Muslim. But he has also been linked to FPI—the very group that called for Ahok’s arrest and organized the demonstrations against Ahok in Jakarta.Footnote ²¹² FPI’s leader, Rizieq Shihab, who was prominent in condemning Ahok, even called on the Supreme Court to reject Ahok’s PK,Footnote ²¹³ while also claiming to having been “close” to Alkostar. Shihab had, for example, been invited to speak at an event in March 2014 celebrating Alkostar’s achievements held by the Alumni Association of the Islamic University of Indonesia (UII), with which Alkostar has long been associated, including as a lecturer. Shihab also claimed that, before Alkostar’s appointment to the Supreme Court, Alkostar had approached FPI in response to media reports alleging that FPI had engaged in illegal activities. According to Shihab, Alkostar then became a legal adviser to FPI, including its board, and at one stage was visiting FPI headquarters every week or so, including to teach FPI personnel about criminal and constitutional law. Shihab also said that Alkostar eventually led FPI’s Department of Justice and Human Rights until his appointment to the Supreme Court.Footnote ²¹⁴ The truth of Shihab’s claims has been disputed, but Alkostar has not, to my knowledge, publicly commented on his connection with Shihab and FPI, even to reject it.Footnote ²¹⁵ Nevertheless, there appears nothing to suggest a continuing connection when Alkostar was handling Ahok’s PK.Footnote ²¹⁶

While the media reporting this alleged connection did not openly claim that Alkostar would be biased against Ahok, the implication was clear enough to prompt the Supreme Court public relations manager to allay concerns about Alkostar’s objectivity. To the media, he announced that, while Alkostar and Shihab may have been close in the past, there was no intervention in this case and Alkostar would handle the case impartially.Footnote ²¹⁷ Nevertheless, it is unclear why the case was allocated to him or why, once the alleged connection was revealed in the media, he did not recuse himself, to avoid the perception of bias. After all, there are many Supreme Court judges who could have replaced him on the panel. Unfortunately, as discussed, the court’s reasoning in Ahok’s PK was highly problematical from a legal perspective. This does nothing to dispel suspicions of bias. Of course, on any view, a model judge should not convey bias, or give the impression of it. Yet, again, Alkostar’s involvement in this case—and his panel’s decision to uphold Ahok’s conviction—did not appear to fundamentally alter perceptions of him as a good judge.

4.5 The Wongso case

Few of Alkostar’s appeals have attracted more intense domestic and international controversy than the Jessica Wongso case. In 2016, after a four-month trial, the Central Jakarta District Court found Wongso, an Australian permanent resident, guilty of the premeditated murder of her friend, Mirna Salihin, and sentenced her to 20 years’ imprisonment. The court accepted the main threads of the prosecution’s version of events contained in the indictment, read out at the beginning of the trial. Put briefly, this version was: Wongso arranged to meet Salihin and their friend, Hani Juwita, for coffee at an upmarket mall, arrived early, bought Salihin a coffee, laced it with cyanide in the café after obscuring the view of the café’s CCTV cameras with shopping bags, and then watched on as Salihin drank the coffee and collapsed. Salihin died en route to hospital.

Although the incident was not initially considered suspicious, police began investigating Wongso for the murder, apparently for five main reasons. First, police thought she had acted suspiciously at the café. The café’s CCTV footage showed Wongso arriving well before Salihin and Juwita, and walking around the café looking for a table, which she reserved. She left the café and returned with three large shopping bags, which she put on the table directly obscuring the CCTV camera covering that table. She ordered drinks for her friends before they arrived, and the CCTV footage appears to show her making some movements behind the bags, perhaps near the drinks. When Salihin drank the coffee and collapsed, Wongso did not help her, but stood idly by, wringing her hands. Second, Juwita and café staff tasted the coffee after Salihin collapsed. They said it tasted horrible and felt sick afterwards. Third, police thought Wongso might have disposed of evidence. After Salihin’s death, Wongso returned to her parents’ house in Jakarta (where she was staying) and reportedly asked the housekeeper to throw out the pants she wore to the café, saying that she had ripped them when she got into the car to take Salihin to hospital.Footnote ²¹⁸ Police alleged that she did this so that they could not test her clothes for cyanide. Fourth, police thought she had a motive to kill Salihin. They had been friends during their studies at a design school in Sydney, Australia, but their relationship appeared to break down, primarily because Wongso was jealous of Salihin for having a fiancé. Finally, police uncovered what they thought were violent tendencies and several suicide attempts in Australia. Police heard these things about Wongso from Australian colleagues and friends, who also opined that she was mentally unstable. Australian Federal Police confirmed the suicide attempts and also revealed that Wongso’s former boyfriend had obtained an Apprehended Violence Order against her.

Unlike Bantleman, which was heard in a closed court because it involved allegations of child sexual assault, and the Ahok case, which was partly closed because of fears that coverage could trigger public unrest, Wongso’s trial was broadcast live on three national television stations. Media coverage and analysis of the trial were intense, with many criminal-law practitioners and academics providing almost continuous commentary on court procedures, legal arguments, and the evidence presented against her. But, as in the other cases discussed in this section, the evidence against the defendant was very slim. Like Antasari, there was so little of it that prosecutors were initially reluctant to prosecute, sending back the case dossier to the police several times and asking for more evidence.Footnote ²¹⁹

Perhaps the most glaring hole in the prosecution case was the inability to definitively establish that Salihin died of cyanide, or any type of, poisoning.Footnote ²²⁰ No autopsy was conducted and toxicology tests conducted by police 70 minutes after her death revealed no cyanide in her gastric fluid, bile, liver, or urine.Footnote ²²¹ One National Police Hospital expert testified that Salihin’s intestines were corroded and her mouth was blackened, which was consistent with cyanide poisoning. Small traces of cyanide were found in her stomach fluid in tests conducted several days after her death, but, as University of Indonesia forensic pathologist Jaya Surya Atmaja testified, this was probably from embalming chemicals used to preserve her body.Footnote ²²²

No one saw Jessica put cyanide into the coffee that Salihin drank and Jessica never admitted to doing so. In the absence of direct evidence, prosecutors relied heavily on café CCTV footage that showed Wongso’s movements behind the shopping bags that she had put on the table. Prosecutors alleged that she was putting cyanide in the coffee at this time, but could not prove this, much less demonstrate what form the cyanide took and how she could have administered it. They could not even prove that she took anything from her bag, nor refute defence evidence that she was sending text messages at the time.

The only indication that cyanide might have been involved was a police forensic report that detected a lethal dose of cyanide in a coffee sample that the café staff gave police. But serious questions were raised at trial about the handling of that evidence, which caused doubt about precisely what was tested and where it came from. Café staff testified that they gave police the cling-wrapped glass that Salihin had drunk from, with the contents poured into an empty water bottle for transportation.Footnote ²²³ However, the laboratory results indicated that tests had been conducted on coffee in the glass and coffee in the bottle, and that there were slightly different concentrations of cyanide in each. No explanation was given as to why any coffee was poured back into the glass and tested separately from the coffee in the bottle. Worse, it appears that the amount of coffee tested exceeded the capacity of the glass, at least after Salihin and others had drunk from it.Footnote ²²⁴

Again, like Bantleman, because there was very little reliable physical evidence, the prosecution relied on expert witnesses, primarily from doctors and psychologists, who opined about Wongso’s mental state and drew implications from the CCTV footage.Footnote ²²⁵ Their testimony, and the court’s use of it, were highly questionable. For example, one testified that the movements behind the shopping bags were “suspicious.”Footnote ²²⁶ Another testified that it was unusual for someone to place their bags on a table when the seat beside them was vacant. It is hard to see how this testimony falls within the expertise of those witnesses.

Particularly concerning was the evidence of one expert who testified that Wongso’s former boss in Australia reported hearing Wongso say: “If I wanted to kill anyone, I know how to do it. I could use a gun. And I know the right dosage.”Footnote ²²⁷ Unfortunately, Wongso’s former boss did not appear at trial, so her statement was likely hearsay, even though it was conveyed through the testimony of the expert. (The reader may recall that the judges in Bantleman’s case similarly accepted the evidence of psychologists, which was also likely hearsay, because it was really only what the alleged victims told them.) But the court seemed to accept the statement of Wongso’s former boss as valid evidence, and drew implications about Wongso’s mental state from it, including that she was capable of murder and knew how to administer poison. Even if the statement was not hearsay, drawing these implications is hard to justify. Wongso’s alleged statement to her former boss was particularly vague. She did not, for example, mention using cyanide or any other drug by name. Worse, Wongso’s statement was a response to hospital staff’s refusing to discharge her after she had allegedly attempted suicide, perhaps because they were concerned that she would try again. She could well have been referring to killing herself, rather than another person. Yet the court did not convey this context when it set out this quote in its judgment.Footnote ²²⁸

Another clear parallel with Bantleman was the claim, made by the defence, that their arguments and evidence were ignored without explanation from the judges. For example, several experts testified that more cyanide would have been detected in the stomach of a person fatally poisoned and cyanide would also have been present in the bowels and liver. One expert also explained that the onset of cyanide poisoning typically occurred up to 30 minutes after ingestion, not two minutes, as the prosecution had claimed.Footnote ²²⁹ Other typical indications of cyanide poisoning mentioned by defence experts, including red skin, the burnt-almond smell of cyanide, and poison in the stomach, were not present, but the court did not address this.Footnote ²³⁰ The court also failed to reconcile other evidence that seemed inconsistent with the allegations made against Wongso in the indictment. These included that others, such as Juwita and the café owner, tried the coffee but did not suffer the same fate; and no cyanide was ever detected at the café or on Wongso. Her pants were never found and her housekeeper did not testify.

The Central Jakarta District Court convicted Wongso. She then appealed to the Jakarta High Court but was unsuccessful,Footnote ²³¹ so her lawyers appealed to the Supreme Court. Although their arguments were numerous, one theme ran through many of them: the Central Jakarta District Court had ignored key defence-led evidence that cast significant doubt on whether Salihin had died of cyanide poisoning and, if she had, whether Wongso had administered it. Indeed, the defence asserted, the district court had ignored the testimony of all ten of its witnesses, but did not explain why the prosecution’s evidence was preferable.Footnote ²³² The defence gave many examples of this, including the district court’s rejection of its evidence about Salihin’s cause of death. As mentioned, no autopsy was performed. The district-court judges had acknowledged that an autopsy should have been conductedFootnote ²³³ because it could have determined Salihin’s cause of death. But, rather than concluding that Salihin’s cause of death was therefore unknown, the court preferred to use the stomach-content toxicology test that the police conducted 70 minutes after Salihin’s death to conclude that Salihin had died of cyanide poisoning.Footnote ²³⁴ In the cassation memorandum, the defence emphasized that it had demonstrated, using highly credible expert testimony, that more cyanide would have been detected in Salihin’s stomach if she had died from cyanide poisoning; and the small amount detected was the likely result of chemicals used in the embalming process. The district court should not, therefore, have concluded that Salihin died from cyanide.

For the defence, the only way to reconcile the negligible amount of cyanide in Salihin’s stomach with the lethal amount found in the coffee itself was for the cyanide to have been added to the coffee after Salihin had drunk it. Adding weight to this view was that Hani and café staff tasted the coffee but did not collapse and die, as did Salihin.Footnote ²³⁵ Yet, if the coffee had the high levels of cyanide detected in the laboratory test—7,400 mg/l and 7,900 mg/l of cyanide in the glass and bottle, respectively—then they too would likely have perished.Footnote ²³⁶ Also consistent with this claim was the discrepancy between the amount of coffee in the glass—at least after consumption by Salihin, Juwita, and the café staff—and the amount of coffee tested by the police laboratory. The capacity of the glass was 370 ml, but café staff testified that café practice was always to leave 1 cm of empty space at the top of the glass, meaning that only 320 ml of coffee would have been poured into it.Footnote ²³⁷ Each sip of coffee was estimated to have removed a further 20 ml. If the three people who tasted the coffee had sipped this amount, then only 260 ml would have remained for testing. But the laboratory report specified that the volume of coffee in the glass was 150 ml and the volume in the bottle was 200 ml.Footnote ²³⁸

Unfortunately, the Supreme Court cassation panel, chaired by Alkostar, did not attempt to directly address the defendant’s contentions, or even acknowledge weaknesses in the evidence that the prosecution had put forward. Of course, the defence had, in their memori, complained about the very same treatment from the lower courts. The Supreme Court’s decision was a boilerplate response, holding that the district court had:

The court reached this decision in only a few pages, first setting out the facts that it accepted to have been proved, which followed the prosecution’s version.Footnote ²⁴⁰ So, for example, the court rejected the defence claim that, because Salihin’s initial stomach-content tests did not contain cyanide, Salihin could not have died from cyanide poisoning. This was because cyanide was found in the coffee samples and there were traces of cyanide in her stomach several days after her death (even though those amounts were negligible).Footnote ²⁴¹ The Supreme Court ignored the problems with the forensic testing of the coffee raised by the defence and that others who tasted the coffee did not fall ill. The court flatly stated that it would not consider any more of the defence’s arguments, labelling them as “mere repetition of facts brought forward at the trial that were dealt with by the district court.”Footnote ²⁴² A new legal team lodged a PK in 2018, but the Supreme Court did not disturb the cassation judgment.Footnote ²⁴³ Her trial lawyers plan to lodge another appeal in 2020.Footnote ²⁴⁴

Perhaps the most problematical aspect of the entire Wongso saga was a conversation between Alkostar and then-police chief General Tito Karnavian. This conversation took place at a wedding while Wongso’s case was on foot in the Central Jakarta District Court. The discussion was reported widely,Footnote ²⁴⁵ including in Karnavian’s interview for the book produced by the Supreme Court to celebrate Alkostar’s retirement.Footnote ²⁴⁶ Karnavian said that he asked Alkostar about the case, who replied:

Of course, this conversation was arguably improper, and could be taken to indicate prejudgment by Alkostar, who, as discussed, upheld Wongso’s conviction on cassation. It also seems to clearly violate the Supreme Court’s own ethics code, which prohibits judges from talking extra-judicially about a case that they or other judges have handled or are handling.Footnote ²⁴⁸