Case Overview


Written by UK legal advisor.

 

Introduction 

  1. Wijanto Tirtasana (“WT”) founded the Indonesian company Mitra Cipta AGRO (“MCA”) in 2017. Its business consisted of the importation and sale of fertilisers used in palm oil production. WT and his wife Lily Tjakra owned 40% of the shares and WT conducted the business of the company. 20% of the shares were owned by his sister-in-law, Dewi Farida (“DF”), and the remaining 40% were owned by Margaret Rampalodji, the wife of Rahmady Effendi Hutahaean, (“Fendi”) a customs officer. Fendi’s contribution to the business was the provision (in exchange for the shares put into his wife’s name) of the initial working capital of the company. 

  2. The business flourished. MCA’s fertilisers were regarded by customers as better than competing fertilisers. WT’s know-how about purchasing them and the particular needs of individual palm oil producers enabled MCA to stay in the forefront of the business. Between 2017 and 2023, the company imported a total of about US$17m worth of fertiliser.

  3. Around October 2023, however, the shareholders fell out. DF and Fendi, controlling between them 60% of the shares, engineered WT’s departure from the company. Since then, lacking WT’s know-how and drive, the company has not thrived. DF and Fendi have started civil proceedings against WT alleging that while he was in charge of the company he misappropriated its funds. WT vigorously denies these allegations.

  4. More details of the dispute between the shareholders in MCA can be found on the website https://www.wijantotirtasana.com.

The Arrest of Lily Tjakra

  1. In parallel with the civil proceedings, investigations are being made by the Indonesian Police into alleged criminal conduct by WT. No formal charges have been laid, though WT has been told that on the basis of allegations made by DF, they are considering charges of money laundering. 

  2. WT is confident that the charges are entirely without substance. He believes that the criminal investigations were provoked by DF and Fendi in order to put pressure on them to settle the civil proceedings.

  3. WT and Lily Tjakra have both been interviewed by the Police, and have sought to co-operate with their enquiries. WT was the managing director of the company, and personally conducted its negotiations with suppliers and customers. Lily was not personally involved in these matters. Nevertheless, WT has not been arrested, yet Lily was arrested on 2 August 2024, and has been held in custody ever since.

  4. No adequate explanation has been given for her detention. She has not been served with any documents setting out the offences she is accused of, and there has been no judicial hearing to consider the lawfulness of her continued detention. 

  5. Matters are made worse by the facts that Lily is a sick woman: she has recently had treatment in the US for serious cancer. 

  6. Given that WT was the effective manager of the company, and has not himself been imprisoned, and given that he has voluntarily attended for interviews by the Police, there seems to be no possible need or justification for the arrest of his wife. WT considers that the real reason for her detention is to increase still further the pressure on him to settle the civil claim brought by DF and Fendi.

Habeas Corpus

  1. It is obviously important that the police and prosecutors should have an opportunity to question those suspected of committing an offence. It is also important that there should be procedures for keeping in custody potentially dangerous suspects, or those who might disappear if released. 

  2. On the other hand, giving the police and prosecutors a free hand in imprisoning suspects runs the risk of putting unfair pressure on the innocent to confess to an offence they did not commit. (In some countries, there is even the possibility of torture being used by unscrupulous policemen or prosecutors.)

  3. That is why it is so important that there should be speedy judicial involvement in the question of whether a suspect should remain in custody, and, if so, what sort of custody should be imposed. (Indonesian law, for example, recognises the possibility of “home custody” as an alternative to custody in a prison.)

  4. The remedy known as Habeas Corpus has been known in Anglo-Saxon jurisdictions for many centuries: in essence, a suspect in custody, or someone concerned about such a suspect, may apply to the Court for an order requiring the custodian to produce the suspect in Court and to justify his (or her) continued detention. This immediately introduces into the case the element of judicial involvement which is so important in respecting the human rights of the suspect. Of course, when the suspect is produced before the judge, the judge may remand him back to custody, or set him free, or impose terms (such as the payment of a bail bond) as a condition of his being set free. 

Habeas Corpus in Indonesia 

  1. Indonesia’s pre-trial procedures are included in a law of 1981 called the KUHAP. According to the headnote of a 2023 article in the International Journal of Educational Research & Social Sciences:  

“As is the case with the implementation of pretrial which is part of a principle of the rule of law which is that   a   rule   of   law   has   various   criteria   and   elements.Based   on   the   foregoing,   the philosophical basis of the pre-trial arrangement in Indonesian criminal law is based on the existence of human rights, namely because Indonesia is a state of law based on Pancasila and  recognizes  human  rights.  The  idea  of  a  pretrial  institution  was  born  from  inspiration derived from Habeas Corpus in the Anglo Saxon judiciary, which provided a fundamental guarantee to the human being of the right to independence.”

  1. Over many years, however, there has been extensive criticism of Indonesia’s pre-trial procedures, and the way they have been applied to enable the police and prosecutors to put unfair pressure on potential defendants by holding them in custody for long periods. A few examples of these criticisms are included as Appendix A to this note.

  2. Appendix B quotes the most relevant provisions of the KUHAP.

  3. Reading those provisions, it is not difficult to read them, particularly Article 77(a), as giving an Indonesian District Court the power to exercise very effective control over pre-trial detention, as discussed in the Indonesian Law Lecturers’ article referred to in §14 above, and it is therefore surprising that (according to the references in Appendix A) they have not hitherto done so.

  4. In the case of Lily Tjakra, WT has told us that he has tried to apply to the District Court for a pre-trial hearing for her, but has been told that any such application must be made through the Police, and that they will not permit one to be made. 

International Obligations 

  1. Indonesia is a party to the ASEAN Convention. Although that Convention has also been criticised for not being effective enough in its protection of human rights, it contains a general provisions about criminal proceedings which, if properly applied, would not permit the current arbitrary detention of Lily Tjakra:

“12:  Every person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty.”


Appendix A

  1. Amnesty International published a report in September 2006 on the latest proposed revisions to the KUHAP expressing serious concerns about the way in which the pre-trial procedures were operated in Indonesia, including the following:

    1. 1. Introduction 

    2. The right to a fair trial is a fundamental safeguard to ensure that individuals are not unjustly punished. It is also crucial to the protection of other human rights, such as the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment (ill-treatment); the right to freedom from arbitrary detention; the right to freedom of expression and association; and, in the case of states like Indonesia which retain the death penalty, the right to life. 

    3. Indonesia’s existing Code of Criminal Procedure (Kitab Undang-Undang Hukum Acara Pidana, KUHAP) determines the procedures and rights of individuals at the different stages of investigation and trial. While the existing KUHAP provides many safeguards for the protection of the rights of suspects and defendants, there are a number of areas where it does not meet international standards for fair trials. Further, those safeguards which the existing KUHAP does contain are often in practice ignored, with adherence to the KUHAP undermined by the absence of any penalty for failing to comply, including the absence of a clear prohibition on the admissibility of evidence obtained illegally. 

    4. The Indonesian government itself has recognised the need to reform the existing KUHAP to provide, among other things, greater legal protection to suspects, defendants, witnesses and victims. Under the auspices of the Director General for Legislation at the Ministry of Law and Human Rights a draft revised KUHAP has been prepared and is currently being discussed at a series of information sessions for members of the legal profession and other interested groups, before a final version is introduced into the national parliament for debate. Amnesty International acknowledges and welcomes the commitment of the Indonesian government to review and reform existing legislation with a view to strengthening human rights protection and the rule of law. There are notable improvements in the draft revised KUHAP. 

    5. However, the organization is concerned that in certain respects the draft revised KUHAP remains inconsistent with international fair trial standards and leaves suspects and defendants, particularly those in detention, vulnerable to human rights violations.

    6. ….

    7. 3.2 Right to challenge the legality of detention and to be brought promptly before a judge or other judicial officer 

    8. The ICCPR provides that: 

    9. anyone deprived of his or her liberty “shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

    10. anyone arrested or detained on a criminal charge “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.”11 The Human Rights Committee has stated that the time taken for this to occur should not exceed a few days.

    11. Under the draft revised KUHAP, only the first of these two rights is provided for. There is no requirement that a person who is arrested or detained be brought promptly before a judge or other judicial officer. The purpose of prompt judicial review is to eliminate the risk of individuals being detained illegally and to reduce the risk of other human rights violations, such as torture or ill-treatment and “disappearances”. Prompt judicial review also allows a judicial officer to ensure that detainees are aware of and can exercise their rights. 

    12. The draft revised KUHAP introduces the new post of Judicial Commissioner, to be appointed from ranks of the District Court Judges specifically to deal with pre-trial issues including challenges to the legality of arrest, detention and investigation. This is potentially a positive development and it is particularly noteworthy that Judicial Commissioners are to be based at or near detention centres to facilitate easier access to detainees. Under the draft revised KUHAP suspects who are arrested and detained have the right to challenge the legality and necessity of their detention before a Judicial Commissioner (sec. 72). The Judicial Commissioner is also authorised to review the legality and necessity of a suspect’s detention at his or her own initiative upon receipt of the warrant authorising arrest or detention (sec. 72). 

    13. However, these provisions do not satisfy the requirement that anyone arrested or detained on a criminal charge be brought promptly before a judge or judicial officer. The procedure for requesting a hearing before a Judicial Commissioner is dependent on detainees being aware of, and in a position to, exercise their right to challenge the legality of their detention. The draft revised KUHAP does not provide that the authorities must, by law, bring all persons arrested or detained before a judge without delay. In the absence of such a requirement, a person may be detained for significant periods of time without being afforded a review of the legality of their detention. 

    14. In fact, under the draft revised KUHAP there is a potential risk of considerable delay before a person in detention is brought before a judge or other judicial authority. The draft revised KUHAP makes provisions as to the maximum times for which a person may be detained as follows: 

    15. A suspect may be arrested and held for 1 day (sec. 18(1)). An investigator, usually a police officer, may detain a person for 30 days, with an extension granted by Chief Attorney General for a further 30 days (sec. 22(1) & (2)). This is a total of 61 days. This is not significantly different to the existing KUHAP, under which the initial detention order was for 20 days and could be extended by a prosecutor for 40 days. 

    16. A prosecutor may detain a person for 30 days with an extension granted by the head of the district court for a further 30 days (sec.23(1)&(2)). This is a total of 60 days. This is longer than under the existing KUHAP, which allowed the prosecutor to make an initial detention order for 20 days which could then be extended by a judge for 30 days. 

    17. A district court judge trying the case may detain a person for 30 days, with an extension granted by the head of the district court for a further 30 days (sec.24(1)&(2)). This is a total of 60 days. This is shorter than under the existing KUHAP where the initial 30 day order could be extended for 60 days. 

    18. There is nothing in the draft revised KUHAP to suggest that investigators, prosecutors and judges are obliged to hear a suspect or defendant or his or her legal representative before deciding whether or not to order his or her detention or to extend the detention. It appears that decisions can be made on the basis of the information in the file. If a suspect or defendant wishes to be heard, then he or she must take steps to challenge the detention either with the investigator or his or her superior (sec 115) or before the Judicial Commissioner. 

    19. When the UN Working Group on Arbitrary Detention considered the time frames for detention in the existing KUHAP, which as noted above are similar to, and in some cases shorter than, those in the draft revised KUHAP, they commented that “the length of permissible delay before presenting the accused before a prosecutor or judge represents a violation of the rights enshrined in article 9, paragraph 3, of the International Covenant on Civil and Political Rights.” They recommended that the relevant provisions be modified accordingly. Specifically, they recommended that “there should be a legal obligation to present the detained person before a judge or any other authority authorised by law to exercise such functions, promptly and in person.”13 

    20. Recommendation: 

    21. The revised KUHAP should require that any person arrested and detained on a criminal charge be brought in person before a judge or other judicial authority promptly. This role could be fulfilled by the Judicial Commissioner. The Judicial Commissioner should, in a timely fashion, review the legality of the arrest, the legality and necessity of further detention and whether the suspect has been advised of his or her rights and is able to exercise those rights. The Judicial Commissioner should also be authorised to enquire into all aspects of the treatment of the suspect.

  2. In February 2014, the Indonesian Institute for Criminal Justice Reform published a very long report on the KUHAP, which included:  

  3. The current discussion of the issue in Wikipædia, contains the following:

    1. Abuse of detention powers

    2. The police can abuse its powers to detain a suspect by using threats of detention to pressure a suspect to confess that he is guilty. In addition, the KUHAP does not ensure that detainees are brought to court promptly. Under the KUHAP, a suspect can be detained for up to 60 days without judicial intervention. For example, if the police detains a suspect for 20 days under Art24(1), a prosecutor can extend this detention for another 40 days under Art 24(2).[49] Please refer to the appendix for more information about how long a suspect can be detained without judicial intervention.

Appendix B