How we see sacred letter in the Newmont case

The Supreme Court has several times issued "sacred letters" to hinder the implementation of lower courts' decisions that have legal power. It is saddening that the Supreme Court intervenes in the lower courts' decisions, which the Supreme Court itself has to respect.

There are various legal means to settle various legal problems, including appeal to high courts and appeal to the Supreme Court. And the Supreme Court has review power against its own decision. All those are legal means, but not "sacred letters" which have been used by the Supreme Court to intervene in the lower courts' business. Such letters have helped erode the people's trust on the Supreme Court and our legal system in general.

The Supreme Court's most recent "sacred letter" was that issued in relation to a decision taken by the Tondano district court in North Sulawesi against American-mining firm PT Newmont Minahasa Raya. The Tondano court, in its decision, ordered Newmont to stop its mining operation in Minahasa district until its case against Minahasa administration is heard and settled. In its "sacred letter," the Supreme Court, however, told the Tondano district court chief to postpone the implementation of the court's decision against Newmont.

Whatever the reasons, the issuing of such a "sacred letter" is a deviation in a court procedure. In the normal legal process, the issuance of such a "sacred letter" may not happen. In an abnormal legal life, those sacred letters have served the interest of the power holder to destroy justice and legal certainty. It can be concluded here that all sacred letters issued during the New Order administration under former president Soeharto were all to safeguard the interest of the power holder. And therefore, those sacred letters have become the destroyer of our legal system.

The next question is why our government now and also the business community welcome this last sacred letter. Does such a positive response to the sacred letter represent a confirmation and support to the deviation of law? Not really. The normal yardstick to judge the legal process could not be implemented in this still abnormal situation in our legal system. Our legal system could not be said to be independent and impartial, as our judges are known to have trade their decision for money.

I do not close my eyes to the fact that there are pressures against the Supreme Court to issue this latest sacred letter. It can easily be read that the lobby from foreign investors and international financial institutions have pressured the Supreme Court.

But we should also see the real situation in our country where foreign funds are badly needed to help us get out of the crisis. While we are in dire need of foreign capital, a court decision which does not consider the objective situation of our macro economy could serve as a disincentive to foreign investment. It's true that a tax evasion must be punished, but I think, the decision by the Tondano district court to close down Newmont's mining activities was too excessive and overkill and did not consider our macroeconomic situation.

In this context, I think, all judges must have a sense of crisis, must have a macroeconomic view whenever handing down a decision because any court decision could not be taken in isolation. Any court decision should be taken based on greater interests of this nation.

I think there are many other ways other than closing it down to force Newmont to pay the disputed taxes, and to make Newmont a good corporate citizen. Moreover, in this time of transition, in which the boundary of taxation in the context of local autonomy has not been clear, we could not use this unclear tax boundary to punish and even kill naughty investors.

In conclusion, in a normal situation, we have to reject any form of sacred letters. But in time of abnormal situation, where trust on our legal system and judges is in its lowest level, the challenge for all of us now is how to build a new legal system that is free, independent and impartial. Even if in the process of building this legal system there have to be sacred letters, those sacred letters must be seen in the context of building our new legal system. Hopefully, this sacred letter in the Newmont case will be the last letter of this kind. (Todung Mulya Lubis, lawyer residing in Jakarta). (*)