The First Day of the Makarim Trial, Reviewed for Dramatic Content

The first day of Nadi Makarim’s trial produced the kind of courtroom tableau that doubles as a civics exam question. ^[1] In one corner: the defendant, the legal teams, the presiding judge. In the other: members of the Indonesian armed forces, Tentara Nasional Indonesia (TNI), seated in the gallery of what is, by every available definition, a civilian proceeding. ^[1] To set the scene properly: Tentara Nasional Indonesia is Indonesia’s military. They are not, generally, fixtures of ordinary criminal trials. Which is what made their presence notable enough that the former Chief Justice of the Constitutional Court — the Mahkamah Konstitusi, or MK, the body that adjudicates constitutional matters and election disputes — publicly commented on it. ^[2] Per the legal analysis, this was reportedly the first time he had seen armed forces members present in a civil trial. ^[2] For viewers of a certain age, the visual evidently brought back memories of the period before 1998, when the line between military authority and civilian governance was drawn with a much heavier hand. The transcript notes the comparison. The transcript is being polite about it.

Now, to be fair to the Attorney General’s office — the Kejaksaan Agung, the state body that handles prosecution — the deployment was not a rogue operation. The armed forces members were reportedly present at the behest of the AG’s office, and Armed Forces headquarters pointed to a presidential decree from last year as the basis. ^[3][4] A presidential decree. Cited as authority. For a military presence in a civilian courtroom. The phrase “presidential decree” is doing a lot of work in that sentence, and none of it appears to be for the benefit of the public.

The legal analysis was pointed: such a presence should only be justified to protect prosecutors in objectively high-risk situations based on clear threats. ^[5] The threshold matters because the alternative is “we sent soldiers to a corruption trial because we felt like it,” which is not a category that exists in the procedural rulebook. The defendant, pictured smiling in the courtroom, did not appear, in the photo at least, to constitute a clear threat to anyone’s physical safety. ^[5] Which suggests that the threshold of “objectively high-risk situation” was being applied with some creativity, since the visual evidence in the available courtroom photo does not, on its face, support the assessment.

There was also the question of who, exactly, asked for them to be there. The argument from the defense — and it is the kind of argument that lands in front of judges for a reason — was that armed forces members may only be present in a courtroom at the request of the presiding judge. ^[6] And the presiding judge, per the analysis, appeared to be surprised by the presence. ^[6] A presiding judge, surprised, in his own courtroom. The phrase “judicial independence” gets used a lot in Indonesian legal commentary, often as a kind of decorative brick. This is what it looks like when the brick is tested in open court.

Then there was the part after the trial was suspended. Under normal procedure, a defendant speaks to the press. The defense team had, per their own statement, given consent for Makarim to do exactly that. ^[7] What happened instead is that Makarim left the courtroom in a manner I would personally describe as being aggressively ferried away from the reporters, which prompted complaints from his defense lawyers. ^[7][8] If you were a defendant who had been told by your own legal team that you would be speaking to the press, and you were instead removed from the building at speed, you would, in my opinion, also be unhappy. ^[8]

The prosecutors’ explanation, reported in the analysis, was that they removed him because he was tired. From surgery. A few weeks back. ^[9] So he was too tired to give a short statement to the press, but apparently well enough to be physically moved out of the courtroom by the very people who had decided he was too tired to talk. Make of that what you will. The body does not, generally, develop a new capacity to give press statements in the thirty seconds between “tired” and “aggressive escort.” And the defense lawyers, who had given consent for the press interaction, were apparently not consulted on the change of plan. A defendant’s right to speak is the defendant’s right to speak, and “he looked sleepy” is not, traditionally, the standard for waiving it.

The first day of a trial is supposed to set the tone. The tone, here, was set. Members of the military in a civilian courtroom. A defendant removed from his own press opportunity by the prosecution that is supposed to be arguing against him in open court. A presiding judge, by all visible accounts, surprised. The defense lawyers, complaining. The prosecutors, citing fatigue. ^[9]

In my opinion, this is not a great look. Not for the judiciary, not for the AG’s office, not for the institution that issued the presidential decree, and not for the long-running argument that Indonesian civilian institutions are, on their own, up to the job. The first day of a trial is where the system announces what kind of trial it intends to be. This one announced itself loudly. The defense will get to argue the rest. The presiding judge, presumably, will get to ask some questions. Make of that what you will.