Selasa, 17 Oktober 2017
By Amril Jambak *)

At the end of January 2017 the public was overwhelmed by the circulation of nasty chat containing pornographic elements allegedly involving Habib Rizieq Shihab (HRS) with Firza Husein (FH). In order to anticipate the social impacts that could disturb the public, Polda Metro Jaya through cyber patrol team then immediately conduct an investigation and collect related evidence until finally proceeded at the investigation stage. Now, the District Police Metro Jaya has established FH and HRS as suspects based on testimony of witnesses and strong evidence which has been obtained which is stated to fulfill the criminal element. Both are charged under Article 4 paragraph 1 juncto Article 29 and or Article 6 juncto Article 32 and or Article 8 juncto Article 34 of Law Number 44 Year 2008 on Pornography with the threat of punishment above five years in prison.

Determination of suspect status over FH or HRS itself does not suddenly happen. Stages as legal provisions have been passed professionally by law enforcement. The Investigator determines the status of FH as a suspect after a 12-hour examination on May 16, 2017, as well as a case degree reinforced by expert witness testimony to the nasty chattering evidence circulating in the community. Despite the suspect's status, the investigator also did not make any detention because of humanitarian considerations given FH's deteriorating health condition at the time. Meanwhile, HRS's own status is still as a witness needed by its investigators. Unfortunately, HRS as a witness does not show a cooperative attitude when called upon by investigators until finally designated as a suspect on May 29, 2017. HRS chose to be absent for two calls with various excuses and now remain silent in Saudi Arabia.

HRS's rejection of the summons made by the investigator is clearly a form of non-compliance with the legal system prevailing in Indonesia. As a good citizen, HRS must obey and comply with all applicable regulations. By the time HRS is called as a witness, that momentum should be used to provide information to clarify the growing tangles about his involvement in a nasty chat case. Similarly, the determination of HRS as a suspect in which the legal mechanism provides constitutional guarantees to file a pre-trial as stated in the decision of the Constitutional Court No: 21 / PUU-XII / 2014 that the determination of suspects, searches and seizures is the object of pre justice. Sadly, however, HRS fought back by refusing the investigator's call and launching misleading propaganda about the "criminalization of the clergy" and the "order of authority" over the case. The propaganda not only discredits the government, but also the form of civil disobedience against the law in Indonesia and demonstrates the quality of citizenship understanding of HRS.

A criminal case
The accusations launched by the HRS support group on the criminalization of theologian clearly have no basis and strong argumentation. HRS supporters have mistakenly used the term criminalization as a state when a person can be declared a perpetrator of a crime or a criminal because it is only because of an imposition of an interpretation of the legislation. This is in contrast to the concept of criminalization in the study of law as Peter Hoefnagels states that criminalization is an act or a thing into an action which was not previously a criminal act to be a criminal act. What is allegedly done by HRS in the case of a nasty chat by loading pornographic material clearly has no law that regulate it as an action categorized as a criminal act that violates the law. Therefore, if in the realm of law then criminalization of HRS is law enforcement through criminal law application that cannot be associated with social status, but its action as a person who entered in the realm of criminal law regulated in law, in this case Pornography Law.

As a legal state that shares the principle of separation of powers or TriasPolitica, it is clear that governmental power has no authority to interfere with law enforcement, either from investigation, investigation to judicial proceedings. The case that ensnares HRS is a pure crime in the realm of criminal justice system where the government cannot intervene under any pretext. The allegation that the case of HRS was deliberately raised because it is related to the political action of HRS which is often opposed to the government, is a statement that needs to be empirically proven what is the relevance between the case and the government's interest?

Without arguing that can be proven by the accusers, the clerical criminalization statement is no more than a political propaganda to divert the issue from the facts and testimony found by law enforcement to the nasty chat case between HRS and FH. Apparently, the supporters of HRS want to develop a conflicting opinion between the government and the ulama who have been to establish an intense and mutually supportive relationship in guarding the government to build NKRI. It is as if the HRS is a symbol of the existence of the scholars, and the HRS is a "can do no wrong" figure so it is impossible to err, even the lawlessness of the law. Both HRS and its supporters have been manipulating the public with a "playing victim" scenario to cover up the facts that have been exposed to the public and now continue into the realm of the law. 

It should be noted that law enforcement officials will certainly not indiscriminately determine the status of HRS without the support of strong evidence because its credibility and professionalism will be tested in the judiciary. If the accusation of criminalization as referred to by HRS supporters is concerned, then it will be dealing with independent judicial powers to assess all credibility rather than evidence and testimony obtained by investigators and prosecutors in constructing the case of HRS. In fact, HRS itself can test the validity of establishing its status as a suspect in a pre-trial suit based on procedures and evidence filed by the investigator. Therefore, allegations of criminalization of ulama other than baseless also indicates that the HRS does not respect the judicial system in force in Indonesia.

Face In "Gentlemen" 
The classic saying says "fiat justitia is made caelum", legal standing even though the sky collapses. This proverb shows that law enforcement is not a riskless and challenging action. Those trapped in legal cases will always make every effort to resist using all resources, including potential outside legal mechanisms such as mass mobilization and political propaganda to defend themselves. However, as a law-based country, it can not be subject to any pressures that may disrupt the course of law enforcement fairly and transparently. Therefore, law enforcement should not hesitate to ensure that this HRS case will continue until the court and let all be tested and decided in court. 

Police action by issuing blue notice to track the existence of HRS is definitely the right thing to do. The move should be followed up by efforts to establish communication and cooperation with the Police and the Ministry of Foreign Affairs in the country where the HRS resides so that steps can be deported back to Indonesia to account for its legal case. In addition, the Police may develop investigations by investigating parties that assist HRS to avoid legal process in Indonesia. 

The existence of HRS in Saudi Arabia is very open the possibility of getting support from certain parties. Whatever the motive of support is, the fact is that HRS has avoided legal process in Indonesia and showed bad faith when expending the issue of "criminalization of ulama". The police should be able to cut off all support channels for HRS and bring back to Indonesia. The effectiveness of this step is certainly not only about the performance of law enforcers alone, but it needs the support of various parties. This is especially important when HRS is named as a suspect by investigators, a number of political figures who meet HRS in Saudi Arabia have sparked speculation about their support for HRS who is now a suspect.

Legally there is no problem related to the meeting of such figures as Amien Rais with HRS, as well as a number of PKS leaders such as the Chairman of the Majelis Syuro PKS Salim Segaf Al Jufri, PKS Faction Chairman Jazuli Juwaini and Secretary of PKS Sukamta Faction in Saudi Arabia when implementing Umroh. Although the figures clarified that the meeting was merely a relationship, it would have been very unethical when law enforcers in Indonesia had set HRS as a suspect, precisely the respected political figures showed an atmosphere that was very likely to cause perception in society Widely as a form of political support for dissent committed by HRS against law enforcement in Indonesia. The leaders should be able to encourage HRS to face its legal process in Indonesia and to use all legal means available for self-defense. 

As a citizen, HRS has an obligation to submit and obey the law. His constitutional rights have been guaranteed to be used as a means of self-defense if his party feels criminalized in terms of being entangled in law because of the imposed interpretations by law enforcement. HRS does not need to hide in other countries and be manipulates the clerical social attributes as a bumper to circumvent its legal matters. The attitude of gentlemen should be shown as a leader of a mass organization as well as who claim to be the ulama leading the people. 

Likewise with HRS supporters, the legal process must be dealt with using legal steps. Attempts to drag the legal case by blowing the issues to the public will further impose the credibility of HRS which is now increasingly worse in the eyes of the public. Keep in mind that people are starting to critically and objectively look at the cases of nasty chat and pornography that is suspected on HRS. The public will not be affected by the transfer of issues by HRS and its supporters. For the wider community, if HRS re-enforced criminal case certainly not a surprise considering the lunge of HRS which from the beginning was filled with controversy and had served prison sentence due to violence in case of mass attack of National Alliance for Freedom of Religion and Belief (AKKBB) while doing Demonstration at Silang Monas in 2008 ago. Therefore, there is no other choice for HRS other than to face the legal process and prove that he is not guilty of the case he suspects. ***

*) The author is a senior journalist in Pekanbaru, Riau.