By Ranessa Nainggolan
The decision by a panel of High Court judges to reduce the sentence of former prosecutor Pinangki Sirna Malasari has given rise to a raging controversy among the Indonesian public. Earlier a Corruption Court had sentenced Pinangki to 10 years in prison but the Jakarta High Court reduced this to four years with an IDR 600 million fine.
Pinangki was found guilty in a corruption case that involved Joko Woegiarto Tjandra, the principal accused in the Bank Bali case many years ago. Pinangki offered a bribe of USD 500,000 to relevant officials so that the Supreme Court would issue a ruling that would allow Djoko Tjandra to return to Indonesia without serving a two-year sentence for his role in the Bank Bali case.
Aside from the bribery conviction, Pinangki was also proven guilty of money laundering and conspiracy. She had promised US$ 10 million to officials from the Attorney General’s Office and the Supreme Court if the fatwa was issued.
Upon her appeal, the panel of High Court Judges deemed that Pinangki’s 10-year prison sentence was too severe.
The High Court Judges cited several considerations behind their decision to reduce Pinangki’s prison time by six years resulting in a four-year prison sentence. First, they said, Pinangki pleaded guilty and regretted her actions.
The second consideration is that Pinangki’s actions also involved other parties who are also accountable in this corruption case. Another consideration is that they deemed the decision to cut the prison sentence would reflect the sense of justice of Indonesian society.
The final consideration is that Pinangki is a woman who needed protection and should be treated with more deference, being the mother of a four-year-old child.
The public questioned these considerations. Indonesia Corruption Watch (ICW) researcher Kurnia Ramadhana said that Pinangki deserved to be punished more severely because she was a prosecutor. According to Kurnia, the reduction of the sentence violated the public’s common sense, considering that Pinangki was proven to have committed three crimes at once, namely bribery, money laundering, and conspiracy.
Responding to public outrage, the spokesperson for the Judicial Commission, Miko Ginting, said that the Commission could not intervene in the High Court’s decision because by law it had no power to do so. He said that public outrage could be expressed in the form of public discussions by universities and academics.
The public particularly questioned the consideration about women and mothers of children less than five years of age. Many consider that the two reasons are irrelevant to the leniency granted to Pinangki.
This is an interesting aspect of the controversy and leads to more questions. Do the fact of being a woman and maternal status justify gender-based decisions? Was this consideration also applied in crimes involving other female defendants?
The gender issue in jurisprudence
Ilene H. Nagel and Barry L. Johnson in their article The Role of Gender in A Structured Sentencing System explain that there is a feminist dilemma in responding to female defendants in court.
There is a debate between the equal treatment approach, which maintains legally equal treatment between women and men in spite of awareness of gender differences between the two, and the special treatment approach where there is different treatment for women due to different needs. Both have different interpretations on how legal justice is achieved.
Nagel and Johnson said that both opinions could not be negated because both were needed in interpreting justice before the law, which have to be supported by the facts and context of the case itself.
Nagel and Johnson’s view is in line with the response of the National Commission on Women in the Pinangki case. Commissioner Siti Aminah Tardi regretted the High Court’s decision to reduce Pinangki’s sentence.
According to Siti, when viewed from a gender perspective, the reduced sentence for Pinangki is detrimental to women because women are the most vulnerable to being affected by corruption, especially corruption in the public service sector. For example in the case of corruption that limits access to education. Boys will be prioritized for school because of the traditional male role in the family to the disadvantage of women who are identified with domestic roles.
The gender perspective in courts has its own complexities. Siti said that Pinangki’s sentencing decision indicated a deeper problem in the perspective of gender equality and justice in the criminal system in general.
In the Pinangki case, the consideration of leniency on the grounds of her being a woman conformed with stereotypes about women. Shanna Van Slyke and William Bales explain this through their writing, Gender Dynamics in the Sentencing of White-collar Offenders.
They state that culturally, women are labeled as unsophisticated and naive. The male-dominated legal system therefore makes decisions based on a desire to protect women because they are presumably weak.
Based on the writings of Slyke and Bales, it is possible that this female stereotype was politicized so that Pinangki got a sentence cut from 10 years to four years. Indirectly, the Panel of Judges has perpetuated the stereotype of women in the legal system.
Constitutional law expert Bivitri Savitri said that Pinangki’s reduced sentence deepened public disillusionment with the judiciary. According to Bivitri, consideration of Pinangki’s status as a woman is also an invalid and arbitrary reason.
So what has been the legal treatment for other female defendants? Were gender considerations also taken into account in their cases?
Mercy only for Pinangki?
Slyke and Bales say that family, children, and community considerations are usually taken into account in cases of minimal infringement. This is based on considerations of mercy; for example, someone steals due to poverty.
However, this is certainly different in cases of corruption, which fall under the category of extraordinary crimes and white-collar crimes or criminal acts carried out by individuals belonging to elite groups, such as state officials.
It is stated that women who are found guilty of white-collar crimes are more likely to be treated with leniency than if they committed other crimes. This is because the defendant has the privilege of social status in terms of wealth, prestige, and power.
This explains the difference in court treatment in the Pinangki case with other women. If viewed from the criminal record, the decisions of the District Court (PN) related to theft, embezzlement, and corruption indicate that gender is not significant in influencing sentencing.
A reduction of sentence by six years has no precedent. Based on the explanation of Slyke and Bales, it is possible that Pinangki’s sentence commutation was influenced by the factor of privilege due to her social status as a former law enforcer and prosecutor.
A contrast to the Pinangki case can be seen in the case of Angelina Sondakh, who was entangled in the corruption of the Hambalang athlete home project. Angelina’s sentence was increased from 4.5 years in prison to 12 years. Gender was not taken into consideration in the decision, even though Angelina also had a three-year-old toddler and did not have a husband who could help her take care of the children.
The judge also did not consider the status of women in the case of Baiq Nuril, a teacher in West Nusa Tenggara (NTB). Nuril was criminalized under the ITE Law when she reacted to sexual harassment by the school principal. During her detention, Nuril’s husband was forced to stop working because he took care of his three young children.
At the end of the day, the High Court’s decision cannot be contested. However, it remains in the public mind that if the consideration of gender and children was applied in the Pinangki case, it should also be applied to other women’s criminal cases, especially cases involving aspects of gender injustice, such as in the case of Baiq Nuril.
Editor’s note: The views expressed in this article are the author’s and do not necessarily reflect the views of PinterPolitik.