Any hope for a reliable judiciary in Indonesia?<\/p>\n
Exasperating decisions by the courts have increased pessimism
\nabout Indonesia's chances of improving investor confidence and
\nattaining economic recovery. Charles Himawan, a member of the
\nNational Human Rights Commission and professor of law at the
\nUniversity of Indonesia, says top officials have failed to take
\nseriously the warnings of the international community.<\/p>\n
JAKARTA (JP): When United Nations Secretary-General Kofi Annan
\nvisited the Jakarta office of the National Human Rights
\nCommission on Feb. 16, I had the opportunity to discuss with him
\nvarious decisions by the Indonesian judiciary. He specifically
\nemphasized that he could accept either an acquittal or a guilty
\nverdict provided it was handed down by a reliable judiciary.<\/p>\n
Annan's reliable judiciary sounds simple. However, it embodies
\nan implicit requirement on the part of Indonesia to bring to
\njustice violators of economic laws, and certainly also violators
\nof human rights. To do this, Indonesia must restructure its
\njudiciary substantially to make it reliable.<\/p>\n
The perception of international financial institutions and
\ninvestors is greatly influenced by the decisions of the
\nIndonesian judiciary.<\/p>\n
The question then arises: what is the criteria for a reliable
\njudiciary? The criteria is not one decision only, but tens, even
\nhundreds, of decisions handed down over a period of time.<\/p>\n
When the British High Court backed a government decision to
\nsend Chile's Augusto Pinochet home for reasons of health, there
\ncertainly were complaints. However, both domestically and
\ninternationally the decision was considered as having come from a
\nreliable court, a perception based on hundreds of earlier
\ndecisions.<\/p>\n
The Indonesian judiciary, through decades of questionable
\ndecisions, is regarded as unreliable. Briefly in the 1970s it was
\nonly the district courts which were seen as unreliable. Many
\nlegal practitioners remained silent at the time, believing there
\nwas still hope through the appeals process.<\/p>\n
However, in the 1980s the higher courts also seemed to become
\ncontaminated and in the 1990s the Supreme Court apparently fell
\nvictim to the virus.<\/p>\n
More than likely it is this perception that prompted Annan to
\ndiplomatically \"warn\" Indonesia to restructure its judiciary. The
\ndialog with Annan led to a discussion concerning the possibility
\nof using noncareer and ad hoc judges, as well as noncareer and ad
\nhoc prosecutors, to establish a reliable judiciary. Many people
\nin Indonesia's legal circles have made similar proposals.<\/p>\n
One suggestion was to replace all the current judges,
\nparticularly those on the Supreme Court, including the chief
\njustice. On paper this plan is ideal, but in practice it is
\nimpossible to take this line of reform. Besides this approach is
\nnot fair to those judges untainted by corruption.<\/p>\n
A second alternative is more feasible -- to include noncareer
\njudges on the panel of judges hearing cases with direct
\nimplications on the country's economic recovery, whether they are
\ncivil or criminal cases.<\/p>\n
Attempts to improve the reliability of the judiciary continue,
\nparticularly following the acquittal of Djoko Tjandra, supposedly
\nthe main actor in the Bank Bali scandal. Though the decision to
\nacquit Djoko was not final, it attracted world attention because
\nof its implications on economic recovery. Furthermore, it
\nindicated the types of verdicts which could be expected in the
\nfuture.<\/p>\n
The World Bank, which plays a vital role in the country's
\neconomic recovery, saw the importance of the verdict, immediately
\n\"questioning\" the acquittal. The saddest part is that most
\nIndonesian officials failed to take the verdict and the ensuing
\nreaction seriously; in fact they should have been valued in the
\nsame manner as Annan's \"warning\".<\/p>\n
Both Annan's remarks and the world's reaction to Djoko's
\nacquittal should be viewed as a warning that such verdicts are
\nunacceptable, both in the national and international sphere.<\/p>\n
However, such a perspective is possible only if the country's
\nthree highest officials -- Speaker of the People's Consultative
\nAssembly Amien Rais, President Abdurrahman Wahid and Speaker of
\nthe House of Representatives Akbar Tandjung -- share a similar
\nvision regarding the deplorable condition of the judiciary.<\/p>\n
The three must first have a common political goal to establish
\na reliable judiciary. Second, they need to translate this common
\ngoal into a common political will to act. Third, they need to
\nmaterialize this political will into substantive rules that
\nprovide a legal basis for the involvement of noncareer judges and
\nprosecutors in criminal or civil cases where the economy is at
\nstake.<\/p>\n
The involvement of noncareer judges and prosecutors would at
\nleast open the door to a reliable judiciary, which would better
\nensure the success of the Indonesian Bank Restructuring Agency
\n(IBRA) in selling the US$30 billion in assets currently under its
\nsupervision.<\/p>\n
Many lawyers fail to realize the potential of this vast amount
\nof money in revitalizing the economy. To grasp this, they could
\nsimply look at the willingness of the Consultative Group on
\nIndonesia to help the country.<\/p>\n
For the year 2000, the consultative group is providing
\nIndonesia with $4.73 billion, less than one sixth of what is
\nunder IBRA's control. As far as money is concerned, China's
\nSupreme Court ruled that a corruption case involving \"only\"
\n$860,000 was enough to warrant the death penalty for the former
\nvice governor of Jiangxi province, Hu Changquing.<\/p>\n
Such a decision reflects China's ability to implement a
\nreliable judiciary as required by Annan and the World Bank.
\nPerhaps this is one of the reasons why China's economy has
\ndeveloped quickly in recent years. China's business partners have
\nfaith that they will be protected by the country's judiciary.<\/p>",
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