Steps to gain a clean judiciary<\/p>\n
One of the issues scheduled for discussion at the fifth
\nNational Workshop on Human Rights, which opens on Thursday in
\nJakarta, is the role of the judiciary in a market economy.
\nProfessor of law Charles Himawan, also a member of the National
\nCommission on Human Rights, shares his views on the matter.<\/p>\n
JAKARTA (JP): Last week Indonesia and the International
\nMonetary Fund (IMF) reached a tentative agreement to insert
\n\"legal framework, regulating and supervising\" under category III,
\nStructural Reformation for 1999\/2000 and 2000, in its draft
\nLetter of Intent. Hopefully, \"supervising\" means \"implementation
\nof law\".<\/p>\n
To date, the IMF believes incorrectly that Indonesia needs
\nmore laws to support its market economy, as made evident by
\nIndonesia's attempt to improve and renew its business and
\nbankruptcy laws. To rectify this misconception, the IMF must
\nfirst accept that sufficient pieces of legislation and bills,
\nthough outdated and elementary, do exist, but it is their
\nimplementation that is nonexistent.<\/p>\n
Second, the IMF should realize that implementing pieces of
\nlegislation and bills is not the same as implementing only the
\nwording of the bills (known as black letter rules, because they
\nare printed in black).<\/p>\n
District courts and the Court of Appeals may, to a certain
\nextent, implement only the wording of the bills, but the Supreme
\nCourt must interpret the bills in order to create new laws,
\nthereby turning the original outdated and elementary laws into
\nmodern and sophisticated laws. No bill can keep pace with
\ndevelopments in the economy and markets. The Supreme Court must
\nfill this legal vacuum.<\/p>\n
Believing the Supreme Court was failing to serve this
\nfunction, a number of lawyers called for the replacement of the
\njustices, because \"laws are a dead letter without courts to
\nexpound and define their true meaning and operation\", as observed
\nby the former American secretary of the treasury, Alexander
\nHamilton (1755-1804).<\/p>\n
One factor that may allow courts to fulfill their duties is
\nrealistic salaries for judges. In the absence of this, the IMF's
\nattempt to create a market economy will fail because the
\njudiciary will not be free of collusion, corruption and nepotism
\n(KKN); and the economy and businesses need a clean judiciary to
\ndefend their rights and define their obligations. In a KKN-
\ndominated economy, in contrast to a market economy, a judicial
\ncourt is not needed because businesses can defend their rights
\nand elude their obligations on the basis of their political,
\nmilitary and police connections, their financial strength,
\njingoism and nepotism.<\/p>\n
One may argue that expecting the IMF to help fund judges is a
\ndream, but dreams come true if pursued vigorously. The draft
\nLetter of Intent has opened the first door to realize this dream,
\ni.e. to allocate funds in accordance with the seriousness of the
\nproblems faced. The difficulty in implementing laws appears to be
\nfar more serious than other problems.<\/p>\n
The majority of the IMF money should therefore be allocated to
\n\"supervising\" (by the judges) than to \"legal framework and
\nregulating\" (by the legislature), even to the extent of 99
\npercent to 1 percent, respectively.<\/p>\n
The second door which must be opened is for the government to
\ndetermine a realistic cost of living for judges and pay them
\naccordingly. If the availability of IMF money for judges is a
\njoke, perhaps it is also a joke to pay judges a basic salary
\nranging from Rp 750,000 to Rp 1,500,000 a month.<\/p>\n
Take as an example a judge with a wife and two children. They
\ncertainly need housing, a car, education for the children,
\nweekend holidays, visits to shopping malls and amusement parks.
\nYet, their take-home pay is surely less than the take-home pay of
\nthe financial experts busily restructuring our banking sector.
\nMany fail to realize that restructuring the financial sector
\nwithout restructuring the judiciary will end in failure.<\/p>\n
The third door is to turn the Jakarta District Court into a
\npilot project. If this is successful, other courts will follow
\nsuit. It is perhaps not merely wishful thinking, but a plain
\nimpossibility to raise simultaneously judges' salaries throughout
\nIndonesia. In consequence, this move should be done gradually.<\/p>\n
The Association of Southeast Asian Nations plans to lift all
\nimport duties by 2010. Therefore, Indonesia should achieve a
\nclean judiciary throughout the nation within 10 years.<\/p>\n
The fourth door is to examine the morality of judges. A judge
\nshould have high integrity. Hence, the declarations by the
\nAssociation of Judges and the Association of Litigation Lawyers
\nfor their members not to practice KKN will only prove effective
\nif the other three doors are opened. By then, Indonesia will
\nunderstand the observation made by the 26th U.S. president,
\nTheodore Roosevelt (1858-1919), that \"the decisions of the courts
\non economic and social questions depend upon their economic and
\nsocial philosophy\".<\/p>\n
At this stage, the Supreme Court would become a lighthouse
\nilluminating the legal darkness surrounding us today; making it
\npossible for a citizen to defend with fairness before a clean
\njudiciary his rights in a market economy and social and political
\ndemocracy.<\/p>",
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