Supreme Court causes backlogs, not the law<\/p>\n
Sebastian Pompe, IMF Residence Legal Advisor, Jakarta<\/p>\n
One of the most visible problems facing the Indonesian Supreme
\nCourt is the backlogs. Though significantly smaller than those of
\nthe Indian or Philippine Supreme Courts, Indonesian backlogs
\nstill stand at a steady 16,000 cases. They are a major source of
\ninjustice for the delays they cause, and the manipulations they
\ninvite. Backlogs are not something new.<\/p>\n
They have been with the Supreme Court for several decades, and
\nnothing much seems to change them. The Supreme Court in the past
\nhas tried to overcome backlogs with significant increases in
\nJustices, and supporting personnel. This has not helped.<\/p>\n
The Supreme Court has received extra funding for incentive
\npayments to Justices to overcome the backlogs. This also has had
\nno effect. It is almost as if there is an institutional interest
\nin retaining backlogs. What is clear is that the backlog problem
\nis not something that can be resolved by simply throwing more
\npeople or money at it.<\/p>\n
There are many reasons why backlogs exist. Delays in civil
\ncases are caused by parties themselves, by requesting endless
\ndeferrals. (An order from the Supreme Court that instructs such
\nparties to \"show cause\", may significantly reduce the backlog
\npile, as it did in India.)<\/p>\n
But most reasons are internal to the operation of the Supreme
\nCourt. They relate to such matters as the way decisions are
\ndrafted, which is a major administrative burden. Even simple
\ndismissals are very lengthy documents that exhaustively reiterate
\nthe facts, exhaustively repeat arguments of both parties and
\nexhaustively repeat lower court decisions. (Restructuring Supreme
\nCourt decisions is likely to be helpful here.)<\/p>\n
Spurious appeals or appeals with evident procedural errors
\nshould be summarily dismissed. (This is allowed in many foreign
\ncourts and reduces case load by up to 40 percent.) Backlogs are
\nalso caused by the way cases and decisions are processed within
\nthe Supreme Court administration. (It is necessary to restructure
\ncase processing within the court.) All these and many other
\nfactors are critical, and the backlog issue is unlikely to be
\nresolved unless they are considered.<\/p>\n
Yet the backlog debate in Indonesia does not focus on
\ndeferrals or internal court operations. Instead, the reason which
\nis most often cited in Indonesia for explaining the backlogs is
\nappeal barriers. Simply put, appeal barriers control the flow of
\ncases from the lower courts to the superior ones.<\/p>\n
Common opinion in Indonesia is that backlogs exist because
\nappeal barriers are low. It is widely believed and asserted that
\nbecause of this, all cases are appealed to the Supreme Court. And
\nthis belief is the principal reason why appeal barriers are the
\nfocus of scrutiny.<\/p>\n
If in fact all cases were appealed, then evidently appeal
\nbarriers would be a cause for the backlogs. But this manifestly
\nis wrong. Official government records show that the Indonesian
\ngeneral district courts decide 1.5 million cases annually, of
\nwhich only 6,500 end up with the Supreme Court.<\/p>\n
This roughly speaking is 0.4 percent, which is not so bad. (In
\nthe U.S. federal judiciary, and excluding bankruptcy cases, the
\nappeal rate between District Courts and the Supreme Court is
\naround 2.5 percent. This is 6 times higher than in Indonesia.)
\nGenerally accepted misconceptions can cause major mistakes, and
\nthe relationship between the Indonesian appeal system and
\nbacklogs needs closer attention than it has had so far.<\/p>\n
Some of these misconceptions are apparent in a recent article
\nin the magazine Tempo July 22-28, 2003, in which Achmad Ali
\nargues that the appeal system is at fault in two respects,
\ncausing Supreme Court backlogs. The first is that the Supreme
\nCourt cannot summarily reject appeals. Instead, it must issue an
\nargued decision on all cases that are appealed. The second is the
\nprocedure which allows for cases to be reopened after all appeals
\nhave been exhausted. This procedure is much used in Indonesia.<\/p>\n
It causes the Supreme Court to decide many cases twice, and
\nadds to its workload. The solution of Ali is simple: He proposes
\nto introduce to U.S. system of appeals before the Supreme Court.
\nHe mentions two features: Discretionary authority to reject cases
\n(discretionary systems), and no reopening of cases. These ideas
\ninvite closer scrutiny.<\/p>\n
The hidden workload. It is easy to think that the workload of
\nthe U.S. Supreme Court is small. After all, the U.S. Supreme
\nCourt only issues about 80-90 decisions annually, whereas the
\nIndonesian Supreme Court must issue 6500 just to break even.
\nNevertheless, even in systems of discretionary appeals, all
\nrequests must be studied to determine whether they should be
\ndenied or come up for a full decision. In the U.S., the number of
\nrequests totaled 7,924 cases in 2001.<\/p>\n
Whilst the law clerks help, the Justices still take a vote,
\nand occasionally engage in argument, on whether or not to allow a
\ncase to proceed to a full hearing and a decision. The workload of
\nthe Supreme Court therefore is not just the 80-90 decisions that
\nare issued, but includes the very large bulk of decisions that
\nare studied and rejected. The U.S. Supreme Court therefore has a
\nlarge hidden workload.<\/p>\n
Strong substantive similarities. Underlying the argument that
\ndiscretionary systems help resolve backlogs is the assumption
\nthat the grounds of appeal must be simpler. For if they are not,
\nthen surely deciding on whether or not to hear a case would be
\njust as time-consuming as in the Indonesian cassation system.<\/p>\n
It is wrong to conclude that because denial of appeal by the
\nU.S. Supreme Court is discretionary, it must also be arbitrary.
\nThe U.S. Supreme Court applies an elaborate system to determine
\nwhether a case is accepted or rejected. This system has features
\nthat are quite similar to cassation system prevailing in
\nIndonesia. Thus, one of the principal reasons for rejecting a
\ncase in the U.S. is because it is fact specific. This is exactly
\nthe same in cassation systems.<\/p>\n
Transparency. One of the principal features of discretionary
\ndenials is to shift the decision-making process of the court from
\na public and accountable process, to a hidden and internal one.
\nDenials in the U.S. system are not explained by the court in a
\npublic decision, unlike most cassation denials. One therefore
\ndoes not really know why a case is accepted, or rejected. It may
\nnot be desirable in the Indonesian context to solely rely on the
\ngood graces of the Supreme Court whether or not a case is heard
\non appeal.<\/p>\n
Increased fragmentation. Reducing Supreme Court appeals means
\nthat most cases will go no further that the Appeal Courts. Most
\ndisputes will be resolved in final instance by Appeal Courts, and
\nit is these courts that will carry the principal burden to ensure
\nlegal consistency and discipline of the system as a whole. In the
\nU.S., the Federal Courts of Appeal in practice absorb by far the
\nmost appeals.<\/p>\n
But the situation in Indonesia is quite different. Not only
\nare there 27 appeal courts in the general judicature alone --
\nmore than twice the number of U.S. circuits. Also, understanding
\nand application of the rule of precedent is weak to say the
\nleast. There is little support from structured academic debate.
\nIn Indonesia the consequence of reducing Supreme Court access
\nwould therefore be to fragment decision-making in the judiciary.<\/p>\n
Increased injustice. As we have seen, there are many reasons
\nwhy the backlogs at the Indonesian Supreme Court have arisen. Not
\nall of these reasons are bona fide. It is important to mention
\nhowever, that one of the main historical reasons is very
\nunderstandable. It arises out of recognition by the Supreme Court
\nin the 1960s and 1970s that the lower courts were beginning to
\nmake mistakes on an ever more frequent and larger scale.<\/p>\n
These mistakes could bring about irreversible consequences.
\nThere were a series of lower court decisions to demolish houses,
\nfor example, which were overturned on appeal.<\/p>\n
\"How can we let a blatant injustice stand, when we all can see
\nthat the lower courts erred?\" an Indonesian Justice wondered in
\nthe 1980s. Hence the high frequency of bad decisions of the lower
\ncourts brought the Supreme Court to lower appeal barriers, and
\nignore appeal restrictions.<\/p>\n
Though understandable, the Supreme Court policy of \"pulling up
\ncases\" misfired in the long run. The backlogs are a source of
\ninjustice in their own right. This policy needs to be
\nreconsidered. Yet a simple increase of appeal barriers will mean
\nthat the rampant injustices of the lower courts will remain
\nuncorrected.<\/p>\n
In the end the solution to the backlog problem resides not in
\nthe appeal system, but in factors that are essentially internal
\nto the way the Supreme Court operates. Procrastinating advocates
\nin civil cases must be forced to show cause, or have their case
\ndismissed. Appeals with basic procedural mistakes must be
\nsummarily dismissed. Fact-specific cases must be denied. Court
\ndecisions must be re-formatted. Case review must be made highly
\nexceptional, as the law requires. And above all, the internal
\nSupreme Court administration must be re-organized.<\/p>\n
The article is personal view<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/supreme-court-causes-backlogs-not-the-law-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }