Time to rejuvenate court's image<\/p>\n
By Frans H. Winarta<\/p>\n
JAKARTA (JP): The plight of the Supreme Court began with
\nJustice Adi Andojo Soetjipto's suspicion of collusion between a
\njustice and a former justice.<\/p>\n
The justice was in charge of the Gandhi Memorial School case.
\nThe former justice was the defense attorney.<\/p>\n
Justice Adi had to account for his whistle-blowing to the
\nspecial internal investigation into the alleged collusion. The
\nfindings of the investigation led to a denial of collusion at the
\nSupreme Court. Supreme Chief Justice Soerjono said there was only
\nan \"error in the procedure\" in the way the case was processed.<\/p>\n
Justice Adi was not satisfied with the findings and proposed
\nfurther investigations. This led the chief justice to submit a
\nrequest to President Soeharto to dismiss Justice Adi.<\/p>\n
People from virtually every cross section of society, from
\nHouse members to educators, from community leaders to law
\npractitioners and the press have voiced their reactions to the
\ndismissal proposal. Some favor the proposal but others do not.<\/p>\n
The confusion surrounding the allegation of collusion has
\nstemmed from the unclear definition of the profession of
\nattorneys-at-law. In developed countries a former justice can
\nnever be a defense attorney.<\/p>\n
Had we had similar legislation, the Supreme Court's plight
\nwould have never occurred; where a justice's opinion may have
\nbeen influenced by the bias of a former colleague.<\/p>\n
The strong Indonesian culture of sungkan (reluctance to speak
\nout) has strongly contributed to the influence of bias.<\/p>\n
The Gandhi Memorial School case is one of many cases where
\njudgments are made under subjective conditions. The former chief
\njustices Subekti and Ali Said chose to become a lecturer and the
\nchairman of the human rights committee respectively.<\/p>\n
What is developing out of the collusion accusation against
\nthis most respected institution is alarming. The opinions and
\ncomments expressed by various circles tend to violate
\nimpartiality and the independence of the judiciary.<\/p>\n
The U.S. has a strong press corps that always questions all
\nissues, but it will remain silent about anything involving the
\nSupreme Court because it is one of the pillars of the state. The
\nindependence and freedom of the Supreme Court is strongly upheld
\nby the American press.<\/p>\n
The Gandhi Memorial School case is in fact not a personal
\nmatter between Adi Andojo and Soerjono. It is much more extensive
\nand touches on a fundamental principle, namely the independence
\nand freedom of the judiciary.<\/p>\n
Amid this confusion, it is good to review some parts of the
\n\"Universal Declaration on the Independence of Justice\" document
\nthat came from the World Conference on the Independence of
\nJustice in 1987 in Montreal.<\/p>\n
On national judges the document says in part:<\/p>\n
* Judges individually shall be free, and it shall be their duty,
\nto decide matters before them impartially in accordance with
\ntheir assessment of the facts and their understanding of the law
\nwithout any restrictions, influences, inducements, pressures,
\nthreats or interferences, direct or indirect, from any quarter or
\nfor any reason.<\/p>\n
* In the decision-making process, judges shall be independent
\nvis-a-vis their judicial colleagues and superiors. Any
\nhierarchical organization of the judiciary and any difference in
\ngrade or rank shall in no way interfere with the right of the
\njudge to pronounce his judgment freely.<\/p>\n
* The judiciary shall be independent of the Executive and
\nLegislature.<\/p>\n
* The judiciary shall have jurisdiction, directly or by way of
\nreview, over all issues of a judicial nature.<\/p>\n
a) No ad hoc tribunals shall be established;<\/p>\n
b) Everyone shall have the right to be tried expeditiously by the
\nestablished ordinary courts or judicial tribunals under law
\nsubject to review by the courts;<\/p>\n
c) Some derogations may be admitted in times of grave public
\nemergency which threatens the life of the nation but only under
\nconditions prescribed by law, only to the extent strictly
\nconsistent with internationally recognized minimum standards and
\nsubject to review by the courts;<\/p>\n
d) In such times of emergency:<\/p>\n
(i) civilians charged with criminal offenses of any kind shall
\nbe tried by ordinary civilian courts expanded where necessary by
\nadditional competent civilian judges;<\/p>\n
(ii) detention of persons administratively without charge
\nshall be subject to review by ordinary courts by way of habeas
\ncorpus or similar procedures so as to ensure that the detention
\nis lawful as well as to inquire into any allegations of ill-
\ntreatment;<\/p>\n
(e) The jurisdiction of military tribunals shall be confined to
\nmilitary offense committed by military personnel. There shall
\nalways be a right of appeal from such tribunals to a legally
\nqualified appellate court.<\/p>\n
* a) No power shall be exercised as to interfere with the judicial
\nprocess;<\/p>\n
b) The Executive shall not have control over judicial functions;<\/p>\n
c) The Executive shall have the power to close down or
\nsuspend the operation of the courts;<\/p>\n
d) The Executive shall refrain from any act or omission
\nwhich preempts the judicial resolution of a dispute or frustrates
\nthe proper execution of a court decision.<\/p>\n
* No legislation or executive decree shall attempt retroactively
\nto reverse specific court decisions nor to change the composition
\nof the court to affect its decision making.<\/p>\n
* Judges may take collective action to protect their judicial
\nindependence.<\/p>\n
* Judges shall always conduct themselves in such a manner as to
\nreserve the dignity of their office and their impartiality.<\/p>\n
The document which was recommended to the United Nations
\ndeserves our attention. It is now the right time for the Supreme
\nCourt to solve the internal collusion case with insight and
\nwisdom.<\/p>\n
Interference by the executive and the legislature will violate
\nthe principle, the more so if the interference comes from other
\ncircles. Such interference will destroy the Supreme Court's
\nindependence and freedom.<\/p>\n
The idea of a nation based on law has been brewing since the
\nstruggle for independence. The fear of the Dutch of a rise of
\nIndonesians' legal consciousness was reflected in the mixed
\nreactions of Dutch colonial government circles on the
\nestablishment of the Law Faculty (Rechts Hogeschool) in Jakarta
\n(then Batavia) in 1924.<\/p>\n
The text of the Youths' Pledge was drafted in 1928 by
\nindigenous legal experts who initiated the movement toward
\nindependence.<\/p>\n
The writer is a Jakarta-based attorney-at-law.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/time-to-rejuvenate-courts-image-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }