Reform means the reconstruction of an order. When pertaining to law, legal reform means the reconstruction of the law, such that the law can be applied in accordance with the demands of reformation, and can follow the development and needs of the public according to the sense of justice, and norms and values of society.
After 10 years of reforms, the aims of legal reform have yet to be fulfilled in Indonesia. This can be seen in the results of a survey conducted by the Political and Economic Risk Consultancy (PERC) in 2008, on the judicial systems in Asia, in which Indonesia was ranked 12th -- far below Singapore which came in 2nd.
This showed the low performance of our judiciary, where the practice of "judicial corruption" remains excessive. Many court decisions fail to satisfy the public's sense of justice and invite controversy. Court decisions that do not reflect independence, impartiality, honesty and competence can be seen easily from legal considerations and decisions made by courts, which are not synchronized and often illogical.
It is not surprising that we often hear distrust in judges' ability to find the right laws to apply. There are public perceptions that the law is only enjoyed by the wealthy; that seeking justice is a costly endeavor; that the law apparatus or officers of the court are corrupt; that the quality of the legal profession is lacking; that judges' decisions are not always consistent; and so forth.
In the atmosphere of reformation, justices, judges at the Supreme Court (SC) and the highest-ranking supervisors of the judiciary are expected to act as role models for their subordinate judges and for the public, because they are the last hope for people seeking justice and truth.
Law enforcers must be proactive.
Justices, in addition to creating legal certainty, must also satisfy the public's sense of justice, and are expected to be the means for social engineering.
Therefore the SC, as the last estuary for justice seekers, needs justices that have a way of legalistic thinking that is progressive and not conservative.
A progressive way of thinking means that justices act as more than a "funnel" for laws, i.e. in deciding a case, they not only apply the law (rechtstoepassing), but must also be able to find the law (rechtsvinding), form the law (recthsvorming) and create the law (rechtsschepping).
In trying cases, justices in Indonesia still have their eyes fixed on the principle of legality and the formality of the law, in accordance with the directive of the Supreme Court that a judge is bound by the law.
This condition results in the judges' lack of attention to the philosophical and sociological elements of cases.
One recent case exemplifying this was a Motion for Reconsideration on a case decided by a panel of judges on May 22, 2008. The account of the case is as follows:
An expatriate teacher at an international private school was discharged from the school where she had worked since 1997. The headmaster discharged the expatriate teacher inhumanely, where the discharge was conducted before a permit had been issued by the Labor Dispute Settlement Committee. According to Article 10 of Law No. 12/1964 regarding discharge from private companies, it is regulated that "Discharge without permission as stated in article three is annulled by law."
The dismissal conducted by the headmaster and the international school was an arbitrary decision and was not made in accordance with Labor Regulations which state that if a mistake was made an employee, the employer should first issue a warning or suspended the worker and not discharge them immediately.
Then, in May 1997, the expatriate teacher ("Plaintiff") filed a civil claim based on an unlawful act, against the headmaster ("Defendant I") and the school ("Defendant II"). After going through the process of hearings, i.e. at the District Court of Tangerang and the High Court of Bandung, both courts issued a ruling dismissing the Plaintiff's claim.
The Plaintiff appealed to the SC. The court then declared that Defendant I and Defendant II had committed an unlawful act (onrechtmatige daad) and the discharge of the Plaintiff was annulled by law.
Subsequently, Defendant I and Defendant II filed a Motion for Reconsideration at the SC. The decision of the panel of judges of Motion for Reconsideration was that the dispute between the Plaintiff and the Defendants was a labor dispute which was under the jurisdiction of the Regional Labor Dispute Settlement Committee (P4D) and the Central Labor Dispute Settlement Committee (P4P), so the General Court was not authorized to examine and try the dispute.
From the above explanation, it is clear that the panel of judges of appeal have played their role as progressive justices who promote justice.
But conversely, the panel of judges of Motion for Reconsideration made their decision on the case based only on its normative aspects and without digging deeper into the essence of the case, which involves not only labor matters but also an arbitrary act of the headmaster and international school toward the expatriate teacher.
There is still a lot of homework to be done to deal with legal uncertainty in Indonesia. This example shows that internal supervision alone will not be effective, so there is a need for external supervision (by the Judicial Commission).
Effective internal and external supervision is badly needed. Therefore, there is a requirement for the reformation of the Indonesian judiciary.
The writer is a member of the Governing Board of the National Law Commission (KHN) of the Republic of Indonesia.
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