A good way to fight judicial corruption

Frank Richardson, Norwich, UK

Of all the different types of corruption, judicial corruption is the most insidious and damaging because it legitimizes that which is criminal. Through it criminals are absolved and that absolution in turn gives them power over others and reason to fear them. Corrupt judges, in this way, sow much discord in society, which they add to by using their power to incarcerate, dispossess and break up the families of the innocent. This discord may then, as in Aceh and West Papua, translate into separatism that the military will feel it must crush in order to maintain a unitary state.

One good indicator of the level of judicial corruption in a country not threatened by its neighbors is, therefore, the amounts, both official and unofficial, spent on the military and armaments. Another indicator is the extent of the backlog of appeals to the Supreme Court as a manifestation of the failure to obtain justice in the lower courts.

Another indicator is a low per capita income in a resource- rich country resulting from the failure of assets to convert to capital because corrupt judges water down legal title through judicial uncertainty. In Indonesia all three of these indicators give cause of concern, demonstrating how far reaching and pervasive the effects of judicial corruption are.

What, therefore, is to be done? Tackling judicial corruption is clearly the key to addressing pressing problems in society such as inequality, environmental degradation, crime, rights abuse and poor economic development and governance and, as such, we should it to be a major challenge. The challenge is to make judges accountable to senior judges.

However, because judges at the top of the judicial pyramid, are accountable to no one, not even the press which they have various means to silence, it is essential they are committed to the highest levels of integrity in the interest of the common good.

If the will is there, however there are a number of very practical steps that can be taken.

The first, and arguably the most important, is the adoption of a suitable judicial code of conduct. Such a code, known as the Bangalore Draft, was put together under the auspices of Judge Christopher Weeramantry a former Vice-President of the International Court of Justice with the assistance of Chief Justices or senior judges from Bangladesh, India, Nepal, Nigeria, South Africa, Tanzania and Uganda.

In drafting the code, in addition to the United Nations Basic Principles on the Independence of the Judiciary, amongst those judicial codes, charters and statutes taken into account were those of India, Bangladesh, Malaysia, the Philippines, the European Union and the United States.

The Bangalore Draft addresses problems that are endemic in Indonesia such as judges using their homes to receive bribes, being influenced in their judgments by family, social and political relationships and many other blatantly unjust practices that have become common place.

Once such a judicial code of conduct is adopted it needs to be monitored and policed. A disciplinary panel of judges would need to be established along with an investigative unit. Both would be monitored by judges acting in an advisory capacity who are not subject to peer pressure from within the Indonesian judicial system, namely judges from other Asian states (perhaps ASEAN has a role here and could even create Southeast Asia's equivalent to the British Commonwealth's Privy Council).

To ensure the Indonesian members of the disciplinary panel will have no fear that their newfound integrity will boomerang on them, they would need to be granted an amnesty for all prior judicial wrongdoing they confess to, providing they commit themselves fully to upholding the highest standards of judicial integrity. Although it may go against the grain for some, the concept of conditional amnesty for judges is essential if a new judicial leaf is to be turned in Indonesia.

The investigative unit would need to consist of several teams working independently to keep a careful eye on the comings and goings at the homes and offices of judges and would have the authority to monitor the bank accounts and assets of judges and their immediate family members.

The members of the disciplinary panel and the investigative unit would be specially trained, highly paid and subject, where they transgress, to severe penalties that are commensurate with the importance of their role in society.

Modern digital technology could be used not only to help carry out surveillance, but also to remotely observe and record how judges conduct themselves in their courts. The internet, Integrated Services Digital Networks, digitized documentation systems and video conferencing would also furnish judges with advice and training and provide the public with information, transparency and clear, speedy process within the court system that is likely to substantially reduce the need for appeals.

In this regard, Indonesia has much to learn from the government of Andhra Pradesh in India that has boldly introduced e-governance to, inter alia, root out corruption generally.

Details of the international funding and expertise available to achieve the above cannot be included in such a short article as this, but there is little doubt they could be obtained and from a diversity of sources. The recent announcement of US$20 million to be donated by the U.S. government over four years to help the Supreme Court develop the Commercial Court and an anti- corruption court is but one example.

What the above does show is just a few of the practical steps that can be taken to root out corruption in the judiciary and, therefore, the country generally, provided a bold, innovative and pro-active approach is adopted.

The day a judge is jailed for corruption as a result of such measures, will be the day we will know judicial reform in Indonesia is in earnest.

The writer is a lawyer.