An independent judiciary?

Todung Mulya Lubis, Lawyer, Jakarta

Agus Sutoto, the public prosecutor in a Rp 500 million (about US$ 58,139) bribery case, has demanded a four-year jail sentence for the accused, Jakarta High Curt Judge Faozatullo Zendrato. Agus claims Faozatullo was guilty of receiving bribes during his term of office at the Supreme Court.

He was finally sentenced to one year in jail, which the defendant may now appeal. This is a rare exposure of "judicial corruption".

There was, of course, the well-publicized bribery case involving judge Endin Wahyuddin. Endin, the whistle-blower in this case, was found guilty of bribing judges, though the three judges accused of taking bribes, were declared not guilty although Law No. 11/1980 on bribery states that the briber and the bribed should receive equal punishment. The case came up against a wall of solidarity among the judges, which makes cleaning up the courts impossible.

If court walls could talk, it would tell of many transactional conversations between judges and those who bribe them. If the cell phones of judges could talk, their conversations and SMSs would reveal rampant corruption, collusion and nepotism in the judiciary.

A recent survey by Partnership for Governance Reform shows that institutions which theoretically exist to uphold the law (the courts, police, the Attorney General's Office, customs and excise) are perceived to be the most corrupt institutions.

The judiciary is not free and independent, no matter what the law says, and therefore it is exposed to bribery. What is destroying the judiciary is money -- and the irresponsible businessmen, women and advocates who misuse and buy the law and court verdicts.

There are many dirty lawyers who try to bribe judges. As one advocate is reported to have said, "I am not the only one". The symbiotic mutualism between corrupt judges and dirty lawyers sabotages both the rule of law and the free and independent judiciary.

This seems an old story, but people's eyes have been popping to see and hear the testimony of a lawyer who attempted to bribe murdered Supreme Court justice Syafiuddin Kartasasmita in the case of defendant Tommy Soeharto. It is alleged that Rp 50 million of the Rp 100 million bribe was for the lawyer herself. Strangely, this witness cited a letter signed by the lawyer. This same lawyer also reportedly tried to bribe a security officer into revoking his admission in court, with Rp 2 million.

Was the lawyer unaware that giving evidence before the court is given under oath? Is the lawyer unaware of perjury?

Defending the accused is a lawyer's professional obligation but it must be in line with the law and professional ethics. Many think that a country like the U.S. has a well-established legal and professional system; but the Enron case has shown how fabricating lies can ruin even giant companies, like Arthur Andersen.

In Indonesia, judges, police officials and lawyers regularly break the Code of Ethics. However, what is most in the corrupt judges and dirty lawyers' favor is the lenient selection system. Anyone can become a judge provided they have the title,Sarjana Hukum (SH, Law Graduate), without any definite criteria. Poor quality makes for a "rubbish" profession. The combination of gavel holders defending corruptors unite in causing low morality and limited knowledge of the law. Improvement by the Supreme Court may well take an entire generation.

This bad combination makes the SH the object of endless ridicule. One joke says: What do you call 5,000 dead lawyers at the bottom of the ocean? A good start. Why won't sharks attack lawyers? Professional courtesy!

The profession has certainly changed from its once well- renowned and noble character to one that is rotten at its core. But the judge never claps with one hand. The other hand is the dirty lawyer and the legal brokers who hang around in the court and judges' houses.

We've always thought that the judiciary's independence does not exist because of the government's continued systemic intervention. A judge depends on two superiors, the Supreme Court and the Ministry of Justice. A judge is also a civil servant, though the influence of military power seeps through the court rooms.

Judges must have forgotten their oaths. The decision of the court opens with "Justice by virtue of the One Supreme God". Does this not make judges tremble? Many think that legal institutions are irrelevant and that there is nothing wrong in taking the law into one's own hands and disobeying court decisions.

So radical change must begin, starting with the Supreme Court, followed by the high courts and district courts. But will change affect the person or the system? It should be both.

The replacement of judges must be accelerated, which also requires an audit to straighten up the Supreme Court and to end its image as a market for legal brokers.

I once proposed that the Supreme Court needed both a financial audit and a governance audit. The Chief Justice welcomed this proposition, but there are no signs that the audit will take place. Many parties have opposed the idea of an audit and reform of the Supreme Court.

We must begin to reform our legal system. For a large, densely populated and expansive country, can we still have a judiciary in which all judicial bodies end at the Supreme Court? Must all types of cases end at this court?

No amount of judges would be enough, for with economic progress and higher awareness of the law, court cases may drastically increase. Then again, cases might drop because of public distrust.

Decentralization must be widened to that of the law including the judicial process. Provincial high courts should be the highest institution to resolve disputes, and the Supreme Court should only handle cases relating to fundamental and constitutional rights.

If the Supreme Court is still burdened with making the final decision for all types of cases, it will be forced to be a market where the law is bought and sold. Amid temptations from the market, the Supreme Court will also depend on the "market taste", killing any chance of the judiciary's independence.

The traditional role of a court should always be remembered. J.A.G. Griffith in his book, The Politics of The Judiciary, wrote that traditionally, the judiciary functions "to decide disputes in accordance with the law and with impartiality". The law is thought of as an established body of principles which prescribes rights and duties. Impartiality of the judge does not mean his personal bias or prejudice, but also the exclusion of irrelevant considerations such as his political or religious view.

Griffith is right, but we must add financial consideration as another factor, which nowadays is so obvious.

The above is a condensed version of the writer's presentation at a seminar on eastern Indonesia on June 2 in Jakarta.