An independent judiciary?

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.