Any hope for a reliable judiciary in Indonesia?

Exasperating decisions by the courts have increased pessimism about Indonesia's chances of improving investor confidence and attaining economic recovery. Charles Himawan, a member of the National Human Rights Commission and professor of law at the University of Indonesia, says top officials have failed to take seriously the warnings of the international community.

JAKARTA (JP): When United Nations Secretary-General Kofi Annan visited the Jakarta office of the National Human Rights Commission on Feb. 16, I had the opportunity to discuss with him various decisions by the Indonesian judiciary. He specifically emphasized that he could accept either an acquittal or a guilty verdict provided it was handed down by a reliable judiciary.

Annan's reliable judiciary sounds simple. However, it embodies an implicit requirement on the part of Indonesia to bring to justice violators of economic laws, and certainly also violators of human rights. To do this, Indonesia must restructure its judiciary substantially to make it reliable.

The perception of international financial institutions and investors is greatly influenced by the decisions of the Indonesian judiciary.

The question then arises: what is the criteria for a reliable judiciary? The criteria is not one decision only, but tens, even hundreds, of decisions handed down over a period of time.

When the British High Court backed a government decision to send Chile's Augusto Pinochet home for reasons of health, there certainly were complaints. However, both domestically and internationally the decision was considered as having come from a reliable court, a perception based on hundreds of earlier decisions.

The Indonesian judiciary, through decades of questionable decisions, is regarded as unreliable. Briefly in the 1970s it was only the district courts which were seen as unreliable. Many legal practitioners remained silent at the time, believing there was still hope through the appeals process.

However, in the 1980s the higher courts also seemed to become contaminated and in the 1990s the Supreme Court apparently fell victim to the virus.

More than likely it is this perception that prompted Annan to diplomatically "warn" Indonesia to restructure its judiciary. The dialog with Annan led to a discussion concerning the possibility of using noncareer and ad hoc judges, as well as noncareer and ad hoc prosecutors, to establish a reliable judiciary. Many people in Indonesia's legal circles have made similar proposals.

One suggestion was to replace all the current judges, particularly those on the Supreme Court, including the chief justice. On paper this plan is ideal, but in practice it is impossible to take this line of reform. Besides this approach is not fair to those judges untainted by corruption.

A second alternative is more feasible -- to include noncareer judges on the panel of judges hearing cases with direct implications on the country's economic recovery, whether they are civil or criminal cases.

Attempts to improve the reliability of the judiciary continue, particularly following the acquittal of Djoko Tjandra, supposedly the main actor in the Bank Bali scandal. Though the decision to acquit Djoko was not final, it attracted world attention because of its implications on economic recovery. Furthermore, it indicated the types of verdicts which could be expected in the future.

The World Bank, which plays a vital role in the country's economic recovery, saw the importance of the verdict, immediately "questioning" the acquittal. The saddest part is that most Indonesian officials failed to take the verdict and the ensuing reaction seriously; in fact they should have been valued in the same manner as Annan's "warning".

Both Annan's remarks and the world's reaction to Djoko's acquittal should be viewed as a warning that such verdicts are unacceptable, both in the national and international sphere.

However, such a perspective is possible only if the country's three highest officials -- Speaker of the People's Consultative Assembly Amien Rais, President Abdurrahman Wahid and Speaker of the House of Representatives Akbar Tandjung -- share a similar vision regarding the deplorable condition of the judiciary.

The three must first have a common political goal to establish a reliable judiciary. Second, they need to translate this common goal into a common political will to act. Third, they need to materialize this political will into substantive rules that provide a legal basis for the involvement of noncareer judges and prosecutors in criminal or civil cases where the economy is at stake.

The involvement of noncareer judges and prosecutors would at least open the door to a reliable judiciary, which would better ensure the success of the Indonesian Bank Restructuring Agency (IBRA) in selling the US$30 billion in assets currently under its supervision.

Many lawyers fail to realize the potential of this vast amount of money in revitalizing the economy. To grasp this, they could simply look at the willingness of the Consultative Group on Indonesia to help the country.

For the year 2000, the consultative group is providing Indonesia with $4.73 billion, less than one sixth of what is under IBRA's control. As far as money is concerned, China's Supreme Court ruled that a corruption case involving "only" $860,000 was enough to warrant the death penalty for the former vice governor of Jiangxi province, Hu Changquing.

Such a decision reflects China's ability to implement a reliable judiciary as required by Annan and the World Bank. Perhaps this is one of the reasons why China's economy has developed quickly in recent years. China's business partners have faith that they will be protected by the country's judiciary.