Awaiting a judicial breakthrough

Awaiting a judicial breakthrough

The public is intrigued at the series of unprecedented
judicial decisions in recent weeks. Lawyer T. Mulya Lubis
believes the time has come for the Supreme Court to make a
historical breakthrough.

JAKARTA (JP): The euphoria over the State Administrative
Court's ruling in favor of Tempo magazine case was still tangible
when the Supreme Court acquitted the defendants previously
convicted of complicity in the murder of labor activist Marsinah.

Later, the Supreme Court gave us still another big surprise
when it released Mochtar Pakpahan pending the result of his
appeal. This was a rare occurrence indeed, particularly when we
take into account the fact that Pakpahan is an outspoken labor
activist, who has attacked a number of government policies.

These events have raised our hopes for improvement in the
functioning of the Supreme Court, a legal body that hitherto has
been perceived as nothing more than a fortress for the law that
has been overwhelmed by external pressures and vested interests.

Why does a candle of hope suddenly seem to be burning on top
of the Supreme Court building?

Many people are still skeptical of the Supreme Court's real
intentions. Some do not even trust the nation's highest court.
There have been too many examples that have disappointed the
public's sense of justice in the past. Their expectation is
simple: The Supreme Court must serve as the fountain of justice.

Of course, the recent rulings have brought a feeling of
relief, but there are also new questions. Will there be
substantial changes in the rulings made by the Supreme Court?
Will the Supreme Court adopt a proactive attitude marked by
judicial activism, such as we have seen in the United States and
India?

The Supreme Court has a powerful position in our
administrative system, but, unfortunately, not sufficiently
powerful. The 1945 Constitution, for instance, does not specifi
cally stipulate that the Supreme Court is the highest legal
authority, nor whether it should be free and independent. Article
24 only states that: The power of the judiciary is exercised by a
Supreme Court and other judicial institutions formed according to
the laws. The composition and authority of these institutions are
determined by the laws.

Therefore, unlike in the U.S., India and the Philippines, for
instance, our Constitution fails to specify the total freedom,
liberty and independence of the judicial authority. On the other
hand, it is also incorrect to assume that there is no
independence whatsoever for the authority of the court, since the
explanation for Article 24 of the Constitution reads: The court's
authority is an independent authority, which means that it is
independent of the authority of the government.

In my opinion, that clarification has provided a
constitutional basis for the Supreme Court to claim and defend
its freedom and independence. Unfortunately, throughout its
history -- particularly in the last 40 years -- the Supreme Court
has failed to demonstrate that it is indeed a free and
independent authority far too many times. Cases in which it
demonstrated its freedom and independence could be considered
exceptions, not the rule.

It is undeniable that the 1945 Constitution is very succinct
and that the role of the Supreme Court fails to be specifically
outlined. It therefore gives us the impression that the Supreme
Court is not really that important. The fact is, in any law-based
state, the Supreme Court plays an extremely fundamental role.

In this situation, our Supreme Court must have the courage and
creativity to formulate its own roles so that it can function as
one of the "branches of power". In other words, it must make bold
changes so that its presence will no longer viewed as merely
complementary.

Thus, whether it will play an instrumental role or not and
whether it will become authoritative or not will depend entirely
on whether the Supreme Court has the prowess to define itself, as
well as to authoritatively engage the other branches of power in
a debate. Should it choose a more passive attitude, it will never
assume any instrumental role. It is in this context, for example,
that the Supreme Court should make a breakthrough by conducting a
judicial review not only of government regulations, but also of
the existing laws and acts.

If it has the courage to do so, it can order the State
Administrative Court chief to let Tempo resume publication,
although the court decision will still have no permanent legal
basis because the case is being appealed. The fact is, in the
case of Tempo, the administrative court determined that the
revocation of the SIUPP publication license is unlawful. Since it
is the duty of the Supreme Court to provide directions to its
subordinate courts, it is expected that the Supreme Court --
whether requested or not -- order the chief of the State
Administrative Court to allow Tempo to be published again until
there is a final court decision that says Tempo must not be
published again.

The challenge that the Supreme Court is facing now comes from
the fact that it must break away from the erroneous and unfair
legal dogma. With the spirit of judicial activism, the Court
should have no significant problem summoning enough courage to
make the breakthrough.

Now is the right moment for the Supreme Court to make a
breakthrough in our legal history to eliminate all the doubts and
skepticism among the people.

It is also time for the Supreme Court to prove that the recent
decisions are not part of a public relations campaigns in
reaction to the criticism from the international public and donor
countries, particularly now that the Consultative Group on
Indonesia's members are going to meet in Paris in July.

It is no secret that we badly need aid from the donor
countries and institutions. It is, therefore, necessary to
reiterate here that we all hope that the recent moves are not
part of a packaged public relations campaign for the consumption
of the providers of funds.

The writer is a noted human rights activist and a Jakarta
corporate lawyer.