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.