Clean govt begins with clean judiciary

Accusations of collusion in the Supreme Court recently grabbed headlines in the Indonesian press. Scholar Charles Himawan outlines what constitutes an independent judiciary.

JAKARTA (JP): Maj. Gen. A.M. Hendroprijono rightly observed that a code of ethics is needed for clean government (The Jakarta Post, June 19, 1996), but because Indonesians have not reached a sufficient level to self-regulate the administration the judiciary must have the respect and power to impose this code.

Historically, the struggle for an independent judiciary was primarily aimed at keeping the judiciary from being politically corrupted. Making use of Montesque terminology, it is the struggle for a judicial power free from the executive power.

History proves that justice is scarcely obtained when the administrator of a nation is also the administrator of justice. And, as quality of life improves, the struggle encompasses a judiciary free from financial corruption.

A corrupt judiciary earns little respect, but attempts to subvert a corrupt judiciary will continue as long as the losing party sees even a minuscule opportunity.

Even the smallest loop-holes, therefore, must be closed. The judiciary must remain free from collusion, at whatever cost, because this is the only agency which can ensure clean government.

The executive branches of a government may be as corrupt as can be, but if the judiciary is clean, the corrupt actors can be brought to justice. Eventually, after regular cleaning, the corrupt agencies will be eliminated. It is clear that a clean and therefore respected judiciary brings about a clean and respected government.

Singapore has often been hailed as an example of the close relationship between a clean government and a judiciary free from collusion, a euphemism for corruption. The respect that Singapore's judiciary brings has become legendary and is rightly envied.

Within ASEAN, Malaysia and the Philippines are also taking serious action to eradicate corruption in their judiciary. In Malaysia, the judiciary was recently shaken by a long anonymous poison-pen letter which detailed corruption among judges.

Malaysian Prime Minister Mahathir even cautioned judges about their relationship with businesspeople.

Legal evidence warranting prosecution is always difficult to obtain. The way to eradicate alleged corruption, therefore, is to employ wisdom and virtuous analysis into the living environment of the judges.

The will to eradicate corruption must be followed by the admirable performance of the judiciary. Such performance may be proven by rendering judgments that reflect society's prevailing sense of justice.

The condition of the judiciary in the Philippines is best summed up by Cardinal Jaime Sin. He says that "injunctions, court postponements and decisions are often for sale". However, reform is being initiated by Senator Fernan who hopes that his move "will restore faith in the courts and the integrity of our laws" (Asiaweek, June 7, 1996).

The observation made by Cardinal Sin, and the concern expressed by Mahathir and Fernan, reflect the plight of Justice Adi Andojo Soetjipto in Indonesia. It is worthy to note that their fight for an independent and clean judiciary was recently recognized by the United Nations Commission on Human Rights in its Resolution No. L. 74 on April 17, 1996.

The concern over the judiciary's performance is understandable, for as one noted Indian jurist observed: "a modern judiciary cannot afford to plead incapacity when social issues are addressed to it" (Newsweek, Feb. 5, 1996).

On the other hand, the judiciary cannot usurp the executive by responding to every social grievance. This tendency was recently illustrated by India's Supreme Court. Its overstep was eventually criticized.

A great judge knows when to respond and when to keep mum. Underlying this subtle ability is a judiciary free from collusion.

The day the judiciary starts axing corrupt judges is the day clean government begins.

The writer is Chairman of the Human Rights Subcommission for Education, and Professor of Law at the University of Indonesia.