Clean govt begins with clean judiciary

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.