Collusion a blow to the legal system

Collusion a blow to the legal system

The collusion case in which a Supreme Court justice has been
implicated has drawn wide media coverage. T. Mulya Lubis takes a
close look at the issue.

JAKARTA (JP): During negotiations with an Italian company
recently I got a glimpse of what foreign lawyers think of the
Indonesian judicature.

The lawyer of the company insisted that the governing law for
a joint venture should be Swiss law. And any dispute between the
Italian and the Indonesian partners was to be settled at the
Court of Arbitration in Paris.

I objected to the Italian lawyer's idea and argued that the
Indonesian law should be used as the governing law, as well as in
the case of any dispute, since the company will be located in
Indonesia.

The Italian lawyer for the company which is based in a small
town in Italy did not falter, however forceful my arguments were.

My question is: Why did the Italian lawyer reject Indonesian
law and jurisdiction?

I gathered there was distrust toward the Indonesian legal
system. There was anxiety on the part of the Italian legal
counsel that there would be collusion in the court of justice
which would harm the Italian company.

I was deeply ashamed and helpless. My conscience says that the
Italian legal counsel is right, and collusion does occur in our
courts of justice.

No less than former deputy chief of the Supreme Court Asikin
Kusumaatmadja himself once openly admitted that about half of our
judges were corrupt. Many others share his opinion. Some even
think that it is hard to find judges with integrity in Indonesia.

The people have become cynical toward law and regard it simply
as a trade commodity. Courthouses have become havens for
injustice, where the weak are stifled and the strong protected.

Of course there are a number of exceptions. The Tempo magazine
ruling is a case in point. The Jakarta State Administrative Court
and the High Court decided against the information minister's
decision to ban the publication.

Has there never been any endeavor to establish a clean
judiciary institution? Honestly, there have been some. But rumors
of collusion prevail, the latest one being the Gandhi Memorial
School case, which is said to involve a judge. The rumor was
widely publicized in the media through a letter from a deputy
chief of the Supreme Court, Adi Andoyo Soetjipto.

It is incorrect to merely accuse a judge of committing
collusion. Collusion involves other parties, namely prosecutors,
court clerks, lawyers, defendants and even businessmen.

Businessmen are known for liking to gain the upper hand by all
means possible. Hence, the offense in collusion is not only
committed by the judge but by the other parties involved.

Collusion is the collective sin of a mentality supported by a
corrupt culture and system. It is as if there exists a system of
bureaucratic life or social life that snubs ethics and morality.
The outcome is a sick society.

The impact of rumors of collusion in our judiciary
institutions is very extensive. They lead to the conviction that
cynicism toward law will become a regular feature in our daily
life, as well as occurrences of contempt of court.

Foreign investors will refuse to put themselves under
Indonesian jurisdiction. And this rejection of Indonesian
jurisdiction by a foreign company must be seen as a disdainful
act. Unfortunately, even after so many reports about contempt of
court, our judges seem to be unaffected and unwilling to heed
criticism.

Our founding fathers aimed at creating a state based on law
and not a state based on power. They would certainly be saddened.
We have strayed far from our noble objectives as a nation and as
a state. And it is sad that the deviation takes place in the body
of the judiciary which should have safeguarded and ensured
justice for the people.

As someone once put it succinctly, and perhaps correctly, the
corruption of justice in this country is catastrophic.

Perhaps it is not an overstatement for people to coin the
phrase "Mafia of Jurisdiction", a term borrowed from Italy,
which denotes court bandits roaming the halls of justice.

There has been a proposal to establish an independent
investigative board to probe the latest allegation of collusion
in the Supreme Court. However, that body decided to employ the
existing internal supervisory system in the probe instead.

What is being overlooked here is a continuous supervision
system involving not only internal parties but also external
control exerted by professional organizations and the press.

The independence of jurisdiction in other countries is
supported by a strong and free press. Constitutionally we need to
once again bring up the matter of the existence of the judiciary,
which does not seem to have sufficient guarantee of independence,
especially if we read the Law on Judiciary Power (Law No.14/1970)
and the Law on Public Judicature (Law No.14/1985).

The duality of authority that confronts judges because they
are under both the Ministry of Justice and the Supreme Court must
be terminated to ensure independence.

If we fail to resolve collusion and the "Mafia of
Jurisdiction" problem, it is perhaps time for us to ask whether
this state is really based on law. All of us, especially the
government and the people's representatives, have to determine
the direction and objectives of our nation.

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

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