Commercial Court badly needs full societal support (Part 1 of 2)

Sebastiaan Pompe, IMF Residence Legal Advisor , Jakarta

The editorial of The Jakarta Post on Oct. 21, 2003 describes the commercial court system as bankrupt. It argues in favor of promptly enacting the Bankruptcy Law Amendment and "of changing the rules of the game". This means, according to the editorial, that procedures must be more clear-cut, and proceedings more accountable and transparent.

It is clear that the commercial court has considerable problems of various sorts and I fully support the general drift of this editorial. It is critical that the new Bankruptcy Law is enacted promptly as envisaged in the government White Paper. It will put an end to the insecurity that comes from a Bill pending endlessly in Parliament, and it includes some useful new features that should enhance the effectiveness of bankruptcy proceedings. Also, it is useful to continue enhancing mechanisms of transparency and accountability, as the editorial proposes.

At the same time there are some aspects that the editorial perhaps fails to fully capture, and which are mentioned here to add some depth and perspective.

First, the editorial says that rules must be changed to make the court more accountable and transparent. It is not certain that this is an issue that can be resolved by new rules alone. In fact, judging just by the rules, the commercial court continues to be the most advanced and prominent experiment in judicial reform in the country. Of all courts in the land, the commercial court has the most accountable and transparent regulatory set-up.

To give some examples, all commercial court decisions are accessible to the public and in fact published (Himpunan Putusan Pengadilan Niaga dalam Perkara Kepailitan by Tatanusa). It is the only court with dissenting opinions, so the individual position of judges can be identified. Dissents have in fact been issued. The decisions are analyzed and commented upon, which comments are accessible on the internet (Hukumonline.com -- Bappenas banner).

It is the first court in the land to introduce ad hoc judges, by which professional standards and accountability are enhanced. It is the only court with standard operating procedures, which are accessible on the internet, and which aim at pinning down procedures with standard forms and fixed administrative routines which are both published and available on the internet (Book: Mahkamah Agung RI: Pedoman Pelaksanaan Administrasi Penyelesaian Perkara Niaga (2003); Website: Hukumonline -- Bappenas banner: MOCCA).

Reality is however, that these various incisive measures of transparency and accountability have failed to generate the expected responses. This is not just an institutional problem, as in fact civil society has failed to respond also. The private legal professions, the universities, the NGO's (with some, but few, exceptions) do not use the transparency measures such as published decisions to conduct solid legal analysis. They have not triggered public debate, or made it an issue in law journals, etc. The transparency has failed to generate structured academic debate, which is the necessary support infrastructure for systemic court decisions. The various efforts in this area continue to be largely sponsored by donors and hence are brittle.

The state fails to respond equally. Until recently, there has been no noticeable effort by the Judiciary or the Government to make performance assessment of court decisions part of the career development of judges. Basically, the quality of the decisions does not seem to matter much for judicial career development, and accountability serves no clear purpose. The issue therefore is less whether accountability systems throw up enough data, but whether and how such data are used by civil society and the judicial administration to assess judges.

All legal systems require constant adjustments and improvements, indeed sometimes radical overhauls. But in this area the principal problem resides less in the set of rules and procedures as than in the way they are being applied.

Second, it is not hard to agree with the editor's observation that ongoing and structured professional education is necessary. Here again, the commercial court has served as pilot for reform for the judiciary as a whole. The first 16 commercial court judges were specially selected and exposed to a very rigorous training program over a period of five years.

They were trained infinitely more, and more intensively, than any other judge in the land. The training was provided by the Indonesian government, and a whole range of donors including the IMF-Dutch TA, the World Bank, AusAid and various others. Special training manuals and reference works were developed in the process. The training was so heavy at times that it threatened to interfere with court sessions.

The views expressed in this article are his own and do not in any way reflect those of the IMF.