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

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.