Courts of law: Now they're independent, now they're not

Courts of law: Now they're independent, now they're not

By Imanuddin

JAKARTA (JP): With a growing awareness that the judiciary is an important, if not the most important bastion of democracy, 1995 saw an endless debate on whether the Indonesian courts of law are really independent of the executive branch.

The year saw court verdicts of politically-charged cases that sent conflicting signals; at times showing the courts to be truly independent, but at other times reflecting the grip, or supremacy the executive branch has over the judiciary.

Is this trend confusing? Maybe, but this is a confusion that campaigners of democracy could live with. The year saw an unprecedented number of court verdicts of major political cases that went against the government, thanks in large part to independent-minded judges prepared to risk their jobs to defy covert government pressure.

This is the year that saw the Jakarta State Administrative Court's ruling against the government's decision to ban Tempo, the news magazine considered the middle class's favorite, as unlawful. The ruling has since been upheld by the appeals court and is now awaiting final verdict from the Supreme Court.

The year saw the Supreme Court overturn the lower court's guilty verdicts in the highly publicized murder of labor activist Marsinah, leading to the release of nine people who had been falsely accused of the murder.

This is the year that also saw the release of labor leader Muchtar Pakpahan and soothsayer Permadi Satrio Wiwoho -- both were battling the government in courts -- due to some previously unused clause.

Yet, 1995 has also been the year people were jailed for dissenting against, or criticizing, the government.

In August, the Central Jakarta District Court sent Ahmad Taufik, Eko Maryadi and Danang Kukuh Wardoyo -- activists from the Alliance of Independent Journalists -- to jail for publishing and distributing magazines highly critical of the government, on the grounds that the periodicals contents were sowing public hatred against the government.

Soothsayer Permadi was prosecuted in a Yogyakarta court and found guilty of blasphemy for calling Prophet Muhammad a dictator, a remark he apparently made in a seminar more than a year ago and made in response to a question. Even the court appeared to agree that Permadi's prosecution was based more on the authorities' irritation at his anti-government stance. Barely 24 hours after finding him guilty and sentencing him to seven months imprisonment, the court ordered his release, saying that the maximum six months detention period had expired and that he should be allowed to wait for the outcome of his appeal out of jail.

In another instance, the Indonesian Forum for Environment (Walhi) lost a case it had filed with the Jakarta State Administrative Court against the Ministry of Mines and Energy. Walhi was contesting the ministry's decision to approve the environmental conservation program of PT Freeport Indonesia, an American gold and copper mining company with a huge operation in Irian Jaya.

The case was tried by Benjamin Mangkoedilaga, the same judge who, a few weeks earlier, had ruled in favor of Tempo, thus raising hopes that the environmental group could also win the case. Alas, Benjamin dismissed Walhi's case and ruled in the government's favor.

Sri Bintang Pamungkas, the controversial politician who lost his seat in the House of Representatives in May, fought three court battles against the government, further providing test cases on the extent of the court's independence from the government.

Bintang lost the first case -- one he filed against President Soeharto at the Jakarta State Administrative Court for dismissing him from the House -- and won another, one he filed at the same court against Attorney General Singgih for slapping a ban him traveling overseas.

The score is, so far, one apiece.

His third court battle is being fought at the Central Jakarta District Court. In this one, he is being accused of insulting President Soeharto. The trial is continuing.

Judge Benjamin, whose presence in Jakarta will soon be missed as he is up for promotion and will move to Medan, North Sumatra, said judges dealing with cases involving the government face pressures from both sides, not just from the government.

He said that whichever way a judge decides, he is likely to face all sorts of accusations of lacking impartiality.

No doubt the few decisions that went against the government this year have raised the hopes of those concerned with Indonesia's democracy, that some judges have the courage to fight off government pressure.

What is more encouraging is that more and more of them are now coming out and appear to have ruled with their conscience.

Judge Benjamin's ruling last May in the case of Tempo versus the Minister of Information Harmoko had been thought to be a one- off victory, and most had expected the court to overturn the appeal decision and hand Harmoko a sweet victory.

Goenawan Mohamad, the former editor of Tempo said he was content with the victory in the lower court, something that he never expected in the first place.

So, it was a big surprise for him and many others when the court upheld Benjamin's verdict favoring Tempo. Even the military and senior government officials did not fail to seize the opportunity to illustrate the ruling as a sign of the growing strength of the courts of law.

"The Indonesian legal institutions have strengthened," said Maj. Gen. Syarwan Hamid, assistant to ABRI's Chief of Social and Political Affairs.

Minister/State Secretary Moerdiono said the ruling was another sign of greater political openness in Indonesia. "The court's independence is an important sign that even the government is subject to controls by others," he said.

Although Goenawan and his associates do not expect the Supreme Court to rule in Tempo's favor, they could still be in for another big surprise. A lot depends on who handles the case in the Supreme Court. Some Supreme Court judges have shown they can be just as independent, if not more than Benjamin.

Andi Muis, a constitutional law expert at Hasanuddin University in Ujungpandang, said Benjamin's boldness may have encouraged a number of other judges to also defy government pressure.

Andi said Judge Benjamin has set a precedent, showing other judges the way. However, his warning was not to raise one's expectations too much. "I believe that at the most, 25 percent of Indonesia's judges are independent," he said.

He also believed that the Supreme Court will not rule in Tempo's favor, noting that the Supreme Court "is very close to the administration".

Of course, he could be wrong.

The Supreme Court surprised many this year when it ordered the release of all nine people convicted for the murder of labor activist Marsinah, after finding that the highly-celebrated trials were wrought with legal flaws.

The court's decision was a slap in the face for the police and the military because it confirmed an earlier report by the National Commission on Human Rights that the police were prosecuting the wrong people and that the nine people were forced to take the murder rap after they were subjected to torture.

Police have reopened the investigation but have not yet found any new suspects.

The judge behind the surprise ruling was Deputy Chief Justice for General Crimes Adi Andojo Soetjipto. Later in the year, Adi made news headline again when he ordered the release of union leader Muchtar Pakpahan, who was serving a four-year jail term for allegedly mobilizing a workers riot in Medan the previous year.

Justice Adi found a clause, previously never used, that said a defendant can only be detained for a maximum of 60 days and must be released until a final court ruling is reached. Given that Muchtar was appealing against his sentence to the Supreme Court, Adi decided to apply the clause and release the defendant.

Adi and Benjamin were considered for this year's prestigious Yap Thiam Hien human rights awards because of their boldness and courage in ruling against the government.

However, their names were dropped from the nominations because the awards committee decided that as judges, it is their profession to see that people's rights are respected.

Still, many feel that some kind of recognition is still necessary for these two respected judges, for breaking new ground in the Indonesian judiciary.