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.