First 100 Days

First 100 Days
Legal Reform Agenda for the New Government

Mas Achmad Santosa
and Nenad Bago
Jakarta

With elections this year over, and front-runner Susilo Bambang
Yudhyono now a president-in-waiting, unparalleled expectations
are placed on the new administration to improve overall
governance -- including in judicial, prosecutorial and police
sectors.

Nevertheless, some are skeptical as it has been observed that
neither political parties nor presidential candidates managed to
produce a comprehensive plan for legal and judicial reform.

In an effort to propel governance reform forward by providing
the new president with clear reform objectives and a detailed
action plan for their implementation, during a meeting in
Yogyakarta on Aug. 16th, the Partnership for Governance Reform in
Indonesia presented to Susilo "20 Programs for Improved
Governance". The document provided a detailed reform agenda based
on the partnership's experience in facilitating, developing and
implementing good governance practices.

Learning from the experiences of post-reformasi governments,
Indonesia's failure to accomplish its legal reform agenda was
caused by numerous factors, particularly the following five:

First, a lack of leadership within the government to ensure
comprehensive and continuous legal and judicial reform.

Second, the failure of the government to produce a systematic
and comprehensive legal and judicial reform program.

Third, a strong opposition to exhaustive reform within the
government, the legislature and the judiciary.

Fourth, the established practice within all three pillars of
power of carrying out legal and judicial reform programs through
elitist, ad hoc and partial changes -- naturally, this partial
approach failed to produce significant results.

Fifth, the lack of will within the government to utilize
already developed legal and judicial reform programs and concepts
by the National Law Commission -- which was established as an
advisory body for the President.

Bearing in mind these missed opportunities, it is important to
remind the new president to develop programs for the first 100
days in office that are aimed at the restoration of public trust
in the rule of law.

These programs should include: First, the careful selection
of leading public figures for a "legal dream team". Second, the
definition of a set of concrete actions -- a "shock therapy" --
which would send a clear signal to the public that the new
government is ready to tackle corruption, and show potential
corruptors that corruption activities will be vigorously
challenged. Third, the enhancement of the development of an
external supervisory mechanism for the judiciary, public
prosecution and the police, through the establishment of
judicial, prosecutorial and police commissions respectfully.

Ideally, the "legal dream team" should comprise an Attorney
General, National Police chief and Minister of Justice who have
clean track records, are recognized as pro-reform minded and are
publicly acceptable. This "legal dream team", together with the
head of the Corruption Eradication Commission, should perform
"shock therapy" in their institutions, proving that they are able
to be the front-runners of a comprehensive and serious legal and
judicial reform.

Within the context of the "shock therapy", activities can be
twofold: First, to ensure that all corruption-related judgments
awaiting execution are promptly executed, in a show of commitment
to combating of all forms of corruption. Second, to identify ten
exemplary corruption cases that should be given priority.

These ten identified cases should be selected based on the
following basic criteria: First, the amount of assets that would
be returned to the State. Second, the public interest in the
case. Third, the impact of the crime in question on society.

Certainly, there is no lack of cases from which the ten can
be selected -- presently, 72 corruption cases are being processed
by the Attorney General's Office, 64 corruption cases by the
National Police and six large corruption cases by the Corruption
Eradication Commission.

The strengthening of the external supervision of judicial,
prosecutorial and police institutions -- including the
strengthening of the role of the Corruption Eradication
Commission -- should include the following measures:

First, support for the Corruption Eradication Commission via
the issuance of a presidential decree, which would give the
commission the authority to hire personnel and define other
administrative issues that are presently slowing down its
performance. In addition, the government should provide the
commission with sufficient funds.

Second, issuing a presidential decree on establishing a
selection committee for an independent judicial commission. The
significance of the establishment of a judicial commission is
unquestionable -- weak internal control calls for the
establishment of an external control mechanism of the judges'
performance. The establishment of the judicial commission's
selection committee must be swiftly followed by the official
appointment of the seven commissioners -- selected in a
transparent and participative selection process.

Third, instruct the Attorney General to implement the relevant
strategic recommendations, included in the "Governance Audit of
the Public Prosecution Service", as a blueprint of the Attorney
General's Office reform which was finalized in 2001. Moreover,
during his first 100 days in office, the president should take
initial steps toward the establishment of a prosecutorial
commission, which would improve the performance of the public
prosecution service (in accordance with Article 38 of the Law
16/2004). One of the first steps should be the establishment of
an independent selection committee, which would be tasked with
the selection of the commissioners.

Fourth, the establishment of an independent selection
committee to select the National Police commission -- an external
supervisory mechanism for police conduct.

The existence of external supervisory institutions for the
judiciary, public prosecution and police would expedite the
process of institutional reform within those institutions, in the
midst of huge public distrust toward their respective internal
supervisory mechanisms.

Susilo looks set to become the sixth president of Indonesia.
For him, legal reform is not unknown territory -- he was one of
the initiators of the law summit, facilitated by the Partnership
for Governance Reform, which brought together heads of state
legal institutions, leaders of the bar association and non-
governmental organizations in an effort to develop a
comprehensive legal and judicial reform agenda.

Moreover, Susilo also stressed the need for comprehensive
legal and judicial reform during his mandate as a coordinating
minister for political affairs during the law summit. The single
most crucial step for Susilo will be to identify and appoint
people who will lead the legal and judicial reform -- the "legal
dream team".

The writers are Legal and Judicial Reform Advisors in the
Partnership for Governance Reform in Indonesia.