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.