How not to intervene in a judicial process

How not to intervene in a judicial process

A string of dramatic judicial decisions have unveiled
themselves in recent weeks, including a Chief Justice's decision
over a land case in Irian Jaya, and the acquittal of nine
defendants in the murder case of labor activist Marsinah. Law
expert Charles Himawan takes a closer look at independent
judicial systems.

JAKARTA (JP): The case of Flor Contemplacion recently caused a
serious rift between Singapore and the Philippines, because the
Philippine's executive power tried to intervene in Singapore's
judicial system. There are certainly various considerations for
the intervention, but the constitutional considerations and their
political and economic consequences are the most important.

World constitutional history has taught that in order to
administer justice, judicial power should be separated from
political power. In 17th and 18th century Europe, stories of
painful injustices were abundant when the two powers were
combined. Aware of this, Montesque (1689-1755), in his master
piece De l'esprit de lois, advocated the separation of such
powers. The United States (1776) was the first modern state to
adopt this system. In post World War II, many new nations,
including Indonesia (1945), followed with their own variations.

Today, justice is almost universally administered through a
three-tier system, namely the District Court as the court of
first instance, then the Court of Appeal and finally the Supreme
Court. Preventing human rights violations is considered secure
with this structure.

Although Indonesia originally followed the three-tier design,
it now has a five-tier system, particularly after the case of
Hanoch Hebe Ohee versus the governor of Irian Jaya.

First the District Court, second the High Court (or Court of
Appeal), third the Supreme Court as a judicial entity, and fourth
the "reviewing" process by the Supreme Court (still acting as a
judicial entity). This institution is misused by the losing party
to delaying the entire process. Since there is always a losing
party, in practically every instance a review is requested.

The fifth and the last tier is the Chief Justice of the
Supreme Court, acting as the sole leader in the administration of
justice. Indonesia is perhaps the only country in the world that
wastes the time, energy and money to ensure justice with such an
elaborate system.

This structure means that the award handed down recently to
Tempo still has a long journey to be final and enforceable. To
administer better justice and to ensure legal certainty, it would
be best if Indonesia reverted to the three-tier system.

Although all modern democratic states have separated political
power from judicial power, many politicians are willing to
sacrifice this sacred separation in order to maintain their own
power. One example is the Flor Contemplacion case.

An unskilled laborer from the Phillipines, Flor Contemplacion,
was found guilty of double-murder after four years of trials. She
was therefore hanged on March 17, 1995.

There was no order of stay from Singapore's judicial power. In
Indonesia, this is similar to the acquittal judgment in the case
of Marsinah but contrary to the case of Ohee, in which the Chief
Justice of Indonesia's Supreme Court issued an order of stay.

After Flor was hanged, the Philippine government established a
commission to investigate the case. When the commission announced
that Flor was the victim of injustice of Singapore's judicial
system, Filipinos erupted in anger.

The situation was exploited by the Philippine opposition. To
defend himself and to gain sympathy, Ramos labeled Philippine
migrant workers "a new type of hero," because they bring in US$7
billion, more than 50 percent, of the Philippine's export value
of about US$ 13.4 billion. Ramos even threatened to severe
diplomatic ties with Singapore. For the sake of political power,
he was willing to intervene in the judicial power of a friendly
nation. No likely solution is yet in sight.

The establishment of the commission after Flor was hanged is
tantamount to political intervention into the judiciary's power.
The strategy of the Philippine government here differed markedly
from that of Indonesia and the United States.

Both in the Achmad Muhammad Noer case in Malaysia and Michael
Fay case in Singapore, the Indonesian and the U.S. governments
did not establish a commission to re-evaluate judgments of
judicial courts which are known to be accurate in their
administration of justice, independent and free from corruption.

The Contemplacion case has taught that whatever the condition
is, the independency of the judicial power should not be
disturbed. Trying to influence the judiciary will only bring
about unpredictable multi-dimensional consequences.

It is now an accepted maxim that justice can only be secured
by a court free from political, economic, military and other
social powers. If, occasionally, justice fails to be administered
because of internal judicial problems, this is easier to overcome
than a failure to administer justice because of external
influences.

The interpretation of a rule solely on the basis of language
formulation, grammar and dogma, for example, is an internal
problem of the judiciary which can be easily overcome by a
refresher course.

Twenty-five years of development has made Indonesians more
intelligent and concerned about the role of law and justice. In
the take-off era where more transparency is expected in economics
and politics, the interpretation of law should follow the
economic and political development strategy of the nation.

The writer is a professor of law at University of Indonesia
and member of the National Commission on Human Rights.