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.