Independent but corrupt court

What do Manulife, the parents of four dead Trisakti University students, hundreds of thousands of East Timorese and hundreds of thousands of Acehnese have in common? They have all been fighting to obtain justice from the Indonesian judiciary.

Are they ever going to get it? No, or rather, it depends.

Our judiciary has become more and more unpredictable of late so that there is simply no way of telling whether, or when, if ever, you will find justice if you feel you have been wronged, either by the government, the military, by your business partners or by anyone else for that matter.

The wheels of justice can, however, be set turning in the right direction if you have money. Tons of money. The rupiah, the U.S. dollar or payments in kind are the chief currencies used in our courts. You can present the strongest imaginable evidence at the hearing and still lose the court case. Our courts are looking more and more like auction houses with judgments being knocked down to the highest bidders, and not to those with right on their side.

This is the bitter reality of our court system today, a reality that has been confirmed again on two separate occasions this week. First, Indonesian Corruption Watch (ICW) published a detailed study about how corruption within the legal system has become systemic and well-organized. Second, United Nations special rapporteur Dato Param Cumaraswamy, who came to look at the independence of the Indonesian judiciary, said he had found that corruption was much worse than he had first thought.

So flagrant has corruption become that ICW chief coordinator Teten Masduki has suggested that our judges might as well publish their rates, or display them on their doors, so that justice seekers know how much they will have to fork out to secure a favorable judgment. Such transparency would at least provide a greater degree of certainty for potential litigants.

The ICW report says that a justice seeker has to bribe his way from the moment he makes his first move, say, from filing his complaint either with the police or the court. And payments are made at almost every stage of the legal process, all the way up to the Supreme Court, if his case ever reaches that high. Even then, there is no certainty that he will get justice because his opponent could simply outbid him.

The Supreme Court, the last bastion of justice, has not only failed to eradicate corruption, it is very much a part of this game. This, sadly, is the tragic part of the story. The Court's deep involvement means there is virtually no end in sight to this problem.

The judiciary, unlike the executive and legislative branches of government, cannot be held publicly accountable. The Supreme Court can discipline judges of the lower courts, but no body exists to supervise the justices. Once appointed, a member of the Supreme Court serves until he reaches retirement age. He cannot be removed by anyone, no matter how badly he behaves.

We cannot hold judges publicly accountable. We can only hold them morally accountable, but like most politicians of the day, the judges have become aloof, if not completely deaf, to public opinion. Many of their rulings on high profile cases have hurt the public sense of justice. But there is little we can do because unlike politicians, judges do not have to subject themselves to periodic elections.

The judiciary, among the three branches of government, has been the least affected by reform. Shielded by the principle of an independent judiciary, which the 1998 reform movement helped enshrine, the Supreme Court has continued administering the law the way it was done for 30 years under the Soeharto regime.

The Supreme Court is still run largely by people handpicked by Soeharto, who treated the judiciary as another tool for repressing the people. Back then, at least, they were answerable to Soeharto. Today, they answer to no one but themselves. And since most of the judges are still products of the repressive regime, they remain as corrupt, if not more so, than before.

If democracy, the chief objective of reform, means a return to the rule of law, the nation must first reform the institution that administers the law. That means the judiciary, or more precisely, the Supreme Court as the highest court of the land. So far, the Supreme Court has been untouched by reform, and as a result corruption has become even more rampant.

When will this end? What does it take to stop the rot?

There are many dangerous signs that the people are losing their confidence in the judiciary's ability to deliver justice. Many people have taken the law into their own hands. More discontented people in Aceh and Papua have joined armed insurgencies. Meanwhile, foreign investors are voting with their feet, with many turning to international arbitration to settle business disputes.

How much worse can it get?