Indonesian judicial reform agenda

Indonesian judicial reform agenda

By Mohammad Fajrul Falaakh

JAKARTA (JP): Concerns over the performance of the Indonesian
judiciary have grown recently. The latest example was the World
Bank's inquiry into the ruling of the South Jakarta District
Court to drop all charges against Djoko S. Tjandra, a main
suspect in the high-profile Bank Bali scandal.

The judge's decision, saying the allegations related to a
cessie transaction, should have been filed in a civil court
rather than a criminal court, shows that the judiciary has indeed
become the stumbling block in efforts to uphold the law and to
recover the economy, particularly in the past two years.

The judiciary certainly needs to be reformed. Indonesia, a
constitutional state based on the rule of law, has several
conducive factors to develop an independent and accountable
judiciary.

What is certain is that an independent judiciary is needed.
The 1945 Constitution provides that judicial powers are vested in
the Supreme Court and subordinate courts as regulated by laws
(Article 24).

The Constitution emphasizes two important aspects of the
judiciary. First, the judiciary is independent and thus free from
government authority. Second, legislative laws prescribe the
structure, jurisdiction, appointment and dismissal of judges.

However, the judiciary stands and operates within the
political, social, economic conditions of its society. The post-
New Order Indonesia has inherited a judiciary prone to external
influences, mainly from political and business interests.

Former president Soeharto's regime used the judiciary to
maintain his rule, which led to the judiciary avoiding cases
which were controversial to the government. Consequently, sitting
judges generally leaned toward "conservation" instead of changes
-- the above mentioned ruling is an example.

With the formation of a new government resulting from a
democratic presidential election last year, new expectations
arose. The judiciary is now expected to play a significant role
in keeping with the pace of political and economic reform.
Ironically, the judiciary has not been reformed.

There are two urgent agendas on judicial reform that deserve
further discussion, namely the "one roof" policy of courts
administration, and judicial independence and accountability.

The transfer of court administration from the executive to the
Supreme Court is obviously an urgent reform agenda. According to
Law No. 35 of 1999, this has to be done in five years in 2004.

The executive's involvement in judicial governance became the
channel of the government's intervention in the judiciary under
the New Order.

Placing the courts' administration under a one-roof system,
i.e. it is undertaken by the judiciary itself, is considered to
be one of the suitable strategies to enhance judicial
independence.

The administration of the courts would be under a single
management with the Supreme Court at the apex.

But it is imperative that the transfer of courts'
administration is conducted gradually and cautiously to avoid
disrupting the existing process of implementing justice.

On the other hand, the new management of the Supreme Court
should be able to carry out its regular tasks and be prepared to
take on additional burdens.

Administration of courts includes supervision and control over
administrative personnel, preparation of the court budget,
maintenance of court buildings, recruitment of judges and the
posting, promotion and transfer of judges.

There are two levels of administration, i.e. the central
level and the court level. For the central level, it is obvious
that Law No. 14/1985 on judiciary places is the responsibility of
the central judicial administration of the Supreme Court.

It follows the collective model with the responsibility in the
hands of the judiciary as an institution -- or modeling the
United States, Italy and Portugal vis-a-vis Norway and Austria,
which puts it in the hands of the executive.

At the court level, Law No. 35/1999 regulates the
implementation of exclusive judicial administration. It gives the
judiciary full responsibility for courts administration.

There are several ensuing problems to such a regulation.
First, there are problems related to existing courts'
administration and second, problems of administrative transfer.

Third, there are problems of adapting courts' administration
to the existing Supreme Court administration and fourth,
implementing new courts' administration with anticorruption
measures.

Some steps should also be taken. First, the assessment of
existing courts' administration and its problems, as well as the
review of whether the Supreme Court is prepared to fully manage
the courts' administration.

Second, the conducting of pilot projects on courts
administration based on such an assessment and review. Third, the
implementation of transitional measures prior to the full
responsibility of court's administration when the Supreme Court
is considered ready.

Fifth, the evaluation of early problems of the new
administration and the formulation of proposals for action.

Enhancing greater judicial independence would be achieved
through, among other things, independent court administration,
the right to exercise a judicial review, adoption of a universal
code of conduct, freedom from financial or business entanglement
and sufficient salaries.

Judicial independence includes individual independence of a
judge, in a substantive and personal nature, and collective
independence of the judiciary. However, independence requires
accountability.

Judicial accountability prevents the judiciary from exercising
haphazard, repressive and even dictatorial roles under the guise
of professionalism and independence. Judicial accountability for
a new Indonesia requires a combination of a reasonable degree of
political and societal responsibility, with a reasonable degree
of legal responsibility. This method of accountability should
improve the responsiveness of the judiciary to societal changes.

Issues related to judicial responsibility include political
accountability of individual judges, or the judiciary as an
institution. Here, judges and the judiciary can be held
responsible, or be impeached, by the House of Representatives.

Second, societal or public accountability on individual and
institutional basis. Judges and the judiciary are exposed to
public criticism; they have to observe the open policy of
judicial proceedings and exercise publicity of court decisions
and dissenting opinions.

Third, legal accountability, whether exclusive or concurrent
with the personal accountability of the judge. Exclusive
responsibility lies with the institution where the judiciary is
liable for damage caused by a judge's wrongdoing in exercising
his public function.

Legal accountability of the individual judge means a judge can
also be held responsible either on criminal, including
anticorruption measures, civil or disciplinary grounds.

Judicial reform certainly requires supporting efforts to help
the judiciary in administering its own affairs and in providing
services to the public. An important element of this is legal
information on the judiciary, such as through reports on the law
and media coverage.

Further discussions on immediate judicial reform programs
would have to include a timeframe; two other factors are
political devolution, or decentralization, and anticorruption
measures.

The writer is a lecturer at Gadjah Mada University Law School,
Yogyakarta.