Judiciary system reform may be slow but it is coming

Judiciary system reform may be slow but it is coming

Dr. Timothy Lindsey is associate professor at the Faculty of
Law, University of Melbourne. He is also the Director of Asia Law
Center of the university. He has published widely on law and
politics in Indonesia, his recent publication being Indonesia:
Bankruptcy, Law Reform and the Commercial Court 2000.

Following is an excerpt of an interview with Dr. Lindsey by
The Jakarta Post Melbourne-based contributor Dewi Anggraeni,
where he expressed some optimism despite the dire condition of
Indonesia's judicial system.

Question: How does Indonesia compare to other nations in the
regions, in terms of rule of law?

Answer: It is one of the worst nations in terms of rule of
law. In fact Indonesia hasn't had rule of law since 1957, when
Sukarno introduced martial law during the Permesta and PRRI
rebellions, then reintroduced the 1945 Constitution in 1959.

Q: What happened that made Sukarno give up the 1950 Parliamentary
Constitution?

A: In the 1950s the military had been agitating for a return to
the 1945 Constitution or a more dictatorial system, and they were
able to exploit the lack of stability, or internal conflict, in
parliament as an excuse to return to a more dictatorial system of
government.

Q: When did Guided Democracy begin?

A: Guided Democracy began in 1959 when Sukarno unilaterally
repealed the 1950 Parliamentary Constitution, and brought back
the 1945 Constitution which allowed him to rule directly.
Officially, a large number of guarantees and rights, and indeed
the whole parliamentary system, such as independence of the
judiciary, also disappeared. We often forget that most of those
rights had effectively been lost by the introduction of martial
law in 1957.

Q: So Indonesia did enjoy rule of law for a short period?

A: Indonesia only enjoyed rule of law and parliamentary democracy
from 1950 to 1957. During that period the country actually had a
fairly effective parliamentary democracy.

The New Order always portrayed this period as a time of
instability, where the parties fought each other and politicians
fought in parliament, and government was not working.

In reality, political party fighting is part of democracy.
Look at the U.S., Australia, Britain, and any working
parliamentary democracy. Political party battles are accepted as
part of the system.

The military were actually using it as an excuse to abandon a
working democracy.

Q: We were given to understand that parliamentary democracy did
not work in Indonesia and there was a danger of the nation
disintegrating.

A: I think the danger to Indonesia during much of that period has
been exaggerated. It was not very different from now. As soon as
you go into parliamentary democracy in Indonesia you will see
religious, ethnic, and political persuasions in the country
expressing their grievances and combating each other in
parliament. That is what democracy is about.

In Indonesia we still have to learn to accept that sort of
political conflict as part of the democratic process, not a
threat to the nation. After all, it was not parliamentary
democracy, but the confrontation between the military and the
communists that plunged the country into crisis.

Q: How do you see the Parliamentary Constitution?

A: The 1950 Parliamentary Constitution during that period was an
impressive document. It was developed from the federal
constitution. It was negotiated with the United Nations as part
of the settlement of the war, during 1945-1949.

When the federation fell apart in the early 1950s, the federal
constitution was rewritten effectively without the federal parts.
It was good. It included a prime minister, in a parliamentary
style government. It had elements from the Westminster system, as
well as from the American system.

More significantly, it contained guarantees of rights and of
judicial independence. It was a contrast to the 1945
Constitution, which is very brief.

I would call the 1945 Constitution a pamphlet constitution, a
wartime document. It is ridiculously short, having only 37
clauses, but this is because it was put together in a hurry.
Indonesia was under Japanese occupation, expecting an invasion of
Allied Forces. It was a time of war. There simply was not the
time to put together an elaborate document.

Q: What is the consequence of it?

A: As a result, it was designed in an authoritarian fashion, for
independence. It was also influenced by what we now see as very
undemocratic ideas, coming from a particular strain of political
and legal thinking usually described as the integralist strain of
ideas. So the authoritarian state is the whole of the nation. No
separation of powers. No democracy.

The whole nation is ruled by an authoritarian centralist
government, the same ideas that underline communist states. There
is supposed to be a mystical union between the people and the
state led by a charismatic leader who embraces the spirit of the
people.

The 1945 Constitution was drafted by professor Raden Soepomo,
a proponent of the concept of integralism who believed in an
abstract volksgeist, a mystical national spirit. He did not
believe in separation of powers or independence of the judiciary.
That is why his Constitution has provisions for obligations, but
no real guarantees of rights.

Q: It was reintroduced by Sukarno...

A: Then when Sukarno reintroduced the 1945 Constitution he
immediately moved to rule directly and started a deliberate and
all-out attack on the judiciary. He systematically alienated all
the good judges and good lawyers, and undermined the court
throughout his rule.

He thought the court and the judges were all interfering with
the integralist state system. He saw judges as enemies of the
state. He set about removing lawyers from the court and replacing
them with military officers with no university education.

Indonesia in fact, has never recovered from the degradation of
the courts started by Sukarno. One of things he did was to
introduce a law by which he could intervene and take cases out of
the court, then decide or reverse the court decisions.

Q: Then what happened when Soeharto came to power?

A: When Soeharto came to power he promised to make Indonesia a
negara hukum, a nation where rule of law applies, but he never
did that. He continued with what Sukarno did, which is
undermining the court and subverting the judicial system. He did
repeal some of the more ridiculous laws, but continued to
intervene as much as Sukarno did, only without the legal
authority to do so.

Soeharto put political pressure on the court to do his
bidding. Under Soeharto, the court became even worse than under
Sukarno. The court through most of the New Order period virtually
never made decisions against the government. In the many
thousands of subversion cases the court held, only one or two
cases were ever acquitted, and that was mainly because they
arrested the wrong persons.

That is the reason Benjamin Mangkudilaga became a popular
hero; because he decided the Tempo case against the government.
That was one of the very few cases, possibly even the first case,
where the court decided against the government.

Q: Can you name an example where the government exerted political
pressure on the court?

A: The Kedungombo case in 1987 has always been said by lawyers to
be one. Here the government compulsorily acquired land and the
Central Java Governor offered grossly inadequate compensation to
the peasants who lived there.

The peasants sued the government, and when it finally went to
the Supreme Court, the court decided that the compensation was
inadequate, and ordered massively higher additional compensation
to be made.

But Soeharto then called the Chief Justice into a meeting at
the palace. A weekend later, the Chief Justice Purwoto
Gandasubrata held a weekend workshop to review this decision, and
the court reviewed and reversed its decision, effectively staying
enforcement indefinitely.

Q: How lacking in power are the Indonesian courts?

A: One of the rights that the court lost under Soeharto, Law
No.14 /1970, was the right to review legislation and decide
whether it was constitutional or not (hak uji).

One of the fundamental ways in which separation of powers is
exercised, is by granting the court the power to review acts of
parliament. So if parliament produces a law that is not
constitutional, then the court sees it is not constitutional,
makes that finding, and strikes out the law.

The court had that right specifically removed in 1970. As a
result parliament can make laws that are not constitutional, and
the court could do nothing about it. There are now many laws in
Indonesia that are not constitutional. They can do that because
the court is powerless to do anything to prevent it.

Q: Can you give an example where a particular law is
unconstitutional?

A: The new Human Rights Court Law. The second amendment to the
Constitution introduced earlier this year (Art 28) can be read to
ban retroactivity, yet the Human Rights Court Law allows it. So
the Articles in that Law (Art 43, 47, General Elucidation) that
allow retroactivity may be unconstitutional. This becomes a huge
problem.

When the human rights cases come to court the military will no
doubt challenge them, on the grounds that the Constitution
prevents retroactivity, but the Court probably lacks power to
make such a decision.

Q: So Indonesian courts have much less power than a court
normally has?

A: Yes. And when a court is degraded, stripped of its power, it
will inevitably become corrupt, because it starts attracting less
impressive candidates. A low authority court, which is
politically controlled, would not attract good quality people to
want to work there. What happened is the 'dumbing down' of the
Supreme Court, where people make it a last choice.

Another factor is the absurdly low salaries of the judges. In
most functioning democracies, the salaries of judges are close to
prime ministers or presidents. In Indonesia the judges are paid
public servants' salaries, which are very low.

There are only two ways for judges: have a very simple life,
or be corrupt. Yet they are expected to decide thousands of cases
every year, many of great importance commercially or for the life
of the nation.

Inevitably they are pushed towards corruption. By the late
1980s the court was a national scandal. It became utterly ridden
with corruption. Probably one of the most corrupt institutions in
the whole of Indonesia. It is impossible now to get a case to
court without being asked to pay a bribe. And it is also almost
impossible to win without paying a bribe.

Q: What are recent cases where bribes were paid?

A: Recently there was a series of cases exposing registrars of
the court involved in the organizing of taking bribes. They have
tape recordings of those registrars arranging the bribes, and of
people seeking bribes. There have been widespread practices of
auctioning profitable cases by the judges. Well, these judges
need to survive.

So one solution often proposed is to increase the salaries of
the judges. But this is very problematic, because if you do that
you will effectively be rewarding many corrupt judges! And how do
you guarantee that just because corrupt judges are paid better
salaries they will stop being corrupt? They are more likely to
see it as a windfall.

Q: Can the corrupt judges not be brought to court?

A: Yes, in theory, but who tries the corrupt judges? Other
judges. This was what happened when the Joint Investigative Team
(Tim Gabungan) charged three judges with corruption, yet the
State Court (Pengadilan Negeri) in South Jakarta threw out the
case arguing in the pre-trial hearing that the Team did not have
the authority to prosecute.

In fact, that was probably a wrong decision because pretrial
proceedings are to decide detention, arrest and whether an
investigation has been properly terminated, not whether there is
authority to prosecute.

So it is extremely difficult to prosecute corrupt judges
through their own brother judges. It may be improper but it is
easy to understand why they close rank. 'If it is them now, we
may be next!'.

The Supreme Court is a very resistant institution to reform.

Q: Is there no way to reform our legal institutions?

A: Despite all that, I am quite optimistic. Not all judges are
corrupt. Not every judge who takes a small 'facilitation' payment
is a bad person. People need to survive in a time of economic
crisis. There are many judges who wish to reform, and there are a
number of judges who are real leaders in change. Former judges
Bismar Siregar and Adi Andoyo Sutjipto pushed hard for change for
a long time.

There is also the National Law Commission led by professor
Sahetapy. This organization is seriously pushing for reform.

The NGOs are also key players in reform in Indonesia. In fact
they are the powerhouses of law reform and key policy-makers,
with a growing influence on government.

I also believe there has been a positive shift in legal
culture. There is an understanding among some groups in the
courts that things have changed and the court will have to follow
suit. But we have to be patient.

The generation of the New Order are dying, getting to pension
age, or approaching the end of their career. When they go, they
tend to take with them the old culture as well. Of the people who
are moving up now, even in the Supreme Court, many are very
serious about change.

We must not expect miracles, but I believe change has started
in judicial culture. We have to appreciate that it involves a lot
of sacrifice and personal risk on the part of judges leading the
change.

Q: So what specifically needs to be done to fix up the courts?

A: Apart from salary increases, there needs to be non-career
judges, adhoc judges appointed from the profession. People with
more experience need to be brought in, people who are trained in
legal ethics, professionalism, specialists in specific areas like
bankruptcy and intellectual property. A judicial commission and a
judicial Code of Ethics are necessary, as required by Law No 35,
1999.

There needs to be proper reports of court cases made public so
that they can be scrutinized, ideally through a proper website.

Q: Should the 1945 Constitution be further amended or replaced?

A: Either comprehensively rewritten or scrapped, but this all
takes time. Ideally there should be a new Konstituante and a new
Constitution drafted but this will need more settled times.
Before that Indonesia needs an Opposition, a two or three party
system. Now the opposition is in the government.

Governments of national unity are always governments of
disunity. But none of this will happen quickly and, in the
meantime, Indonesia must make the most of what it has, and the
outside world must learn to be more realistic, less impatient.