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A: Guided Democracy began in 1959 when Sukarno unilaterally repealed the 1950 Parliamentary Constitution, and brought back the 1945 Constitution which allowed him to rule directly.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.