Justice system slowly beginning to reform

Justice system slowly beginning to reform

Douglas E. Ramage and Zacky Husein, Jakarta

After the 1999 democratic election, a broad consensus emerged
among Indonesians that legal reform was essential to consolidate
democracy and support economic recovery through investment.
However, perception of the need for reform has not been rapidly
translated into a conspicuously clean, competent, and reformed
judiciary and the fair application of rule of law throughout
Indonesia.

Furthermore, it is the courts themselves that are often blamed
for blocking other critically needed reform. Most Indonesian
commentaries on the Indonesian legal system generally regard the
judiciary as ineffective and corrupt.

The public's perception of poor handling of high profile
cases, such as the recent corruption case involving Parliamentary
Speaker, Akbar Tandjung, and the reduction in sentencing of Abu
Bakar Ba'asyir, cast further doubt about the seriousness of the
court to reform.

However, negative perceptions of Indonesia's courts derived
solely from examination of high profile cases also obscures the
reality that, although at times halting and tenuous, there is
concrete evidence of genuine, at times potentially far-reaching,
judicial reform in Indonesia.

We must balance those court decisions that seemingly depict an
unreformed judiciary, with those decisions and developments that
dramatically demonstrate the opposite. For example, the
Constitutional Court recently restored the civil rights of former
members of the Indonesian Communist Party in February 2004. This
is the most dramatic expansion of civil and political rights in
Indonesia in nearly 40 years.

Furthermore, through amendment of the Constitution and
parliamentary passage of new laws on the judiciary, the entire
management and administration of the Indonesian judiciary is now
in the process of being transformed. That is, the administrative
powers for supervision of the courts have been transferred from
the Ministry of Justice (thereby previously under the political
control of the President) to the Supreme Court, the highest
judicial authority of the country.

Legal experts in Indonesia today generally agree that the
Judiciary is now, officially and formally, "independent." While
the heavy-handed manipulation of the courts for political
purposes that so often typified the Soeharto era, now appears to
be waning, it bears emphasizing that the Indonesian judiciary
functioned, in part, for the past four decades to support the
political agenda of an authoritarian regime. And the stagnant
culture of court bureaucracies remain deeply entrenched so the
road to full, comprehensive reform will be a long one.

Even though accountability mechanisms to "oversee" the court,
such as a Judicial Commission, have yet to be set up, there is
always the possibility of the court sliding into an autocracy.
Still it is a path that must be taken, persevering through
inevitable setbacks and likely future court decisions that will
demoralize reformers. The judiciary is absolutely central to
democratic and economic reform and the consolidation of
Indonesian democracy, following the most recent round of free and
fair elections, democracy cannot continue in the absence of a
reforming judiciary.

The addition of non-career reformist judges in several courts
has also changed the tenor of court proceedings and inserted
several outspoken advocates of legal reform into the heart of the
nation's judicial institutions. The combined result of these
institutional, legislative, administrative, and personnel reforms
of the judiciary is that, at a minimum, Indonesians now know what
needs fixing and how to fix it.

Though not headline-grabbing, other reform efforts at the
court have included a new Supreme Court Regulation that outlined
the procedures for court-annexed mediation in the Indonesian
district courts. This fills a gap in the Indonesian civil
procedural law on how to conduct out of court settlements for
civil cases through a mediation process.

Among the practical benefits of this process is its potential
to reduce the backlog of civil cases at the court. Exposure of
judicial corruption by a leading anti-corruption NGO is underway
through an open and participatory public examination of court
decisions. The Chief Justice of the Supreme Court has agreed to
adopt this examination system for the court. Results of the
examination will serve as a basis for promotion of judges, and
also as a counter-corruption initiative to fight judicial
corruption.

The steps towards court reform outlined above have been
propelled by strong, competent, and clean leadership at the apex
of the Supreme Court. Chief Justice Bagir Manan, a non-career
Justice appointed by President Abdurrahman Wahid, has begun the
most far-reaching, comprehensive reform plan in the 60-year
history of the Indonesian judiciary.

At his request a "blueprint" was drawn up that sets out how
the Court should tackle the numerous problems facing the
Indonesian judiciary. In devising the reform plans, the Supreme
Court, in another historic first, basically "contracted out" the
reform plan to an Indonesian legal reform NGO. At the same time a
modest constituency for reform has been put together in the
Court.

In another significant, though little recognized reform, Chief
Justice Bagir has made the Court more open than ever before. For
example, for the first time in the Court's history, it aims to
regularly publish judges' decisions and made possible a critical
accountability mechanism -- the "dissenting opinion," which was
on display in Justice Abdurrahman Saleh's eloquent formal dissent
in the Akbar Tandjung case.

This dissent was made possible only by the recently passed
laws that strengthened the Supreme Court and mandated reforms.
While the reform of the court will be judged by the quality of
its decisions, the reality is that even when corruption or
political pressure may not play a role in a "bad" decision, it is
the poor legal training and timidity of Soeharto era judges and
bureaucrats that makes reform, as evident in decision, a
sometimes disappointing process. We must also acknowledge that
even good systems do often produce unpopular legal decisions.

Outside of the judiciary, other key reforms that will improve
Indonesians' access to justice are also underway. For example,
the notoriously ineffective professional lawyer associations (the
Indonesian "bar") are now under legal mandate to unify the bars,
and to institute new professional standards and accreditation.
Citizens now have unprecedented access to laws and government
regulations.

For example, Hukumonline.com is the first ever, comprehensive
public-access database of Indonesian laws, regulations, and draft
legislation. For the first time in Indonesia, citizens, public
advocates, lawyers -- anyone -- have access to free, reliable and
up-to-date access to databases of laws, regulations and court
decisions. As one of the most innovative uses of IT for law
reform in Indonesia, this on-line legal information source
receives an astonishing 40,000 hits per day.

These real, concrete, improvements over the past several years
demonstrate that beyond the newspaper headlines, beyond the
sensational political cases, significant legal and judicial
reforms are underway, and beginning to take root, in Indonesia.
Importantly, reform is occurring despite laments that there are
few identifiable "champions" of law reform in Indonesia.

The fundamental institutional, legislative, personnel,
administrative reforms, and increases in transparency, were all
accomplished through the careful building of law reform
constituencies inside the courts, and in collaboration with civil
society organizations. These little recognized beginnings provide
the basis for further reform that will, over time, also be
reflected in better court decisions, a more professional
judiciary, and better justice for all citizens.

Douglas Ramage is The Asia Foundation's Representative to
Indonesia and Zacky Husein is the Director of Law Reform Programs
at The Asia Foundation in Jakarta.