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.