Law and disorder: Addressing corrupt judiciary

Frank Richardson, Lawyer, London

Miscarriages of justice can occur in any country, even where lawyers are professional and ethical, judges are impartial and independent and the police and prosecutor's office are entirely scrupulous.

Wrongful convictions can happen because, inter alia, of too much reliance on expert opinion and inconclusive evidence as well as excessive public, political and media pressure to ensure perpetrators are rapidly punished. Where a country's legal system is riddled with corruption, quite obviously, miscarriages of justice are far more likely to occur.

Ironically, while ninety percent of Indonesians are Moslem and the Koran, more then any other religious scripture, puts great emphasis on truth and justice, it is common knowledge that Indonesia's law enforcement system is corrupt. However, rather than simply condemning this, it is far more constructive to look at just how and why this is.

When Indonesian lawyers mention ethics, it is, sadly, usually only in relation to the accepted way in which a case should be transferred from one lawyer to another. One is also struck by the rarity with which Indonesian lawyers will properly cross-examine and refer to statutes, case law and procedural rules when defending a client in court.

Additionally, a degree of trepidation is often evident with regard to being too bold and assertive before judges. These three factors together do not bode well for cases to be pursued ethically, meticulously, systematically and vigorously and, inevitably, the defendant, the Indonesian legal system and Indonesia are the losers.

The police obviously have an important role in the law enforcement system; but Indonesian police are very poorly paid and the beating of suspects, as often shown on Indonesian television, appears to be an acceptable modus operandi. These two factors alone are conducive to miscarriages of justice through the intervention of corruption and physical intimidation.

This is especially so because of the total lack of judicial intervention in the detention of a suspect until he appears in court. It is police officials alone who determine whether a suspect needs to be detained for from sixty to one hundred and twenty days (depending on the gravity of the alleged offense) before being referred to a prosecutor.

As a consequence, remand prisoners talk less about the strength of the evidence against them and far more about how much needs to be paid to the police for their case to be dropped before it is handed over to the prosecutors.

Additionally, since provincial police units often rely on the generosity of provincial governors there is plenty of scope for undue pressure to be applied in particular cases.

Prosecutors, too, are poorly paid. Prosecutors have considerable power through being able to determine when a case will come to trial, the quality of and how much evidence is submitted and what length of sentence is to be requested. Since lawyers do not demand procedural compliance of prosecutors, the process is open to abuse and corruption.

It should come as no surprise that judges are also poorly paid and many, although by no means all, will seek to supplement their salaries. Judges, by virtue of being able to commit suspects to prison and sequester their possessions, wield considerable power and, unfortunately, unregulated and unaccountable power often leads to abuse. Combine this with the fact that powerful government officials will exert pressure on judges where they deem it necessary and the potential for unjust decisions is exacerbated.

All the above contribute to a vicious circle of corruption in Indonesia that is reinforced at every step. Because corruption is so endemic a culture that assumes no one is entirely clean or innocent pervades.

Thus, if the wrongdoings of someone are revealed it is naturally assumed that the accuser is motivated by vindictiveness rather than a desire to see justice done for the sake of a better society or some transcending good.

As a result whistleblowers are often excoriated, denigrated and imprisoned. One often reads of people, for example, who have been imprisoned because they have naively accused a judge of accepting a bribe.

Here again is yet another weakness in the legal system, as both the recipient and the giver of a bribe are technically breaching the law; but more crucially, defamation can be a criminal offense punishable by imprisonment in Indonesia although, strangely, this does not seem to deter the media in libeling mere members of the public.

Thus, the stakes are high, but because the power to silence lies in the hands of the judges, few, including lawyers, are prepared to risk the displeasure of the powers that be to stand up for truth and justice.

Since corruption is so pervasive everyone in Indonesia is tainted by it to a degree whether they like it or not. Sometimes not complying with the law can be less perilous than not bribing a government official, as the latter may be able to heap numerous minor, but very costly, bureaucratic misdemeanors on the head of an individual if he does not fall in line.

In this way corruption reinforces corruption until the law and the legal system inexorably become a travesty and plaything of the rich and powerful, leaving little to regulate morality in society. In fact, so defeatist and fatalistic have many Indonesians become about the situation that they believe justice and truth are reserved only for the life hereafter

It can, therefore, be appreciated that reversing the trend, ending the downward spiral, is not at all easy. However, there are judges who take their role as public servants who mete out justice quite seriously, although they too are often under peer and political pressure to err.

One obvious way to reverse the trend is to treat officials in the law enforcement and judicial system differently from other government employees and pay them much higher salaries providing they comply with certain standards of scrupulousness and to penalize them heavily if they do not.

This, however, will be impossible unless a moratorium is declared on all but the most outrageous bribe taking that has occurred in the climate of corruption that has prevailed up to now.

To even suggest that corrupt officials of the past will be brought to account will create such opposition and resistance among the establishment that any attempt at starting afresh, free of corruption, will be immediately undermined. Such power checking measures as habeas corpus and emphasis on procedural compliance by the police and the courts will also need to be introduced.

Indonesians have a strong desire to advance technologically and educationally; but for a just and stable society it is essential this be complemented by an equally strong desire to ensure that justice is done. A climatic shift is in order.