Law reform needed to clear the backlog of cases

Law reform needed to clear the backlog of cases

Patrick Guntensperger, Jakarta

It is to be hoped that a new Indonesian government will make
an effort to address the somewhat chaotic state of our legal
system; we are all painfully aware that there is significant room
for improvement. The current problems with our present system can
be said to fall into three basic and often overlapping
categories.

In the first place there are the problems that exist with the
actual legislation; that is, the occasionally contradictory
nature of some of our laws, their constitutionality, their
ambiguity, and their consistency with religion, with morality,
with natural law and with the will of the people.

Secondly there are those problems that exist as a result of
KKN. The corruption within the civil and criminal justice systems
leads to unjust decisions, inconsistent interpretation of the
law, unbalanced and unequal access to the courts and a general
mistrust of the system. Finally, there are the problems with the
administration and structure of the system itself.

Much has been said on the first two issues, in this column and
elsewhere, and there is much more to say, but the question of the
administration and mechanisms of the legal system could also bear
some scrutiny. Inefficiency, backlogs of dockets, unreasonable
delays and hasty and haphazard attention to detail can result in
the denial of justice to litigants as surely as bad laws and
corrupt judges. To ensure access to justice, equitable
distribution of services and to increase confidence in the
system, reform of the administrative aspects of the justice
system, while less glamorous, is as critical as the drafting of
legislation and the eradication of corruption.

The most effective way of relieving the stress on the courts
is to encourage the settlement of litigation without the
necessity of a trial. The best way to achieve this (in civil
court, at least) is to provide an effective mechanism for
mediation, settlement and follow-up of legal claims. While the
National Mediation Board is a manifestation of a good idea, its
role within the judicial system should be modified and expanded.

A more extensively used system of settlement conferences is
needed to help alleviate the backlog of cases waiting for a trial
date in Indonesia's civil courts. These settlement conferences
should be scheduled and managed by the civil justice
administration. The procedures themselves should be quasi-
judicial in nature, and if they are administered well, they will
have a noticeable and salubrious effect on the dispensation of
justice from the moment they are instituted.

The settlement conference should be a required step in any
litigation. Although in most instances, litigants will have made
some attempts at arriving at an out-of-court settlement before
the claim was filed, in most jurisdictions the settlement
conference is where the vast majority of civil cases are laid to
rest. The formal settlement conference works because it brings in
an objective third party with a legal background in order to
mediate and perhaps arbitrate a settlement but without the
authority to adjudicate.

The mediator at a settlement conference should be a layperson
with some formal legal training for a number of reasons. A
layperson is at least as likely to have a good grasp of the
principles of natural justice and fairness as any judge or
lawyer. On the other hand, the conference is an intermediate step
between a private discussion and a formal trial, so some degree
of formal training would be required. That legal background is
also critical for the secondary function of the settlement
conference.

The conference can also streamline the system by acting as a
forum for the discovery process. Discovery, as the word is used
in the world of litigation, is that process by which the opposing
parties disclose the basis of their cases and the evidence they
will use to support them. In order to make this work at a
settlement conference, the parties would be required to provide a
complete list of all evidence they intend to rely on at trial.

By combining discovery with an attempt to settle, a number of
things are accomplished. In the first place there is a good
chance of avoiding a trial altogether...a real benefit. Secondly,
with a knowledgeable mediator presiding, inadmissible, irrelevant
and unpersuasive evidence can be excluded, thereby wasting less
of the court's time at trial, should the matter proceed that far.

A settlement conference also allows for more creative
solutions to a claim than the traditional damage award that could
be expected at trial. The conference allows the parties to air
grievances, defenses and justifications. In a surprising number
of cases that's all the litigants really want. A formal trial can
thus be avoided. Just the same, the terms of a negotiated
settlement, once agreed to at a conference, would be recorded,
registered with the court and rendered as enforceable as any
judgment handed down after an actual trial.

Not incidentally, there is another advantage to maximizing the
use of the settlement conference in the Indonesian justice
system. An enforceable settlement arrived at by mediation rather
than as the result of a trial reduces the likelihood of a
favorable court decision being available to the highest bidder.

The writer (ttpguntensperger@hotmail.com) is Social/Political
Commentator.