Steps to gain a clean judiciary

One of the issues scheduled for discussion at the fifth National Workshop on Human Rights, which opens on Thursday in Jakarta, is the role of the judiciary in a market economy. Professor of law Charles Himawan, also a member of the National Commission on Human Rights, shares his views on the matter.

JAKARTA (JP): Last week Indonesia and the International Monetary Fund (IMF) reached a tentative agreement to insert "legal framework, regulating and supervising" under category III, Structural Reformation for 1999/2000 and 2000, in its draft Letter of Intent. Hopefully, "supervising" means "implementation of law".

To date, the IMF believes incorrectly that Indonesia needs more laws to support its market economy, as made evident by Indonesia's attempt to improve and renew its business and bankruptcy laws. To rectify this misconception, the IMF must first accept that sufficient pieces of legislation and bills, though outdated and elementary, do exist, but it is their implementation that is nonexistent.

Second, the IMF should realize that implementing pieces of legislation and bills is not the same as implementing only the wording of the bills (known as black letter rules, because they are printed in black).

District courts and the Court of Appeals may, to a certain extent, implement only the wording of the bills, but the Supreme Court must interpret the bills in order to create new laws, thereby turning the original outdated and elementary laws into modern and sophisticated laws. No bill can keep pace with developments in the economy and markets. The Supreme Court must fill this legal vacuum.

Believing the Supreme Court was failing to serve this function, a number of lawyers called for the replacement of the justices, because "laws are a dead letter without courts to expound and define their true meaning and operation", as observed by the former American secretary of the treasury, Alexander Hamilton (1755-1804).

One factor that may allow courts to fulfill their duties is realistic salaries for judges. In the absence of this, the IMF's attempt to create a market economy will fail because the judiciary will not be free of collusion, corruption and nepotism (KKN); and the economy and businesses need a clean judiciary to defend their rights and define their obligations. In a KKN- dominated economy, in contrast to a market economy, a judicial court is not needed because businesses can defend their rights and elude their obligations on the basis of their political, military and police connections, their financial strength, jingoism and nepotism.

One may argue that expecting the IMF to help fund judges is a dream, but dreams come true if pursued vigorously. The draft Letter of Intent has opened the first door to realize this dream, i.e. to allocate funds in accordance with the seriousness of the problems faced. The difficulty in implementing laws appears to be far more serious than other problems.

The majority of the IMF money should therefore be allocated to "supervising" (by the judges) than to "legal framework and regulating" (by the legislature), even to the extent of 99 percent to 1 percent, respectively.

The second door which must be opened is for the government to determine a realistic cost of living for judges and pay them accordingly. If the availability of IMF money for judges is a joke, perhaps it is also a joke to pay judges a basic salary ranging from Rp 750,000 to Rp 1,500,000 a month.

Take as an example a judge with a wife and two children. They certainly need housing, a car, education for the children, weekend holidays, visits to shopping malls and amusement parks. Yet, their take-home pay is surely less than the take-home pay of the financial experts busily restructuring our banking sector. Many fail to realize that restructuring the financial sector without restructuring the judiciary will end in failure.

The third door is to turn the Jakarta District Court into a pilot project. If this is successful, other courts will follow suit. It is perhaps not merely wishful thinking, but a plain impossibility to raise simultaneously judges' salaries throughout Indonesia. In consequence, this move should be done gradually.

The Association of Southeast Asian Nations plans to lift all import duties by 2010. Therefore, Indonesia should achieve a clean judiciary throughout the nation within 10 years.

The fourth door is to examine the morality of judges. A judge should have high integrity. Hence, the declarations by the Association of Judges and the Association of Litigation Lawyers for their members not to practice KKN will only prove effective if the other three doors are opened. By then, Indonesia will understand the observation made by the 26th U.S. president, Theodore Roosevelt (1858-1919), that "the decisions of the courts on economic and social questions depend upon their economic and social philosophy".

At this stage, the Supreme Court would become a lighthouse illuminating the legal darkness surrounding us today; making it possible for a citizen to defend with fairness before a clean judiciary his rights in a market economy and social and political democracy.