Steps to gain a clean judiciary

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though outdated and elementary, do exist, but it is their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thereby turning the original outdated and elementary laws into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.