Supreme court blueprints: An innovative reform plan

Zacky Husein and Sebastian Pompe

In recent years most commentaries of on the Indonesian legal system have severely criticized the judiciary. The judiciary is generally regarded as dysfunctional and ineffective. Also, it is perceived to have difficulties in recognizing that it is in crisis, let alone the willingness to overcome it. There is validity in this criticism, and in modern Indonesia, judicial reform remains one of the principal challenges to create a more just, sustainable and manageable society.

But it is important not to generalize the situation, to see the trees from the wood, in a manner of speaking. Criticism of the courts is so much in fashion, more so than criticism of the Attorney Generals Office or the Police to give just two examples, that it risks ignoring the nuances through which reality necessarily must be understood. It misses out on real efforts for change, and credible efforts towards reform in a very difficult environment.

The best evidence that something is moving, and that support needs to be rallied, is a highly ambitious and comprehensive set of reform plans launched by the Supreme Court on Oct. 9. These plans, known as the Supreme Court Blueprints, are without precedent in the history of the court, perhaps even of the entire country. This is the first time since Indonesian independence that the Supreme Court has developed a comprehensive reform policy.

The reform plans are based on a critical analysis of the problems facing the judiciary, as well as an identification of long-term objectives. This is also the first time that the Supreme Court has called on the assistance of an Indonesian NGO to help define these problems and responses.

The reform proposal as a result does not just reflect what the judiciary thinks, but also relies on major input from society and other outside sources. It is the first time that the Supreme Court has openly admitted that something needs to be done, and has thought out ways by which to deal with the problems. No other State agency has exposed itself to external scrutiny to the extent that the Supreme Court has done, or has drawn up proposals that are as far-reaching.

The Blueprints are a culmination of close to two years of various reform efforts within the court. These include establishing an internal supervisory arm of the Supreme Court; improving the transfer and promotion system of judges; and promoting court-annexed mediation to reduce the backlog of cases. These efforts and steps have now become part of an integrated reform policy defined in the Blueprints, that cover the judiciary as a whole.

The novelty of the plans is in two things: What they say and how they came about.

With regards to the substance, the reform plans are set out in five separate blueprints covering the Supreme Court itself, Judicial Personnel Management of the lower courts, Permanent Education of the lower courts, Financial Management and Accountability of the court system, and the establishment of the Judicial Commission. Two more Blueprints on the further development of the Commercial Court and the establishment of the Anti-Corruption Court are in preparation.

The Supreme Court blueprint covers seven major areas: (i) constitutional independence; (ii) functions; (iii) organizations; (iv) human resources; (v) case management; (vi) budget and facilities; and (vii) transparency, accountability, and information system. In each of these areas, a set of problems is identified, as well as ways to resolve them. For example, on case management; corruption, inefficiency, low productivity, and inconsistency in the court decisions are identified as the main problems. On ways to resolve them; overhauling the case registration system, changing the way cases are distributed and classified; and introducing a chamber system are suggested as the solution.

The Personnel Management blueprint details a merit-based career management system for judges and court officials. The Permanent Education blueprint focuses on the link between educations to and the career development of judges. The Financial Management blueprint centers on issues of the cost of running a court and the accountability mechanisms that should be in place. Lastly, the Judicial Commission blueprint concentrates on the development of an outside supervisory body that serves as a check on the independence of the judiciary.

Implementation of the reform plans faces a number of important challenges.

The first challenge comes from government. As with all major reform plans, the Supreme Court proposals cannot be realized unless they receives proper backing from government as well as parliament. The Supreme Court has made a tremendous intellectual effort in developing the reform plans; it would be a terrible waste and major default on the part of government if it did not assist in implementation of these plans by allocating the necessary resources and facilities.

The second challenge comes from within the judicial administration itself. The reform plan was launched by the Chief Justice and has the support of key judges. But at the same time, it proposes major changes in the way the judiciary is organized and operates, and as with bureaucratic changes anywhere, this is bound to generate resistance. The deeper the proposed changes go, the greater the resistance will be. The Supreme Court reform plans cannot be realized unless significant sections in the judicial administration support them, it, or are made to do so.

The third challenge is for the donor community. The donor community does not have a track record to be proud of. An important reason for the weakness in Supreme Court policy making has been erratic donor behavior. Over the past two decades, donor's assistance has typically been short term, incidental, uncoordinated, often overlapping, and much determined by the various donors' agenda. Donor programs have generally focused on narrow and often superficial "sexy topics", and ignored deeper complicated issues that would have required greater commitment and greater expertise to resolve.

Currently, the situation has changed, as a Supreme Court policy framework is in place. Its success much depends on donor discipline: Donors must be prepared to cooperate among themselves as they rarely do; they must be prepared to submit themselves to the Supreme Court agenda and not just give it lip service; they must be willing to support a long-term process for which they often lack patience.

Zacky Husein, Director, Law Programs, Asia Foundation,

Sebastiaan Pompe, IMF Resident Legal Advisor, Jakarta