Supreme Court causes backlogs, not the law

Sebastian Pompe, IMF Residence Legal Advisor, Jakarta

One of the most visible problems facing the Indonesian Supreme Court is the backlogs. Though significantly smaller than those of the Indian or Philippine Supreme Courts, Indonesian backlogs still stand at a steady 16,000 cases. They are a major source of injustice for the delays they cause, and the manipulations they invite. Backlogs are not something new.

They have been with the Supreme Court for several decades, and nothing much seems to change them. The Supreme Court in the past has tried to overcome backlogs with significant increases in Justices, and supporting personnel. This has not helped.

The Supreme Court has received extra funding for incentive payments to Justices to overcome the backlogs. This also has had no effect. It is almost as if there is an institutional interest in retaining backlogs. What is clear is that the backlog problem is not something that can be resolved by simply throwing more people or money at it.

There are many reasons why backlogs exist. Delays in civil cases are caused by parties themselves, by requesting endless deferrals. (An order from the Supreme Court that instructs such parties to "show cause", may significantly reduce the backlog pile, as it did in India.)

But most reasons are internal to the operation of the Supreme Court. They relate to such matters as the way decisions are drafted, which is a major administrative burden. Even simple dismissals are very lengthy documents that exhaustively reiterate the facts, exhaustively repeat arguments of both parties and exhaustively repeat lower court decisions. (Restructuring Supreme Court decisions is likely to be helpful here.)

Spurious appeals or appeals with evident procedural errors should be summarily dismissed. (This is allowed in many foreign courts and reduces case load by up to 40 percent.) Backlogs are also caused by the way cases and decisions are processed within the Supreme Court administration. (It is necessary to restructure case processing within the court.) All these and many other factors are critical, and the backlog issue is unlikely to be resolved unless they are considered.

Yet the backlog debate in Indonesia does not focus on deferrals or internal court operations. Instead, the reason which is most often cited in Indonesia for explaining the backlogs is appeal barriers. Simply put, appeal barriers control the flow of cases from the lower courts to the superior ones.

Common opinion in Indonesia is that backlogs exist because appeal barriers are low. It is widely believed and asserted that because of this, all cases are appealed to the Supreme Court. And this belief is the principal reason why appeal barriers are the focus of scrutiny.

If in fact all cases were appealed, then evidently appeal barriers would be a cause for the backlogs. But this manifestly is wrong. Official government records show that the Indonesian general district courts decide 1.5 million cases annually, of which only 6,500 end up with the Supreme Court.

This roughly speaking is 0.4 percent, which is not so bad. (In the U.S. federal judiciary, and excluding bankruptcy cases, the appeal rate between District Courts and the Supreme Court is around 2.5 percent. This is 6 times higher than in Indonesia.) Generally accepted misconceptions can cause major mistakes, and the relationship between the Indonesian appeal system and backlogs needs closer attention than it has had so far.

Some of these misconceptions are apparent in a recent article in the magazine Tempo July 22-28, 2003, in which Achmad Ali argues that the appeal system is at fault in two respects, causing Supreme Court backlogs. The first is that the Supreme Court cannot summarily reject appeals. Instead, it must issue an argued decision on all cases that are appealed. The second is the procedure which allows for cases to be reopened after all appeals have been exhausted. This procedure is much used in Indonesia.

It causes the Supreme Court to decide many cases twice, and adds to its workload. The solution of Ali is simple: He proposes to introduce to U.S. system of appeals before the Supreme Court. He mentions two features: Discretionary authority to reject cases (discretionary systems), and no reopening of cases. These ideas invite closer scrutiny.

The hidden workload. It is easy to think that the workload of the U.S. Supreme Court is small. After all, the U.S. Supreme Court only issues about 80-90 decisions annually, whereas the Indonesian Supreme Court must issue 6500 just to break even. Nevertheless, even in systems of discretionary appeals, all requests must be studied to determine whether they should be denied or come up for a full decision. In the U.S., the number of requests totaled 7,924 cases in 2001.

Whilst the law clerks help, the Justices still take a vote, and occasionally engage in argument, on whether or not to allow a case to proceed to a full hearing and a decision. The workload of the Supreme Court therefore is not just the 80-90 decisions that are issued, but includes the very large bulk of decisions that are studied and rejected. The U.S. Supreme Court therefore has a large hidden workload.

Strong substantive similarities. Underlying the argument that discretionary systems help resolve backlogs is the assumption that the grounds of appeal must be simpler. For if they are not, then surely deciding on whether or not to hear a case would be just as time-consuming as in the Indonesian cassation system.

It is wrong to conclude that because denial of appeal by the U.S. Supreme Court is discretionary, it must also be arbitrary. The U.S. Supreme Court applies an elaborate system to determine whether a case is accepted or rejected. This system has features that are quite similar to cassation system prevailing in Indonesia. Thus, one of the principal reasons for rejecting a case in the U.S. is because it is fact specific. This is exactly the same in cassation systems.

Transparency. One of the principal features of discretionary denials is to shift the decision-making process of the court from a public and accountable process, to a hidden and internal one. Denials in the U.S. system are not explained by the court in a public decision, unlike most cassation denials. One therefore does not really know why a case is accepted, or rejected. It may not be desirable in the Indonesian context to solely rely on the good graces of the Supreme Court whether or not a case is heard on appeal.

Increased fragmentation. Reducing Supreme Court appeals means that most cases will go no further that the Appeal Courts. Most disputes will be resolved in final instance by Appeal Courts, and it is these courts that will carry the principal burden to ensure legal consistency and discipline of the system as a whole. In the U.S., the Federal Courts of Appeal in practice absorb by far the most appeals.

But the situation in Indonesia is quite different. Not only are there 27 appeal courts in the general judicature alone -- more than twice the number of U.S. circuits. Also, understanding and application of the rule of precedent is weak to say the least. There is little support from structured academic debate. In Indonesia the consequence of reducing Supreme Court access would therefore be to fragment decision-making in the judiciary.

Increased injustice. As we have seen, there are many reasons why the backlogs at the Indonesian Supreme Court have arisen. Not all of these reasons are bona fide. It is important to mention however, that one of the main historical reasons is very understandable. It arises out of recognition by the Supreme Court in the 1960s and 1970s that the lower courts were beginning to make mistakes on an ever more frequent and larger scale.

These mistakes could bring about irreversible consequences. There were a series of lower court decisions to demolish houses, for example, which were overturned on appeal.

"How can we let a blatant injustice stand, when we all can see that the lower courts erred?" an Indonesian Justice wondered in the 1980s. Hence the high frequency of bad decisions of the lower courts brought the Supreme Court to lower appeal barriers, and ignore appeal restrictions.

Though understandable, the Supreme Court policy of "pulling up cases" misfired in the long run. The backlogs are a source of injustice in their own right. This policy needs to be reconsidered. Yet a simple increase of appeal barriers will mean that the rampant injustices of the lower courts will remain uncorrected.

In the end the solution to the backlog problem resides not in the appeal system, but in factors that are essentially internal to the way the Supreme Court operates. Procrastinating advocates in civil cases must be forced to show cause, or have their case dismissed. Appeals with basic procedural mistakes must be summarily dismissed. Fact-specific cases must be denied. Court decisions must be re-formatted. Case review must be made highly exceptional, as the law requires. And above all, the internal Supreme Court administration must be re-organized.

The article is personal view