Time to rejuvenate court's image
By Frans H. Winarta
JAKARTA (JP): The plight of the Supreme Court began with Justice Adi Andojo Soetjipto's suspicion of collusion between a justice and a former justice.
The justice was in charge of the Gandhi Memorial School case. The former justice was the defense attorney.
Justice Adi had to account for his whistle-blowing to the special internal investigation into the alleged collusion. The findings of the investigation led to a denial of collusion at the Supreme Court. Supreme Chief Justice Soerjono said there was only an "error in the procedure" in the way the case was processed.
Justice Adi was not satisfied with the findings and proposed further investigations. This led the chief justice to submit a request to President Soeharto to dismiss Justice Adi.
People from virtually every cross section of society, from House members to educators, from community leaders to law practitioners and the press have voiced their reactions to the dismissal proposal. Some favor the proposal but others do not.
The confusion surrounding the allegation of collusion has stemmed from the unclear definition of the profession of attorneys-at-law. In developed countries a former justice can never be a defense attorney.
Had we had similar legislation, the Supreme Court's plight would have never occurred; where a justice's opinion may have been influenced by the bias of a former colleague.
The strong Indonesian culture of sungkan (reluctance to speak out) has strongly contributed to the influence of bias.
The Gandhi Memorial School case is one of many cases where judgments are made under subjective conditions. The former chief justices Subekti and Ali Said chose to become a lecturer and the chairman of the human rights committee respectively.
What is developing out of the collusion accusation against this most respected institution is alarming. The opinions and comments expressed by various circles tend to violate impartiality and the independence of the judiciary.
The U.S. has a strong press corps that always questions all issues, but it will remain silent about anything involving the Supreme Court because it is one of the pillars of the state. The independence and freedom of the Supreme Court is strongly upheld by the American press.
The Gandhi Memorial School case is in fact not a personal matter between Adi Andojo and Soerjono. It is much more extensive and touches on a fundamental principle, namely the independence and freedom of the judiciary.
Amid this confusion, it is good to review some parts of the "Universal Declaration on the Independence of Justice" document that came from the World Conference on the Independence of Justice in 1987 in Montreal.
On national judges the document says in part:
* Judges individually shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
* In the decision-making process, judges shall be independent vis-a-vis their judicial colleagues and superiors. Any hierarchical organization of the judiciary and any difference in grade or rank shall in no way interfere with the right of the judge to pronounce his judgment freely.
* The judiciary shall be independent of the Executive and Legislature.
* The judiciary shall have jurisdiction, directly or by way of review, over all issues of a judicial nature.
a) No ad hoc tribunals shall be established;
b) Everyone shall have the right to be tried expeditiously by the established ordinary courts or judicial tribunals under law subject to review by the courts;
c) Some derogations may be admitted in times of grave public emergency which threatens the life of the nation but only under conditions prescribed by law, only to the extent strictly consistent with internationally recognized minimum standards and subject to review by the courts;
d) In such times of emergency:
(i) civilians charged with criminal offenses of any kind shall be tried by ordinary civilian courts expanded where necessary by additional competent civilian judges;
(ii) detention of persons administratively without charge shall be subject to review by ordinary courts by way of habeas corpus or similar procedures so as to ensure that the detention is lawful as well as to inquire into any allegations of ill- treatment;
(e) The jurisdiction of military tribunals shall be confined to military offense committed by military personnel. There shall always be a right of appeal from such tribunals to a legally qualified appellate court.
* a) No power shall be exercised as to interfere with the judicial process;
b) The Executive shall not have control over judicial functions;
c) The Executive shall have the power to close down or suspend the operation of the courts;
d) The Executive shall refrain from any act or omission which preempts the judicial resolution of a dispute or frustrates the proper execution of a court decision.
* No legislation or executive decree shall attempt retroactively to reverse specific court decisions nor to change the composition of the court to affect its decision making.
* Judges may take collective action to protect their judicial independence.
* Judges shall always conduct themselves in such a manner as to reserve the dignity of their office and their impartiality.
The document which was recommended to the United Nations deserves our attention. It is now the right time for the Supreme Court to solve the internal collusion case with insight and wisdom.
Interference by the executive and the legislature will violate the principle, the more so if the interference comes from other circles. Such interference will destroy the Supreme Court's independence and freedom.
The idea of a nation based on law has been brewing since the struggle for independence. The fear of the Dutch of a rise of Indonesians' legal consciousness was reflected in the mixed reactions of Dutch colonial government circles on the establishment of the Law Faculty (Rechts Hogeschool) in Jakarta (then Batavia) in 1924.
The text of the Youths' Pledge was drafted in 1928 by indigenous legal experts who initiated the movement toward independence.
The writer is a Jakarta-based attorney-at-law.