Time to rejuvenate court's image

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.