Towards judicial liberty
Towards judicial liberty
The skepticism that attends the recent move by the House of
Representatives to end the duality in supervision over the
judiciary, by placing control over the country's court system
solely in the hands of the Supreme Court, illustrates perhaps
better than anything the distrust of state power that continues
to exists among the public. After all, the step means, at least
on paper, that Indonesia is moving closer toward achieving a true
separation of powers as envisioned by the trias politica
principle of the independence of the powers of the state.
The negation of the trias politica principle of the separation
of powers has a pretty long history in Indonesia -- dating back
to the late 1950s, when then president Sukarno declared the
western style of "free-fight liberalism" unworkable for
Indonesia. Consequently, Sukarno proclaimed his own system of
"guided democracy," which he claimed was inspired by Indonesia's
own indigenous values, with all the powers of government
concentrated in the hands of the executive -- that is to say, the
president. On March 6, 1962, Sukarno openly incorporated the
Supreme Court into his government by appointing its chairman,
Wirjono Prodjodikoro, a cabinet minister. That date formally
marked the end of the independence of the judiciary in Indonesia.
After the New Order government under the leadership of
president Soeharto took over in 1968, a token gesture toward
democracy was made by once again taking the Supreme Court out of
the executive branch, and reinstituting it as an independent
organization. Even so, under the authoritarian regime of
president Soeharto, judges often felt pressured to rule in favor
of defendants with good connections to the center of power,
especially in political cases. Any rejection of government
intervention could result in dismissal or transfer to some remote
and isolated area in this vast archipelago.
After the birth of the reform movement in 1999, an odd vestige
of the old executive-heavy arrangement that had been inherited
from the Soeharto era remained in existence, in the duality that
was contained in the two aforementioned laws. The point is that
while one law puts the Supreme Court in charge of dealing mostly
with appeals, the second empowers the Ministry of Justice and
Human Rights with overseeing the promotion of judges as well as
their placement, salaries, and other administrative affairs.
Obviously, this kind of arrangement leaves the door wide open to
government interference in the administration of justice.
With last Thursday's revision of the two laws, the House of
Representatives has in effect removed a major obstacle toward
transforming Indonesia's judiciary truly into a free and
independent body. Nevertheless, doubts persist. Rizqi S.
Assegaff, of the Institute of Research and Advocacy for
Independent Courts (LeIP), for example, says the revisions were
made in a hurry and without the public's participation. The
revised laws still give too much power to the Supreme Court
justices. The revised legislation, he said, should have
specifically mentioned that without the approval of a judicial
committee, judges cannot be dismissed or removed.
Another legal expert, Harkristuti Harkrisnowo, of the
University of Indonesia, agreed that the revised laws fail to
mention the need for the presence of supervisory bodies that
could restrict the power of the courts. "I also do not see any
political will from the government to establish an independent
judicial system," she commented. "It will take time to develop."
Nevertheless, it must be admitted that the revised laws
represent an important step in the right direction. For too long
Indonesians have only been able to dream about an independent
judiciary presiding over the meting out of true justice in this
country. Of course, much more work needs to be done to turn that
dream into reality. It is not an easy task to accomplish. But so
long as Indonesians are willing to persist, we are confident that
a fairer, more impartial judiciary will gradually emerge.