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.