Trap of Independence: Judicial Reform in Indonesia

First, give dignity to the judges. Second, MA must not be overrun with cases.

(Prof. Satjipto Rahardjo, 2009)

The judicial reform has been discussed again after the arrest of a judge and a number of court officers by the Corruption Eradication Commission (KPK). People have realized that the judicial institution remains weak and prone to corruption practices. Some high-ranking officials of the judiciary are even believed to involve in the recent suspicions, although the investigation and the trial process are still running. While the legal process is underway, the debate about the judicial reform began to shake up Indonesian politics. Prominent figures have already spoken up, and pointing out who should take  a political responsibility for this phenomenon.

President Joko Widodo has even been asked to declare the situation as a state of emergency and to issue a government regulation in lieu, but he seems to be cautious in considering his options. He is apparently still waiting for a certain direction of public pressure. He himself has showed his respect to the judiciary (under the separation of powers doctrine) recently, when an international journalist asked his opinion on the implementation of capital punishment in Indonesia. It was the decision of our judges, he said. Meanwhile, Vice President Jusuf Kalla has indicated the needs for an evaluation of the judicial reform by saying: “This could (also) happen in the future under any Chief Justice, so the internal justice system nationwide should be evaluated.” Ministry of State Apparatus has scheduled its evaluation this month, but it remains a question what and how the judiciary will exactly be evaluated, and whether it won’t be another routine agenda.

The Vice President’s statement is quite interesting. Apart from any possible change following this political turbulence (the term of the current Chief Justice Hatta Ali will end February next year, although he can be elected again), there isn’t any fresh idea proposed yet to restate the judicial reform process. Most of the opinion is still referring to the moral virtue of the Chief Justice. In this case, the reform is not only blindly trusted on the virtue of one central actor, but it also finally rests on an absolute indicator: he is a good boy, or a bad boy. President seems to keep his position reserved,  however, as constitutionally he cannot interfere on this matter.

The phenomenon, commonly called as ‘judicial mafia’, is actually not new. Nine years ago, there was a similar controversy. Hence, it must not be very surprising that some court officials are caught in a bribery case. The question is, will the public become more confident on the institution when many court officials are caught, or when a little (or no one of them) is caught, while many people believe that it happens a lot? Not easy to answer, although all parties knows for sure that this should never ever happen (again).

What’s clear from such a phenomenon is that the cases are actually only a symptom, and not the cause of the ineffectiveness of the justice system. The existence of a (fair) trial with an independent and impartial judge should ensure the transparency and the effectuation of generally accepted (legal) standards. It is however not the case here. Lack of standard reference, which can be used as a certain guidance in the judicial process, makes the judges become vulnerable to undue influences from litigants, including the use of bribes, or any political pressure. To find out the root of the problem and to address this issue systemically, perhaps one must first understand what is judicial corruption, and why it takes place. It may only be tackled by re-arrange the justice sector.

 

Root of judicial corruption

The term ‘judicial mafia’ is commonly used in Indonesia to describe any corrupt practice related to court proceedings. This practice is not unique, or a typical Indonesian one. Such a practice also occurs in many other countries in the world, even in the developed countries (Wallace: 1998). In the literature, ‘judicial corruption’ is commonly defined as “[the use of bribery or connections] to buy favourable interpretations of the law”, to distinguish it from ‘bureaucratic corruption’ which aims “to influence law-implementing processes” (e.g. You, Jong-Sung, Kaghram: 2005).

The term is not only reserved for the misuse of power by judges, “[…] When we talk about judicial system corruption (judicial corruption for short) the paradigmatic image is that of judges taking bribes. Judicial corruption is a lot more, however. It includes all forms of inappropriate influence that may damage the impartiality of justice, and may involve any actor within the justice system, including lawyers and administrative support staff.” (Glopen: 2014) Hence, judicial corruption must not only be tackled by increasing the accountability of judges to certain rules (which is in fact not always evident). If this is caused by undue political influence, for example, the accountability of judges to the power-holders should exactly be reduced, including the power according to the hierarchy within the judiciary itself.

The compliance to the rules may be an important starting point of the discussion, since corruption implies the existence of an infringement or misappropriation on ‘what should be’ (the rules). It can be further expected as well, to set right such an infringement through a judicial process. The problem is, the rules itself must still be applied by the judges. Hence, the implementation of rules can be uncertain and, in fact, depends on the rule of law practice in a specific country. Look at the corruption cases, for example, the tendency to punish the perpetrators without further asking what they actually have done and why that act must be punished, is believed to hinder the local government spending. At the same time, the sentencing seems to remain as the main focus of public discussion instead of the reasons of the punishment. This situation will definitely affect the pace of development.

Given the very high uncertainty in the implementation of law, the affected parties will also continue their attempts to influence the judge by using any other means, than filing any argument based on a certain legal basis. In addition, the independence of the judges will be seriously at stake. A judge looks very powerful (since he/she is able to decide based on his/her whim alone), but actually he/she is very weak professionally (because his/her colleagues are not necessarily going to follow, or even consider, his/her opinion).

Butt and Lindsey, for example, have acknowledged the difficulty (or even the impossibility) in assessing the legality of the use of the judicial authority in Indonesia (Butt & Lindsey in Aspinall & Van Klinken (ed.): 2011). Their reason was, court decisions in Indonesia were mostly not published, so there is no tool that could be used to assess whether this authority has been used properly.

In the last few years, the Indonesian Supreme Court (MA) has actually published court decisions at all levels, so something has been changed. As reported by many observers, more than one million judgments have been published. Unfortunately, after a further look, one could perhaps still argue that those judgments are scattered away in an endless jungle where people will no longer be able to see which decisions are used as a guidance by the judges (jurisprudence) and which are not. This lack of legitimate (legal) standards maintain the fertile ground for judicial corruption. The use of judicial authority knows in fact no limit and, therefore, invites the litigants to influence the judges improperly.

A well-known NGO, LeIP (the Indonesian Institute for Independent Judiciary), has stated in the media recently that (the result of) the dysfunctional cassation mechanism seems to be a cause of rampant judicial corruption in the country. It can be seen, for example, in the one of the cases that came to light lastly. Undue influence to the justices at the supreme court was allegedly conducted through two court officials who handle the cassation file (Andri Sutrisna case).

The two officials suspected in that case have indicated that they could predict, and apparently also interfere the judgment, by selecting the justices based on their strictness. It may not happen in other countries. If we compare it to the cassation practices in other countries, the sentencing will not fall under the authority of the supreme court justices. The sentencing will be deemed as a matter of a fact and should be reviewed by the lower courts. If the supreme court justices are authorized to do so, as we can see here, the highest court will attract delicate cases to themselves without any possibility to conduct hearings. And how do the justices build their considerations?

Reviving the hierarchy that ensure the use of a particular standard in Indonesia was not easy, however. The biggest challenge has even come from the judiciary itself. When the Indonesian Supreme Court has set the rules of the Chamber that are expected to be a guideline, for example, many judges (including a number of supreme court justices) are still reluctant to use it by appealing to their independence. The principle of judicial independence is thus understood as the independence of individuals (judge) and not the independence of the institution (the judicial power).

It is remarkable that the judges tend to use a winner-take-all approach on this matter, instead of showing an objection, and their reason, against (a) particular norm(s) set by the Supreme Court in the guideline. As a result, the judicial decision is not only ignored by the judges themselves, but also by the litigants, who perhaps realizes that the institution must be affected by any other means. The weakness of legal community which may discourage the use of such common standards has worsen the situation, though it may need further explanation (see for example Massier: 2008).

It all happens, while the constitutional rule is clear. Article 24 UUD 1945 has expressly stated that: “The judicial power shall be independent and possess the power to organize judicial administration in order to uphold law and justice.” The independence of the institution is not separated from its purpose and underlies the principle of accountability. Hence, the judicial authority must be used solely to uphold law and justice. And, the way to do it, is by showing the justice seekers the existence of certain standards that are generally accepted and used by the institution.

As US Supreme Court justice, Stephen Breyer, once said: “[…] proper adjudication can do for the justice and stability of a country is only attainable, however, if judges actually decide according to law, and are perceived by everyone around them to be deciding according to law, rather than according to their own whim or in compliance with the will of powerful political actors. Judicial independence provides the organizing concept within which we think about and develop those institutional assurances that allow judges to fulfill this important social role.” (Wallace: 1998) This is the very essence of the institutional independence and, if not realized, perhaps the primary cause of judicial corruption. Litigants will only think from their each own position and, when there is no benchmark at all, they may use any other means that’s seen to work effectively. In addition, every chance will be utilized, including using all of possible remedies.

Number of Cases SC vs HCs

Source: Pompe (2005), SC Annual Reports

 

Feeble judicial technical function

In 2009, supported by civil society and international donors, the Supreme Court has developed the Blueprint of Judicial Reform 2010-2035. It was actually a follow up of the earlier initiatives in 2003 that had been set up by civil society and supported by the donor. The Blueprint has described separately both functions of the Supreme Court, and, to a certain extent, certain reform agendas. Two main functions of the Supreme Court has been identified, i.e. judicial technical and non-judicial functions, and a number of policy recommendations has been formulated afterwards to strengthen each function. If we look at the annual reports of the Indonesian Supreme Court in the last few years, however, the leadership seems still to only focus on the efforts to reduce pending caseload. The old paradigm remains. It was – and it is – a supreme court, the highest judicial body who should handle the appeal against the decisions of lower court judges.

In this regard, although perhaps not widely known, the judicial reform has certainly been successful from a quantitative point of view. Cases are much better recorded and the database can now be utilized to track any particular case. It has been far more structured than ever before. In addition, the performance for the settlement of cases can now be measured and, combined with the application of the chamber system at the supreme court (in which the settlement of cases is discussed regularly), an increasing trend of the settlement rate can be clearly seen in the last few years. Hence, the judicial reform has undeniably been successful to save the institution from collapsing due to the incapacity in settling the cases, at least for the time being.

Percentage of Settled Case

Source: Pompe (2005), SC Annual Reports, LeIP

 

Despite showing a significant increase in its (quantitative) performance, the cassation function without a general impact (of jurisprudence) has in fact failed to reduce the high amount of influx cases from the lower courts. The ratio seems to remain on 0.90 evenly. It indicates that almost all of the appeal cases (or cases from first instance courts without appeal mechanism) will constantly flow to the Supreme Court.

Cassation vs Appeal Cases

Source: SC Annual Reports

 

The above-mentioned data has shown a high degree of inefficiency which is in the end must be paid by the state and the failure of the highest court in maintaining legal uniformity and in providing a certain guidance to the lower courts (and legal community). In turn, it becomes an important factor that fosters corruption. There is no monitoring mechanism for the effective application of law. One could ask himself how (public) trust could be built in this situation.

But, why there are still so many cassation inquiries?

Lack of jurisprudence is probably a generic answer, but LeIP, supported by the Judicial Sector Support Program (JSSP), have recently made a comprehensive study on this influx of cases. Its research has been specifying the causes, and a number of alternatives to halt it. Many of them are caused by the lack of discipline of public attorneys, or justices themselves, by ignoring the existing rules on the cassation grounds. Meanwhile, other efforts to promote unity of law will only be realized with the participation of legal community at large.

 

Unorganized non-judicial functions

Many observers have recently been pointing at the failure of the monitoring mechanism within the judiciary as well. As already shown, it might be true that the monitoring mechanism of the uniform application of law is not working as it should be. In addition, the monitoring mechanism of judicial conducts have been modified into a mix between an internal and an external supervisory system by the Supreme Court and the Judicial Commission. Hence, some progress have been made on this matter. If it leads frequently to political tensions between both institutions, one must find the answer in the unclarity of the statutory rules and the continuing reluctance of some members of the judiciary. It needs further development, indeed, but there is something to begin with.

A bigger problem lays somewhere else. After the implementation of the one roof system which has transferred the judicial administration into the authority of the Supreme Court, the judiciary has not only had judicial technical, but also administrative tasks. The Supreme Court is therefore not only the highest judicial institution in the country, but also the administrative body who manages the organization and the (financial) administration of judicial institutions (courts) at lower level. This is a very huge task, monitoring the organization of around 800 courts all over Indonesia.

Based on the current organizational structure, however, the Supreme Court has basically only taken over the directorates (of justice administration) of three different ministries and added them into its own organization without carefully re-organizing the relationship between the working units. So far, there is no sufficient clarity on the division of tasks either. One thing is certainly sure, the Secretary (of the Supreme Court) has been appointed as the authorized budget user of judiciary earlier. It seems however not to be realized that he is no longer a secretary of one court (i.e. the Supreme Court), but of the whole judicial organization. Without intending to doubt the seriousness of the leadership in addressing this issues, one might ask himself why the re-organization process is not running smoothly.

As already told, the Blueprint of Judicial Reform 2010-2035 has been developed and it covers both functions of the Supreme Court. To date, a number of reform agendas is smoothly running, such as the modernization of case management system, the publication of judgments, the improvement of settlement rate in the Supreme Court, the implementation of the chamber system, and the plan to simplify legal process (the so-called small claims procedure). However, the re-organization plan seems to be stuck at the moment. The mandate of the Blueprint is basically quite simple: to build up a performance and knowledge based organization. But how to realize it? The plan seems to touch the most political part of the reforms and it runs at a slow pace.

As a supporting mechanism to the judicial technical function, non-judicial functions are actually very important. The independence of judges depends on their work environment as well. This working environment includes many aspects, from the career system (recruitment, education, promotion, placement, retirement), the supporting facilities and infrastructure, and all means needed to manage them. Unclarity in the official status of judges, for example, has stopped the recruitment of new judges since 2011. Supreme Court officials believe that it would lead to a shortage of judges, though no exact calculation has been made yet.

A rough calculation has been made by the Supreme Court recently, but it was only based on the common annual formation (about 200 candidates annually) or the number of existing (and coming) courts in the country. Still, it may not guarantee the actual needs. Compared to, the instruments used in US or in the Netherlands, for example, the caseload will be influential in determining the formation.

Source: SC Annual Reports (traffic and small violations are excluded; PN (General Courts), PT (General High Courts), PA (Religious Courts), PTA (Religious High Courts), PM (Military Courts), PMT (Military High Court), PTUN (Administrative Courts), PTTUN (Administrative High Courts))

 

In 2010, an international observer has pointed out that the position of judge must be regarded as a prestigious position, so there should not be too many of them. In the Netherlands, for example, the annual caseload of the first instance and high courts is 1,7 million cases (including 1,37 million small claim cases), while there are only 2357 judges and 7265 officials to handle all of those cases. A careful study on the Indonesian judiciary has further found out that the spread of judges (and prosecutors) in Indonesia is uneven (PDP: 2011).

Another salient aspect of the human resource management is the promotion and (re-)placement mechanism. As we can see in the following figure, the judges at the first instance courts are the most busy judges in the country, while their colleagues at the high courts are the least. It certainly needs further attention immediately, since many facilities in remote areas are not properly maintained, let alone any security guarantee, or any support to human resource capacity.

Case Per JudgeSource: SC Annual Reports (traffic and small violations are excluded; assigned judges to SC (not justices) are included)

 

In addition to its reform agenda in the Blueprint, in the last few years the Supreme Court has also promoted the standardization of a quality performance system through a service-based ISO 9001:2008 in a number of courts. However, the impact of such a standardization is very limited, since the decision-making is still concentrated in the Supreme Court. The organization of different courts in Indonesia are in fact very centralized, in terms of budgeting, personnel, and even its organizational structure (see for example the last supreme court regulation of the registry and the secretariat). Hence, it is not surprising that many people pointed at the Supreme Court, when they talked about the ineffectiveness of supervision mechanism (of registrars who work in the different courts in Indonesia).

In short, an internal evaluation that is based on incidental cases, such as the review on supervision mechanism of registrars is not a solution. Neither is the review on the presence of any performance standardization tool, like ISO or (financial) audit reports. Such tools are useful, of course, but one should also look at the division of tasks within the organization.

After the implementation of the one roof system, the organizational structure of the judiciary has in fact only unified three different directorates and the existing administrative structure of the Supreme Court. This structure is however not based on the division of certain tasks. Looking at the recent case, one will see that the register of a case file at the Supreme Court is not only done by the registrar (just like in a court), but also by the directorate (general) who is actually in charge for the administration of (lower) courts. It might be worth noticing that this organizational structure, and the implementation of the administrative functions, are not separated from the executive branch.

 

Further steps to refine judicial reform

As we can see, a lot of things can still be expected to improve. To sum it up, the judicial technical function does not work as it should. Due to the principle of judicial independence, however, the improvement will much depend on the efforts made by the judiciary itself. With or without the introduction of the one roof system, the Indonesian Supreme Court must ascertain the uniformity of law implementation in the whole country. Some progress has been made recently and the actual challenge is how to upgrade the quantitative performance into the qualitative one, since the cassation function remains flawed.

In improving this judicial accountability, the executive could encourage judges to fulfill their obligation in providing sufficient consideration. This is the very essence of the judicial accountability. Although this obligation has been regulated in Article 53 Law of Judicial Power, it is not always fulfilled yet. Hence, the discretion of judges becomes almost unlimited and in the end increases the risk of corruption. A number of legal academics have recently taken a great initiative to institute an ‘examination’ (comments on judgments). This is a positive progress. But, such an initiative will only be meaningful, if the standard is then used by litigants, and applied repetitively through the trials. It will be sufficient, in my opinion, if they can at least prove that Article 53 is not always applied by the Supreme Court.

In fact, it is the task of (legal) academics in guarding the (realization of) their professional value. In addition, new challenges of the administration of justice after the introduction of the one roof system needs further refinement. A technical perspective from academics could apparently mediates any political tensions. As this theme it not much discussed in Indonesia at the moment yet, it might be important to also look at the relation between judicial independence and judicial administration in other (new) democratic countries.

In addition, the government could test the consistency of the judiciary by observing the judicial rulings in similar cases. In connection with the law enforcement function of the prosecutor, it must even be immediately set right. Current policy of the prosecutor in filing remedies based on the severity of the punishment does not only discourage any attempt to use legal arguments, but also distorts the cassation function of the Supreme Court. Furthermore, without studying the actual implementation of law, it is actually hard for the government to get any knowledge of the actual implementation of any particular law which will be needed in determining its legislative policy. Such a consistency test may be conducted upon the government’s priorities, like environmental law, narcotics and drugs, as well as the fishery and mining sectors.

The second aspect of accountability is the administrative functions. After the introduction of the one roof system, the administrative tasks are transferred to the judiciary. In fact, this is not as simple as bringing three directorates ‘under one roof’. It might be true that the judiciary has got more space in governing the courts after the transfer of directorates of justice under three different ministries, but the office settings remain. Judges are in fact civil servants who still fall under one single personnel system.

Two greatest demands from the judiciary are closely related to this fact. First, the judiciary asks the lawmakers to regulate the judicial office. Second, the government must conduct recruitment of new judges that has been delayed for several years. Since there is still no certainty on the new official position of a judge, the demand is to recruit the candidates as civil servants.

Both are important and certainly need to follow up. The bill of the judicial position is at the moment being discussed by the legislative and the fulfillment of the second demand will much depend on the fulfillment of the first. Yet, as already shown above, the needs of human resource must be first objectively calculated. In this regard, not only the judiciary, but also the executive and the legislative, are all accountable for the use of the state budget.

Therefore, the executive is obliged to take any measures in order to promote the accountability of the judicial administration. In upholding the principle of separation of powers, however, one thing must always be borne in mind, one will need empirical data in shaping the policy. As also already shown, it can be started with a workload analysis of each court, followed by the measurement of actual needs in terms of personnel, finance, and facilities. In addition, the unfinished organizational restructuring process must be continued.

Basically, judicial corruption can only be overcome by encouraging the use of generally accepted standards that will improve the judicial legitimacy. President should therefore not hesitate to use his authority to continue the reform.

 

 

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