Bill Guerin, Jakarta – The US is to provide $20 million worth of technical assistance to help reform Indonesia's much-maligned court system. The United States Agency for International Development (USAID) last week signed a memorandum of understanding on the assistance with the country's Supreme Court.
Reform of the country's outdated, obscure Dutch colonial laws, including the Criminal Code, the Civil Act and commercial and bankruptcy acts, are recognized critical for improved governance and the investment climate. Foreign investors and businesses look for tangible signs of progress such as successful cases of, in their eyes, implementation of the law and a degree of certainty in the decisions being handed down.
In the first six months of this year, foreign direct investment approvals jumped 71% to US$5.93 billion from the same period last year, but US Ambassador B Lynn Pascoe warned that the development of the court system was crucial to help enhance the country's investment climate and attract investment. Many foreign investors still questioned the fairness of the courts. And the court system, rule of law and protection of property rights were "absolutely key" for the economic development of the country, he said in a news conference.
Although judicial and legal reform has been underway since the downfall of president Suharto in 1998, the pace of reform is deemed as far too slow by many, including the international community and the World Bank, the International Monetary Fund, the Asia Foundation and the Japan International Cooperation Agency, which are all backing reform of the Indonesian legal system.
Judicial corruption and corruption in other elements of the legal system – the attorney general's office, the legal profession and the police force – are widespread. The system needed a complete overhaul after four decades of the authoritarian regimes of Sukarno and Suharto, when protecting the interests of the political agenda of both rulers and the elite took precedence over upholding the supremacy of the law.
The aid program will be implemented over four years and will include assistance in drafting laws and amendments, modernizing court administration, computerizing information systems and training. Poor legal training and confusing and obscure statutes lead to many confusing legal decisions. Poor transparency and a lack of professionalism add to the problems.
Negative perceptions
Three cases that grabbed the headlines this year illustrate the vital need to strengthen respect for the judiciary.
In March, Chief Judge Soedarto and four other government-appointed judges, all of whom also acted as the jury, found militant Muslim cleric Abu Bakar Ba'asyir, the spiritual leader of the Jemaah Islamiah organization, guilty of involvement in the Bali slaughter that killed more than 200 tourists, mostly Australians. Soedarto said the defendant was part of an "evil conspiracy that caused death and endangered the lives of others". Though Indonesian courts have convicted 35 Islamic militants for the Bali bombings and sentenced three of them to death, the court imposed only a 30-month jail sentence on Ba'asyir, who, taking into account the time he had spent in custody, was left with a total of 18 months to serve.
The Australian government and media were angry as were many Western governments, notably the US. Jakarta, however, stood its ground and defended the supremacy of law. "The verdict was quite appropriate because it was clearly a matter fully within [Indonesia's] judicial process as the government from the beginning has always adopted a position of respecting the independent judicial process," said Minister of Foreign Affairs chief spokesman Marty Natalegawa
The Schapelle Corby case, on the other hand, sparked widespread complaints about the severity of the sentence. Yet the young Australian woman attracted unprecedented public and media attention despite the fact that a legally convened and constituted court convicted her of marijuana trafficking in Bali and sentenced her to 20 years imprisonment.
The general gist of the criticism was that sending Corby away for so long compared to the light sentence given to a convicted terrorist indicated a lack of serious intent toward penalties for terrorism but an over-the-top approach to the carrying of marijuana, which in many jurisdictions is no longer an offence.
In the third case, the Supreme Court slashed five years from a 15-year sentence imposed on playboy billionaire "Tommy" Suharto, the son of the former president. He was convicted in 2002 of sending two hitmen to kill Justice Syafiuddin Kartasasmita, a judge who had found him guilty of corruption and who was murdered about four years ago. He is now due for release next year, just five years after setting up the judge's murder.
Yet, behind the headlines, and the widespread negative perceptions of the legal system, significant legal and judicial reforms are being implemented.
The Supreme Court
The possibility of executive-branch interference with the courts through "presidential decrees" had been standard practice during Suharto's reign. In a historical move expected to result in an independent Supreme Court, the responsibility for administration and discipline of the courts was transferred to the Supreme Court from the Ministry of Justice.
Law 4/2004 on judicial power and law 5/2004 on the Supreme Court were implemented fully in June last year. The ministry's power to determine the promotion and rotation of judges had left it wide open to accusations of influencing Supreme Court judgments.
Professor Bagir Manan, Chief Justice of the Supreme Court, said at the rime the new system would make it impossible for the state to manipulate the courts to accommodate its interests.
"Since the idea of a single judicial system was introduced, many people have accused the courts of unwillingness to fight corruption, collusion and nepotism as well as judicial corruption," he said. "We must work hard to prove [to the public] this system will not turn the Supreme Court into a nest of crooks, an accusation already leveled by many."
Yet today decisions on the promotion of judges still rest entirely with the Minister of Justice and the president. This gives rise to the obvious claims that judges may well be tempted to take decisions where questions of impartiality come a distant second to supporting the interests of the executive.
Though not headline-grabbing news, steady progress in reform has been achieved under Manan, widely acclaimed for his strong leadership and for his role in the creation of a far-reaching, comprehensive 2003 "blueprint" for reform. The constitution has been amended to provide for broader control of the executive over the president and a clearer separation of powers between the executive and the judiciary. A new Supreme Court regulation allows for out-of-court settlements for civil cases through a mediation process, previously unheard of in Indonesian civil law.
However, accountability mechanisms to "oversee" the court have yet to be set up. Manan has said that the independence of the court, without proper supervision, would only enable it to abuse its power. A constitutional amendment in November 2001 mandated the establishment of a judicial commission, which will have the authority to select Supreme Court justices and monitor its performance. The bill to legalize this still awaits passage through parliament.
A 2003 World Bank report said many lawyers were "apparently often the conduits for bribes to judges, prosecutors and the police". The World Bank has called for similar external watchdogs for the prosecution and the police. "We look forward to the full establishment and functioning of the judicial commission, prosecutorial commission and the commission on the national police, which should become important oversight bodies for legal and judicial institutions". In January the bank said it was time now for "credible implementation actions" that signal decisive and demonstrable steps forward on the issues of judicial reform".
US priority The US focus is clearly aimed more at helping Jakarta improve its commercial and contract laws than with the main need to come to grips with far-reaching judicial reform needed for a developing democracy and to inspire public confidence in the courts and trust in the law. Such reform will eventually result in better court decisions, a more professional judiciary and better justice for all citizens, but may take a very long time.
Nonetheless, the aid is timely and William Frej, Indonesia mission director for USAID, said more American businesses would have invested in Indonesia if there was a better court system. A news release from the American embassy reiterated the need to create modern, efficient and reliable courts that are free from corruption, "and that can resolve disputes consistent with the needs of a modern market economy". Deputy Chief Justice Paulus Lotulung conceded there were too many loopholes in the interpretation of commercial law, thus "enabling other people to take advantage of the weak system".
Confusing, redundant, contradictory, misapplied, misinterpreted and disregarded laws and regulations remain severe impediments to business. Lest there should be any doubt about what the US expected to get for its money, Frei summed up as follows, "Indonesia is an extraordinary country to do business but again the capacity of the court system at this point of time does preclude the total involvement of the US private sector."
[Bill Guerin, a Jakarta correspondent for Asia Times Online since 2000, has worked in Indonesia for 20 years as a journalist. He has been published by the BBC on East Timor and specializes in business/economic and political analysis in Indonesia.]