Skewed Justice in Indonesia’s Tainted Courts

Chief Justice Bagir Manan, the head of Indonesia's Supreme Court, is facing increasing calls for his resignation over his recent statements about corruption, particularly after he said in early August that if the state just gets stolen government money back, there is no need to hunt down those who stole it.

Manan’s critics have long claimed that his history and his association with the corrupt Golkar Party during the reign of deposed Indonesian dictator Suharto leave him singularly unsuited to push ahead with reforming the country’s notoriously corrupt judiciary – especially in light of  the fact that President Bambang Susilo Yudhoyono has made cleaning up corruption a major goal of his administration.  Nonetheless, Manan won a landslide endorsement in early May for a second term from 44 of his 48 fellow Supreme Court justices, angering legal watchdogs who say the most important post in judicial reform had thus been decided by a small group of people who were themselves stained by corruption.

Despite a pledge by Manan that "cleaning up the house" would be a top priority, and action would be taken against corrupt judges, the Supreme Court’s disciplinary committee has investigated only a handful of judges out of scores suspected of taking bribes -- and exonerated them all.

In particular, in 2003 the committee exonerated three Jakarta Commercial Court judges who had allegedly taken bribes to declare the local unit of Canada-based insurance firm Manulife bankrupt even though the company was solvent. The Supreme Court defended the move, though the state's Audit Commission for Public Servants’ Wealth, now defunct as it happens, found that two of the judges had failed to clarify discrepancies in their wealth and had been dishonest.
 
Manan was appointed Chief Justice in 2001 after being nominated by Golkar despite the fact that he had no judicial experience. He had been a director general in the Ministry of Justice under Suharto and was a former Golkar administrator. Another senior Golkar figure, Marzuki Darusman had just been appointed Attorney General and reformists claimed that Golkar, with such control of key legal institutions, would block reform.

A 2003 audit report by the Supreme Audit Agency lists Manan’s personal wealth at only Rp678 million, calculated from the value of a house, some land, four cars, some precious stones and his bank deposits. Hardly the stuff of scandal.  His current official salary is only Rp20 million (US$2,200) a month.
 
During his first term Manan, who heads what is essentially a final court of appeal with the right to overturn regulations issued by the legislature and the executive, presided over two highly controversial cases that increased skeptics’ doubts about his commitment to reform.
 
The first, the acquittal by the Supreme Court of the former Golkar chief and speaker of the House of Representatives, Akbar Tanjung in a graft case involving state funds, was seen as a major blow to any hopes of victory in the battle for reform of the judiciary.
 
The second involved cutting the sentence of playboy billionaire “Tommy” Suharto, the son of the former president, who was sentenced to 15 years in jail in 2002 by the Central Jakarta District Court for murder, fleeing justice, and illegal possession of firearms, explosives and ammunition. He was convicted of sending two hitmen to assassinate Justice Syafiuddin Kartasasmita, the judge who had found him guilty of corruption.
 
However, the Supreme Court slashed five years from his 15-year sentence. He is now due for release next year, only five years after setting up the judge's murder. The two men paid Rp100 million to kill the judge are serving life sentences
 
Lately Manan has also been under fire over accusations that he was involved in an attempt by Suharto’s half-brother Probosutedjo to bribe the Supreme Court into overturning his corruption conviction. Probosutedjo's lawyer Harini R. Wiyoso admitted she gave $500,000 intended for Manan to Supreme Court officials. Manan, who has been questioned by prosecutors and police over the allegations, has denied accepting the bribe and has not been charged with any offence.
 
What the Probosutedjo case does prove, according to Asep Rahmat Fajar, head of the Indonesian Judicial Monitoring Society, is that "buying court verdicts has been a systematic and organized crime in the country's legal system. It involves people from the highest levels, such as high court judges, down to the lowest levels, such as administrative staff in the Supreme Court."
 
Commenting publicly on the controversial Lapindo mudflow case, in which an errant gas well delivered an environmental disaster that resulted in the loss of 6,000 homes, Manan also claimed the government should not focus on who should be held responsible, but on providing compensation to those affected by the disaster.
 
“After compensation is received, the case will be closed and there will be no need to search for suspects,” he said in early August.
 
As University of Indonesia criminal law expert Rudy Satrio was quick to point out, Manan's premature statement could well affect the ongoing police investigation. According to Manan this stance must also be taken in the environmental pollution case involving US-based Newmont Mining Corp and the ongoing trial of a Newmont executive in Indonesia.

Former president Suharto's downfall eight years ago spawned high hopes that those who had acted with impunity for several years, growing rich on the back of the nation's resources, would finally be brought to account. But under successive administrations there has been an ongoing battle between those who advocate reform and transparency and the entrenched elite corruptors, many of them past cadres of the New Order regime ruling party Golkar.

In particular, reform of Indonesia's outdated, obscure Dutch colonial laws, including the criminal code, the civil act and commercial and bankruptcy acts, is recognized as critical for improved governance and the investment climate. Foreign investors and businesses continue to wait for tangible signs of progress like successful cases of implementation of the law and a degree of certainty in the decisions being handed down.  Although judicial and legal reform has been underway since 1999, the pace is regarded 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 legal system.
 
The World Bank has long called for "credible implementation actions" that signal decisive and demonstrable steps forward on the issues of judicial reform"  despite the fact that for years, the bank itself made loan transactions with Indonesia even  though officials were aware that much of the money would be diverted by corrupt elites.  A World Bank report in 2003 noted that many lawyers were "apparently often the conduits for bribes to judges, prosecutors and the police.”
 
Recently the government was asked to return some $4.6 million disbursed under World Bank loan agreements to partly pay for three consulting contracts entered into by the Ministry of Public Works. The Anti-Corruption Commission, which has prosecution powers, is investigating the allegations while government auditors are looking into the projects.
 
During Suharto's reign executive-branch interference with the courts through "presidential decrees" was standard practice. The dictator controlled the organizational structure, administration and financial affairs of all lower courts, including the promotion and rotation of judges in the Supreme Court itself through the Ministry of Justice.
 
Deputy Chief Justice Paulus Lotulung concedes there are too many loopholes in the interpretation of commercial law, thus "enabling other people to take advantage of the weak system." 

Yet, behind the headlines and the widespread negative perceptions of the legal system, legal and judicial reforms have been implemented, some significant.  For instance, a 1999 law on judicial reform, intended to re-establish the independence of the Supreme Court, handed the powers back over the executive, thus giving it a high degree of control over the future of judicial reform. Manan himself has gained some kudos for his part in the creation of a far-reaching blueprint to reform the Supreme Court although his words have been distinctly louder than his actions.

A constitutional amendment in November 2001 mandated the establishment of an independent Judicial Commission, which has the authority to select Supreme Court justices and monitor its performance, although the seven-member commission was not formed till August 2, 2005. Members are prohibited from holding government positions, including judgeships. Lawyers, notaries, civil servants and those holding a leadership position in any political party are also ineligible.
 
Anticorruption activists have slammed the Supreme Court for what they see as its strong resistance to internal judicial reforms being advocated by the Commission. Indonesia Corruption Watch (ICW) coordinator Teten Masduki said Manan's absence from a recent seminar marking the commission’s first anniversary was a "blatant signal of defiance against judicial reform.”
 
ICW notes that 142 defendants were exonerated in 77 corruption cases from 1999 to 2006. ICW reported the 133 judges who handled the cases to the Judicial Commission. The Supreme Court’s disciplinary committee, under Manan's control, exonerated most of the judges investigated for bribery allegations.
 
Completion of the far-reaching judicial reform needed for the developing democracy remains a distant goal. Standard practices in developed countries, like the transcription of court proceedings and reporting sizeable financial transactions, for example, have only recently been implemented in Indonesia. Court decisions and their justifications are not published, even those of the Supreme Court. Nor are there proper records of cases processed.
 
What modest reforms there have been apparently were too much for 40 Supreme Court justices, who have filed a request for the Constitutional Court to review the law in a bid to reduce the Judicial Commission's power. A request to Yudhoyono to broaden the commission’s powers by issuing a regulation in lieu of law also has been turned down. Judicial Commission chief Busyro Muqoddas said the government's refusal was an indication of its lack of support for judicial reform within the Supreme Court.
 
Increased salaries might attract more suitable candidates to the judiciary but would have little, if any, effect on corrupt individuals or the culture of corruption that permeates the system.

The Supreme Court is crucial to the system of democratic checks and balances but without a new man at the helm of the country’s top judicial institution, criticism of the courts is unlikely to end any time soon and Indonesia may be known as one of the most corrupt countries in the world for some time to come.

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