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US legal aid for
Indonesia
By 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outdated, obscure Dutch colonial laws, including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.
(Copyright 2005 Asia Times Online Ltd.
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