Friday, September 21, 2007


We are Indonesian Corruptors
United in One Nation
The Nation who really love in doing corruption
We are Indonesian Corruptors
United in One Language
The language of Collusion
We are Indonesian Corruptors
United in One Country
The Country where corruption never end

(This oath was dedicated for all of corruptors in Indonesia whom made Indonesia become the most corrupt countries in the world and made the economy of the country bankrupt. This oath was adapted from The Indonesian Youth Oath 1928)

As if the corruptor’s oath above was really happened, no wonder that corruption has been done from years to years and then become a culture in bureaucracy. In fact the research institution in corruption - Political and Economic Risk Consultancy (PERC) – has reported in 1997 about corruption perception index in Asia, they reported that Indonesia was the most corrupt country in Asia. At the year of 2001 same institution has reported that Indonesia become the second most corrupt country in Asia after Vietnam . Another report in 2002 made by Transparency International entitled Corruption Perception Index revealed that Indonesia’s corruption rate ranked 96th of 102 countries surveyed . Now a day, corruption in Indonesia has become more horrible when many corruptions happened in judicial process. One of the most well known cases in judicial corruption is Harini Wijoso case; Anti Corruption Commission accused her for bribing Chief Supreme Justice. This position paper would discuss about judicial corruption in Indonesia and the effort of judicial reform to combat judicial corruption.

Judicial Corruption
Corruption has become an imminent threat that corrodes every crucial sector in Indonesia society. It is common for us to hear the people are often dissatisfied with the verdict ruled by the judicial institution. Public blamed this situation as result of corruption practice in judicial process- pre-investigation, investigation, prosecution and adjudication process in the court-, made by judicial officer in many stages of judicial process. Those practices commonly called by many law scientist and legal researcher as judicial corruption. International Bar Association has stated that judicial corruption was caused by indecent practices such as bribery, forgery, data or trial manipulation, robbing the judicial institution of its independence . Furthermore, Zou Keyuan has stated as below :
“Judicial corruption is manifested in the following respects: judicial local protection and departmental protection; adjudication in violation of statutory procedures or overdue adjudication; abuse of power to detain interested parties or lawyers or limit their personal freedom; abuse of judicial power to extort property, services, or collect fees at random; and breach of the law to protect private interests or protection of the interest of relatives or friends at the expenses of the interests of others.”

The explanation on judicial corruption as mentioned by Zou Keyuan, for some criteria such as violation on judicial procedure in order to adjudicate defendants, or abuse of power in judicial process, or asking for illegal fee and etcetera look similar as happened with judicial corruption patterns in Indonesia. The pattern in judicial corruption as mentioned by Indonesian Corruption Watch who conducted field research on corruption patterns in judicial process . This research has mentioned about many patterns that surrounded in judicial system. The modus in judicial corruption patterns are manipulated the material in judicial process by hiding some evidence in order to weaken the case, manipulated witness by adding new witness to make the case blur and man others. One of the indicators that judicial corruption happened in judicial process is low sentences in court decision or in prosecutor final examination.
Actors in judicial corruption are just like a network that incooperated between retired judges or prosecutor with their colleagues whom are still work in judicial process. Working relationship between “senior” and “junior” also take a special relationship in order to committed with judicial corruption, this term can be called as “corruption by connection”. In the past “senior” more likely to teach their “junior” to commited with corruption, this situation made corruption as a inheritage culture in their beuracracy. This situation made corruption is so hard to be eradicate. When corruption inherit al the times so that the beuracracy is always dirty bueracracy. Judicial corruption has created public distrust to the legal enforcement and disappointing the justice seekers as well.
Furthermore, Winarta stated that for businessman who have legal cases in the court more likely to reserve their company budget to be allocated for judges or prosecutors through their Advocates as a broker. This practice is just like common knowledge for local or expatriate businessmen when they want to win the case. This situation made one assumption when they choose the advocate, “…better choose advocate who ‘know’ the judges or prosecutors than choose the others who know more about the law…” Moreover, Justice Kirby –Justice in Australian High Court- stated that without giving a ‘tip’ might loose the file and a favorable decision may not be assured . Those assumptions made strong evidences about judicial corruption in Indonesia.
Judicial corruption as above-mentioned is an essential input for the growth of organized criminal groups who have capacity to pose International crime and made their crimes freely to be done. Because of those practices state organization or institution in law enforcement cannot function as a supplier of good service and justice deliverer for all of justice seekers, and law enforcement is only for the poor. Those conditions make greater public distrust to the judicial system, and then the uncertainty in law enforcement bring effect to the foreign investment. Foreign investor felt that doing business in law uncertainty means not enough protection and guarantee for their business that could running well.
Combating Judicial Corruption in Indonesia; The Annotation to the Implementation of Judicial Reform.
Combating Judicial Corruption in Indonesia is not an impossible mission, if the action to combat corruption followed with some improvement in judicial system. Improvements can be proposed are supervision system in judicial institution and the law in judicial mechanism i.e. Criminal Procedure law public, all of those must be subjected to the public participation in judicial system. The consideration about all of those proposals would be written below.

Supervision Mechanism
Combating Judicial Corruption in Judiciary related to the control by the internal oversight body and also from the public. It is also necessary to optimize the systemic internal control mechanism (such as pre trial, as well as the termination of the inquiry, investigation, and prosecution process) that has been regulated by the Criminal Procedure Code. The systemic supervision is subject to the principles of equality before the law, due process of law, speediness and simplicity, effectiveness and efficiency, accountability and transparency . In order to make a stronger, credible and accountable internal supervisory agency, there’s must be supported by the external supervisory agency. The existence of external supervisory agency also can decrease public distrust to the result of supervisory investigation that made by internal agency, because external supervisory agency have power to examine the result from internal supervisory agency and then give the final decision about that.
Nowadays, General Prosecutor Office (GPO) already has an internal supervisory agency under General Attorney (GA) and external supervisory agency called as Prosecutors Commission (Komisi Kejaksaan), the latest agency have to be responsible to the President. Beside those two institutions, GPO also has another supervisory unit call Prosecution Honorable Panel (Majelis Kehormatan Jaksa). This panel has a role to made decision for prosecutor -who break the ethics rule- an administrative sentence, such as giving a recommendation to GA for the prosecutor to get fired or does not get a promotion or giving a demotion.
All of those supervisory institution still prosecutor heavy because there are no someone who represent public as a member of those institutions. So that supervisory agency in GPO should be reform and give one or two bench for people who represent public or come from non prosecutor element, because public participation in external supervisory agency is the most important things in order to decrease public distrust. Rejecting public in their bench means that the supervisory agency more likely to protect their members, so that ‘in group feeling’ or esprit de’ corps is clearly what they want.
Another problem in supervision mechanism can be seen in judicial power –judicial power is Supreme Court and all of the court that is under supervision and coordination under the Supreme Court in Indonesia-. Even thought Supreme Court has supervisory agency in their structure, but this internal supervisory agency must have cooperation with Judicial Commission as an external supervisory agency. After Constitutional Court decision about dispute between Supreme Court and Judicial Commission, the supervision dispute between those two institutions still can not be resolved.
The main dispute between those institutions is about the implementation on provision in Constitution of The Republic of Indonesia article 24 B (1). The text below is the that provision;

“The Judicial Commission shall be independent in nature and have the competence to make proposals for the appointment of supreme justices as well as other competences within the framework of safeguarding and upholding the honor, the high status and the behavior of judges”

From the text we can see that provision is regulate about judicial commission competence as a part of judicial power in order to promote public accountability in judicial system and improve judicial independent. The main competence of judicial commission is very clear in order to propose the candidate for Supreme Justice in Supreme Court to People Representative Assembly (DPR). This provision mean that Judicial Commission has a role in order to formed new Supreme Court by selecting and appointing the supreme justice candidates that fitted with the criteria as mention in the law of Supreme Court. Candidates are selected from all over Indonesia, not only the candidates who have experiences as a judge in the court below Supreme Court but also candidates from public. With this mechanism, public also have a rights to send their comments or suggestion about particular candidate, or even if public have bad experiences with candidates and want to express about that and ask judicial commission do not recommended that candidates to DPR. It is the way to communicate between public trust to the candidate and judicial commission as an institution who select the candidate; it also can establish the public accountability to their competences.
Another judicial commission competence as a dispute between those institutions is about the competence as a guardian the honor, status and judges behaviors. Based on this provision the judicial commission considered that they also have a competence as a supervisory institution in judicial practice. The commission thought that supervised judicial practice is the mean of safeguarding and upholding the honor, status and behavior judges, because judges’ panel in the making of decision must behave their behavior and guarding their honor and status. So the Commission thought that in order to implement the provision, judges must make their decision in the framework of justice and their loyalty to the truth according to implement ‘…in the name of God…” as mentioned in the first sentence of their decisions. This provision must be implemented to all judges including supreme justice.
The commission standing about their thought can not met with the Supreme Court, because Supreme Court stated that this can not be implemented to all judges and supreme justice must be excluded from. Supreme Court also does not agree with the commission if the entered area of judicial practice, because it is the area of Supreme Court competence as the top of judicial procedure. This problem made them pursuit the dispute to the Constitutional Court, as a court to settle the disputes between two state institutions.
Another problem now comes according to the question about which institutions have a competence to regulate provisions about Judicial Code of Ethics and Code of Conduct? Both institutions now have their own regulation according to those provisions. This problem still has connection with the aforementioned dispute between them. Because the institutions that regulate the rule have competence to implement the regulation, this is according to the competence to give punishment for judges who broke the regulations.
All of those disputes must be settled according to guard in the framework of honor, status and judges behavior. And this framework has strong relationship with the effort to combat judicial corruption. The judicial reform has begun with the third amendment of the constitution, and this amendment has adding new institution as a part of judicial power independence –The Constitutional Court and The Judicial Commission-. So that cooperation and coordination between Supreme Court and Judicial Commission should be established, by establishing this hopefully it can be a good start for togetherness to combat judicial corruption. Those institutions should thinking about the benefits for the nations rather than the benefits for the corps.

Laws in The Judicial Mechanism
Combating judicial corruption must be an integrated action, not only the institution but also the laws through to their competence have to be reformed. The laws in the judicial mechanism are laws that provide legal basis for the judicial official to due their competence in order to enforce the law. One of the laws in judicial mechanism that have to be reformed is the law in criminal procedure (KUHAP). ICW on their research as abovementioned stated that judicial corruption patterns in all judicial institutions happened because KUHAP give a chance for judicial corruption . Another research from MaPPI-FHUI also proposed for KUHAP amendment, because of the lack of supervision mechanism in every phases of criminal adjudication and lack of transparency due to criminal adjudication .
Furthermore Buscaglia stated that lack of transparency in complexity of the procedural phases was one of factors that can enhance corrupt practices in judicial procedure . Even if the system and judicial official function properly, however, that is not enough to diminish the existence of systemic corruption in the application of the law. The law according to judicial mechanism that have to be reformed are administrative organization in judicial procedure, judicial official capability to the legal discretion in judicial procedure and judicial administration.
One of the administration organizations that should be reform are about case management. KUHAP does not mention about the authority of case management in every phase of criminal procedure. There are not obligations to the judicial official to manage their case effectively and efficiently. For instance, KUHAP does not mention about the time limit to settle the case in cassation phase, this bring effect that there are many cases in cassation process that can not be settle by supreme court. The weakness of case management can disturb judicial administration. The table below provides illustration upon handling case and decision in Supreme Court :

Cassation and Civil Request Case Record
That already registered and Decided by the Supreme Court within the period of 1997 – 2001

Year Registered Case Decided Case
Cassation CR Total Cassation CR Total
1 1997 5.259 837 6.096 5.884 1.063 6.947 Remaining case of year 1996
Appeal: 12.916
CK : 3.200
Total :16.116
2 1998 7.815 883 8.698 7.723 1.792 9.515
3 1999 6.958 850 7.808 9.780 969 10.749
4 2000 7.325 899 8.244 6.594 297 6.891
5 2001 5.740 884 6.624 4.208 404 4.612
Total 33.097 4.353 37.470 34.189 4.525 43.239 Case year 2001 Jan – Sept 2001

As aforementioned in the tables, it is clear that many cases in Supreme Court could not be solved and the number of the cases is increased year by year. If they cannot improve their case management, there are so many cases remain that need to be further handled in effective manner. Improving case management in every phase of judicial procedure urgently required the provision about the obligation to implement good governance principle in judicial process.
First good governance principle that should be implemented in judicial process is independent. This principle means that judicial institution in order to implement their judicial power must be free from other power, because if not independent judicial institutions more likely can not implementing their obligation well. Not only judicial institution but also judicial official must discharge their dependency or oppression from others power or official agency. Overall, the implementation of independent principle is not only independent in their institution but the officials who work in that institution.
Second principle is the presence of judicial rights according to implementing the human rights. The judicial rights are giving the guarantee to all persons having rights for advocacy, protection of freedom of speech in judicial forum in order to tell the truth and the freedom from any cruelty. Those are basic right in judicial right that should be implemented in the new law of judicial mechanism.
Third principle is accountability. This principle means that judicial process in order to implementing their power has to be accountable by the law, accountable for justice delivery and accountable to the public. Judicial official in implementing their power must be based on the law and regulation surrounded and must not destruct the justice. The accountability to the public means that every process and material must be accountable to the public, because judicial official must provide good service for public as an actor in public service sector.
The last principle is transparent. This means that public has an access to the judicial process in order to know about the progress or to promote public participation in monitoring the implementation their power. Overall, judicial institutions have to open their access to the public for all the work that has been done by their officials. This principle also means that the judicial institutions have to develop judicial information service that serve all information about the result or progress report of the cases.
Implementing all principles can diminishing the judicial corruption in judicial process and protecting the human rights in judicial system. The absence of corruption in judicial process can eliminate public distrust. The absence of corruption also means that the effort of enforcing the law has successfully done. The success in law enforcement means that there is a law certainty and then can attract foreign investment to came to Indonesia.

Closing Remark
Combating judicial corruption is not an impossible mission if the strategies to combat ‘the disease’ were systematic, synergic and supported by the entire stakeholder in judicial process. The judicial institution as an institution which carries out public service function has the responsibility to be accountable to public access. The optimum utilization of this function has been conducted by the court but still it hasn’t met the public needs and demands in general or at least for people who are involved in the judicial process. On the other hand, there is a high demand on public needs to interact and obtained important information from the court. Information on judicial procedures and other technical bureaucracy of the judicial mechanism is important for the people through their intellectual capacity level on the subject relatively low.
Creating public access in judicial process is very important for the public to know about the prosecution or adjudication result or progress report. The simple thing to think is the existence of information desk in every judicial institution that provides the public need about judicial information. The existence of information desk hopefully will improve court administration system and eventually eradicate the corrupt manners such as illegal payment in getting judicial information. In order to optimally the action take an advantage, legal foundation on the matter is necessary may be by regulate the principle of good governance in the law of judicial mechanism.
Hopefully this position paper can help the government, in order to make a policy to eradicate the judicial corruption and legislative drafting on criminal procedure law.

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