Q&A: Todung Mulya Lubis on judicial reform
August 25, 2015
The Indonesian justice sector embarked on a comprehensive program of reform after the end of the New Order in 1998. The “one roof” (satu atap) reforms that transferred the administrative responsibilities of the lower courts from the government to the Supreme Court and the establishment of the Constitutional Court and the Judicial Commission all represent significant progress. But the justice sector continues to face a range of intractable problems, such as systemic and institutionalised corruption, uneven capacity of judges, lawyers and prosecutors, and weak access to justice for poor and marginalised Indonesians. The judiciary consistently rates among the least trusted institutions in the country. Indonesia at Melbourne spoke to Professor Todung Mulya Lubis about the future of justice sector reform.
According to the World Bank’s Worldwide Governance Indicators, Indonesia ranks in the bottom 36 per cent of countries for rule of law. What should be the main priorities for judicial reform?
The judiciary should be prioritised for reform, immediately. It has been neglected for so many years. When the reform movement began back in 1998, one of the core objectives was to establish negara hukum, or rule of law. There has been progress, of course, but not enough. First, we don’t have a strong tradition of the rule of law. My impression is that countries that were colonised by the British – Malaysia, Singapore, India – have stronger traditions of rule of law. Countries colonised by the Dutch, don’t. That is something that we need to work on. Second, we must address corruption within the judiciary – not only the courts but also the prosecutors, lawyers and police. You cannot separate these aspects of the justice sector. The Supreme Court has not done enough. Yes, a number of judges have been caught, tried and sentenced but this has not deterred others from receiving bribes. Recruitment, remuneration, promotion, demotion, supervision and complaint mechanisms all need to be reformed. The third priority should be education of judges. I’m not suggesting that highly educated people are not corrupt but if you are recruiting people from second or third tier universities to become judges and prosecutors, they will see their position as an investment. Those who come from the best law schools don’t want to be judges anymore. All of them want to be lawyers. This is very discouraging.
The Prosecutor’s Office has been highly resistant to reform. Prosecutors have been found to consistently deliver light sentences for corruption crimes, for example. What needs to be done to promote reform in the Prosecutor’s Office?
I conducted a governance audit for the Prosecutor’s Office, which identified a number of weaknesses, similar to the weaknesses in the judiciary: recruitment, remuneration, promotion, demotion, external and internal control, and compliance mechanisms. We gave these recommendations to the Prosecutor’s Office but they were not followed up. Like it or not, reform ultimately comes down to the head of the agency. If the attorney general has the will and determination to reform the institution, he should be able to bring about change. Unfortunately at the moment we don’t have a strong or committed attorney general or chief justice. Instead of leading substantive, holistic and progressive reforms, they are happy to let reform tick along slowly.
You mentioned the importance of involving lawyers in reform. The legal profession has been characterised by division and infighting among professional associations.
Lawyers are neglected in discussions of judicial reform. They are seen as members of a private, independent profession, separate from the judiciary, Prosecutor’s Office and police. But lawyers are an integral part of justice management. If we don’t reform the lawyers, the bar associations, then we leave the door open for corrupt behaviour. In our annual Rule of Law Survey (Index Negara Hukum), business people were found to be the most likely to corrupt the system, followed by lawyers. PERADI (Indonesian Advocates Association), the bar association that was recognised as the sole bar association by the government, has now split into three. There are probably 10 bar associations now. I don’t think a single professional association could ever accommodate them all. But we could adopt a multi-bar system. We could set clearly defined requirements that would have to be met by all bar associations and then let them fight, let them compete. I suspect only a few bar associations will be able to meet the requirements. The most important thing is that lawyers have agreed standards for education, ethics compliance and professional practice.
The recently released list of candidates for the Judicial Commission appears strong. What hope is there for a stronger relationship between the Commission and the Supreme Court? Do you think improved scrutiny is important to improve the sector?
The list of candidates for the Commission is very strong – it is a good combination of incumbents and talented outsiders, including academics and practitioners. The Supreme Court, however, does not want to cooperate with the Judicial Commission and neither does the Constitutional Court. As you know, the Constitutional Court dismantled the power of the Judicial Commission to supervise and control judges in 2006. The important thing now is how it can regain that power. Without that power, the Commission cannot function properly, it is limited just to selecting judges for the Supreme Court. But the Supreme Court has even resisted this function of the Commission – it has not welcomed candidates who are not career judges. I see the control and supervision of judges as the most important function of the Judicial Commission. Before its power was dismantled by the Constitutional Court, many judges trembled, they were nervous. If we let the Judicial Commission scrutinise judges’ performance we would see results in 10-20 years. Judges would become very cautious. At the moment there is little respect for the Judicial Commission.
Indonesians generally do not use the courts to resolve disputes. In 2013, for example, the district courts saw 3,334,226 criminal cases, and just 142,196 civil cases. Why do you think this is the case? Is it a lack of trust, or lack of access?
It is a combination of these factors. There are three factors affecting lack of access. The first is cost. But when you talk about cost under a corrupt environment like this, you are not only talking about the official costs that must be paid and the cost of lawyers but also the unofficial costs. A second concern in terms of access is a lack of legal awareness. Of course Indonesians see the court system as an institution to resolve disputes, but how many? I think we need more legal education, especially in rural areas. Third is the perception among many Indonesian citizens that settlement outside the courts – through local communities, informal or religious leaders –is much more effective. The other issue is trust. People don’t trust the judiciary, they don’t trust the police, or prosecutors, or judges, or lawyers.
Do you think the 2011 Law on Legal Aid will be able to strengthen protection for suspects in police detention?
It should give them more protection. Through this new law, the government has allocated funds to legal aid, and legal aid offices accredited by the Ministry of Law and Human Rights can access these funds. We still don’t know to what extent legal aid lawyers will use these funds. A further question relates to whether police will bring more serious charges against suspects who have legal advisers present. This has happened in the past. Normally the police will advise a suspect to use certain lawyers (usually corrupt ones). If you don’t follow their recommendations, then you’ll be in trouble, they will make it difficult for you. The police force seems to be one of the strongest institutions in Indonesia at the moment. In its political disputes it has been very aggressive. The conflict between the police and the Corruption Eradication Commission (KPK) has already cost the KPK two of its commissioners. If the police can declare two KPK commissioners suspects on weak, obscure evidence, what about laypeople? Who can monitor the police in the regions? We may see a situation where some suspects refuse legal aid because of this risk.
The Jakarta High Court recently overturned the convictions of Jakarta International School teacher Neil Bantleman and teaching assistant Ferdinant Tjiong. Do you think the High Court was responding to diplomatic pressure? Do you know what went on behind the scenes?
I know there was a lot of lobbying done by the diplomatic community but to what extent this was effective, I cannot say. Yes, the High Court overturned the lower court’s decision. That is a good sign. But this is not the end. There may be a cassation appeal to the Supreme Court.
The Supreme Court rejected the cassation appeal of the five cleaners convicted on similar charges. What hope is there for justice for the cleaners?
I don’t know. Now we have to take public opinion into consideration. Public opinion can be a factor. The judges and the High Court are not immune from public opinion. Civil society is not united on this, you know. A lot of civil society organisations have condemned the case, so it is hard to predict. A very sensitive case.
How much does international pressure affect decisions in the court of first instance? Is it counterproductive? Could it have played a role in the guilty verdict?
I am not against international pressure. In some cases I have handled, we have asked for assistance from the international community. When I handled the case of Time magazine against Soeharto, there were amicus curiae, friends of the court, sent by a lot of international press organisations. When I handle commercial disputes, sometimes embassies try to express their concerns to the Indonesian authorities. I don’t think they are intervening in the independence of the judges. They want to make sure that the judges will be fair, impartial and just, they are not asking for special treatment. I can justify that. If the court functioned properly, if the law functioned properly, then we would not need that sort of thing. But in our system, where the court does not function properly, then sometimes you have to resort to that (diplomatic pressure). That is why it is difficult for me to explain to my counterparts from other countries why I have used the media. I told them it is simple, we just want to let the judges know that they are being watched. If we don’t do that then they will be free to do whatever they like.