[wanita-muslimah] An Independent (but Immoral?) Top Court

 

http://www.thejakartaglobe.com/opinion/an-independent-but-immoral-top-court/502120

An Independent (but Immoral?) Top Court
Simon Butt | March 03, 2012

Indonesia's Supreme Court and Judicial Commission co-hosted a regional workshop on judicial integrity in late January, attended by senior judges from Southeast Asia and the South Pacific. One issue discussed was the extent to which participating countries had adopted the Bangalore Principles of Judicial Conduct (2002), which outline widely accepted international standards of judicial independence, integrity and competence.

At the event, Indonesian Supreme Court Chief Justice Harifin A. Tumpa announced that judicial ethics codes in Asian countries should be brought into line with the Bangalore Principles. He also said the Indonesian Judicial Code of Ethics and Guidelines for Judicial Behavior (the "Code") has adopted these principles. The Supreme Court itself prepared the Code in conjunction with the Judicial Commission, and Harifin endorsed it in April 2009.

But just two weeks before the workshop, a panel of five judges from Harifin's own Supreme Court had actually decided to invalidate eight key sections of the Code, a decision announced on Feb. 9. Many of the invalidated sections appear to have been drawn from the Bangalore Principles, which prohibit judges from making mistakes in their decisions, disregarding facts that could disadvantage a party, otherwise favoring a party and handling cases in which they have an interest.

The principles also require judges to maintain and enhance their knowledge, skills and personal qualities; to respect the rights of parties; to understand and perform their tasks in accordance with the law so as to apply the law correctly; and to meet their administrative responsibilities.

The court's reasoning in this case was as follows: Indonesia's Basic Judiciary Law, enacted in October 2009, requires the Judicial Commission to supervise the conduct of judges, but it also prohibits the commission from interfering in judges' independence when they hear and decide cases. The Supreme Court has long maintained that the commission does precisely this — interferes — whenever it seeks to question the correctness of judicial decisions (or "technical-judicial matters," as the court often puts it).

It contends that if a judge knows that his or her decision will be scrutinized by an outsider, he or she might hand down a decision to appease the outsider rather than one based on the evidence, the law and his or her conscience.

Following this logic, the Supreme Court has decided that the eight Code provisions were allowing the commission to move beyond the supervision of mere behavior and to second-guess the "cognitive processes" that lead to judicial decisions. However, it is difficult to see how requiring judges to maintain their skills, to perform their tasks in accordance with the law and to avoid making mistakes or succumbing to bias can possibly affect their decision making.

The Supreme Court itself drafted and endorsed the Code — it is hard to reconcile how the same Basic Law that provided the Code's statutory basis has also created the grounds for its invalidity.

Observers of Indonesia's judicial system are familiar with decisions like this. It is part of a sustained campaign by the Supreme Court to maintain control over the judicial misconduct proceedings involving its own judges and the 7,000-odd judges it administers. Many observers speculate that the court's resistance to external scrutiny stems from its desire to minimize revelations about the high levels of judicial corruption in Indonesia, particularly within the Supreme Court itself.

In this endeavor, the Supreme Court holds a major trump card: the Judicial Commission cannot take independent action against a judge for misconduct, but can only make recommendations to the Supreme Court. The commission investigated almost 400 judges from 2005-10 and recommended that almost 100 of them be sanctioned, but the court moved to discharge only four and many of the recommendations were ignored. The court dismissed most of them as alleged "technical-judicial" breaches, an area in which, according to the court, the commission lacks jurisdiction.

To its great credit, the commission has not been content to stand mute and has continued to complain to the court about legally flawed judicial decisions.

The court has met this perceived recalcitrance with attempts to invalidate the very legal foundations for the commission's work.

In 2006, members of the court challenged provisions of the 2004 Judicial Commission Law before the Constitutional Court. The latter held that, for reasons of judicial independence, the commission cannot analyze judges' decisions to assess whether judicial misconduct has occurred.

But the Supreme Court has now moved a step further, not simply prohibiting the commission from monitoring breaches of the eight principles, but actually removing these principles so the court itself cannot use them as bases for disciplinary action.

The commission can now only legally investigate judges' out-of-court behavior, which does not bode well for efforts to improve judicial standards in Indonesia. The Supreme Court consistently fares poorly in citizen-satisfaction surveys of government institutions and is often criticized for corruption and incompetence.

It now seems even clearer that the court will continue to resist reform until the judicial accountability system is overhauled. Perhaps it is time to recognize that, in countries where judicial standards of integrity and competence are low, judicial accountability should, at least in the short term, trump judicial independence.

East Asia Forum

Simon Butt is a lecturer at the University of Sydney's Center for Asian and Pacific Law

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