Access to Justice in Indonesia

Special Note on Indonesia’s Transitional Era and Corruption

By Maruarar Siahaan[1]

INTRODUCTION

The wind of democratization blowing across Indonesia, culminating in the ousting of President Soeharto on May 21, 1998, has brought Indonesia to a historical juncture: the era of transition to democracy.  In the literature on democracy, a transitional era is a starting point or interval between an authoritarian regime and a democratic regime.  The transition begins with the collapse of an authoritarian regime, followed by the installation of new political institutions and regulations under a democratic framework[2].

The main characteristic of a transitional era is the uncertainty of the process of change that is taking place[3].  It is not known for sure whether the process of change will result in the arrival of democracy, restoration of authoritarian regime, or ongoing chaos.  This is because a transition to democracy is not instantaneous, rather, it is complex and must undergo a long and winding process[4].  However, countries undergoing political change and entering a transitional period chiefly desire to reach the last stage of this journey, which is to achieve consolidated democracy.  According to Larry Diamond[5], consolidated democracy is a phase when democratic practices achieve a state of stability and persistence.  According to Juan J. Linz and Alfred Stepan[6], consolidated democracy is a political state where all components in the country respect democratic practices (laws, procedures and institutions) as the only game in town.

One of the efforts to reduce uncertainties in a transitional era, as well as to facilitate consolidated democracy, is to conduct constitutional reform.  Linz and Stepan affirm that without a constitution, normal democratic politics cannot function[7].  A constitution that has been doubted from the start by most of society, by political forces and key social groups, cannot support consolidated democracy.  In the case of Indonesia in the transitional era, the Indonesian constitution (the 1945 Constitution of the Republic of Indonesia) has suffered de-legitimation in society because it is seen as not supporting the existence of a democratic political environment.  Thus, during the transitional era in Indonesia, demands for constitutional reform have been frequently voiced.

The constitution is the main column of the state because it is the highest body of law which acts as the principal guidelines.  The kind of constitution formulated determines whether a country will become democratic.  If the constitution contains democratic constitutionalism principles, the constitution can be referred to as a democratic constitution and the state will be democratic, and vice versa.  Therefore, it is natural for any country undergoing a transitional era to focus its attention on constitutional reform.  This has happened in the Philippines, Thailand and Spain, to name but a few, when the wind of democratization spread across these countries.  Therefore, constitutional reform is essentially an effort to crush the authoritarian framework of the past regime and erect a consolidated democracy framework in its place.

In this paper, I will explain the development of ‘access to justice’ in Indonesia from the start of the transitional era by focusing on the constitutional reform that has recently taken place here.  Constitutional reform in Indonesia is one of the efforts to guarantee and expand access to justice.  Apart from constitutional reform, other efforts have also been made to guarantee and expand access to justice in Indonesia since the start of the transition era.  However, this paper is not the place to summarize all the developments here in respect of access to justice.  Therefore, in my capacity as a Justice of the Constitutional Court of the Republic of Indonesia, whose main duty is to be the guardian of the constitution and the sole interpreter of the constitution, the scope of this paper shall be limited to access to justice in Indonesia within the context of constitutional reform.

Basically, efforts toward access to justice have been conducted in Indonesia since the 1970’s, based on the doctrinal influence of Human Rights as mandated by the Penal Code amendment in 1981.  Access to justice is defined as legal aid for those who are unable to pay, taking the form either of a budget to pay the minimum fee for lawyers registered with and appointed by the Court to defend financially disadvantaged people, based on the requirement under the Penal Code that a person being prosecuted for crimes punishable by at least 5 years’ imprisonment must be assisted by legal counsel, or else aid and Legal Aid Institutes established by NGOs.

In a further development, after the reform movement had ousted Soeharto in 1998, there were demands that access to justice should include the full spectrum of politics and ideologies in both law and democracy.  Constitutional reform was then formulated to give members of society the opportunity to request reviews of laws containing policies deemed to be unfair, violations of human rights or contrary to the Constitution. 

DISCUSSION 

Legal Substance

The amendment of the 1945 Constitution has had a huge impact on the state.  This amendment was intended to foster the principles of a democratic rule of law state (democratische rechtstaat) and constitutional democracy. The aspirations for a rule of law state as a principle founded in the 1945 Constitution only covered the basic principles.  To apply these principles in state and national governance, they must be elaborated in the form of legislative products that pertain to the concept of an independent and impartial judicial body as well as other principles.  Societal opinion holds that much of the present legislation cannot settle old problems of corruption and criminal acts related to human rights violations by the incumbent power, whether because the sanctions are too light or for other reasons, and that new laws are needed to eradicate corruption and to establish a Human Rights Court, since the old corruption laws are not tough enough.  Adjustments to these constitutional reforms are also the logical basis for amendments of the legislation under the constitution.   

The 512-day Habibie Administration[8] tried to restore the power of law from law as a tool used by the ruler to strengthen executive power under the new order regime to become law as the basis for developing good governance, for democratization and for the protection of human rights.  There were 67 legislative enactments during the Habibie Administration, ranging from laws that promoted economic growth, eradication of corruption, law enforcement, respect for and protection of law, to laws that protected social groups (women, laborers and consumers).  However, the ability of the Habibie Administration to produce legislative tools was not accompanied by the ability to restore societal trust in the law and law enforcers.[9]

Habibie’s replacement as President, Abdurahman Wahid[10], tried to pay great attention to efforts at judicial rectification.  However, during his 21 months in office, Abdurahman Wahid could not improve the poor image of law in the eyes of society.  During this period, cases of corruption, collusion and nepotism (CCN) and human rights abuses were not resolved successfully and he later became pre-occupied with the political conflict between the People’s Representative Assembly (DPR) and the office of President.[11]

In the three years and three months of President Megawati’s leadership[12], she succeeded in establishing various institutions such as the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK) and a Special Court for Corruption Crimes (Pengadilan Khusus Tipikor), and achieved a “one roof” judicial system through various amendments of the laws on Judicial Power, the Supreme Court, General Justice, and so on.  However, Megawati was unable to satisfy the people’s demand for supremacy of law in cases of CCN and human rights violations[13].

Structuring of Institutions and the Establishment of New Institutions

        Not only was substantive law expanded or produced, whether by the reform of existing legislation to deal with the new circumstances and demands in the spirit of reform, or through truly new legislation.  New institutions were also established, either as adjustments or to bring in a new spirit, to achieve better handling of legal matters.  But theoretical reasoning must be put aside in this regard.  Many of the new institutions were called commissions, while others were called bodies.  Some were organs intended to settle disputes outside of the court, while others were bodies that became part of the criminal justice system.  And some were given a role in the external supervision of certain institutions whose internal supervision had been judged to be inadequate.

Ineffective Supervision  

The public had complained at the limited actions by law enforcers (judges, prosecutors and police) who had acted dishonorably while performing their duties.  Of the 1062 reports from the public on prosecutors and prosecutors’ office employees (up to December 2004), only 321 (33.1%) were responded to.  Of this 33.1%, only 30% were found guilty (Report of the Attorney General of the Republic of Indonesia on the Consolidated Work Meeting of Commissions II and III of DPR RI). The public had no access to the process or results, even where there were successful convictions.

A recent Kompas survey on the image of law enforcers shows there is still a need for serious reform.  The survey results (Kompas, April 4, 2005) showed that the public’s view of judges was that 61.2% were bad and only 27.8% were good.  As for prosecutors, 54.4% were bad while 35.9% were good.  A majority of respondents declared that the police were bad while only 25.6% considered them good.  It can be concluded that the public are still very disappointed with the performance of law enforcers (Attachment 1).

The present supervisory systems and mechanisms of law enforcement bodies, such as the Vice Chairman for Supervision (Ketua Muda Bidang Pengawas – Tuadawas) at the Supreme Court and the Deputy Attorney General for Supervision (Jaksa Agung Muda Bidang Pengawasan – Jamwas) at the Attorney’s General Office, are full of weaknesses caused by (1) the poor integrity and quality of supervisors; (2) the lack of access for justice seekers to the process and results of supervision, due to a lack of transparency; (3) an overwhelming esprit de corps; and (4) the low level of political will of law enforcement leaders to respond to recommendations from internal supervisors.  These various weaknesses can be overcome through various solutions, such as the amendment of the supervisor recruitment system (which would engender pride in the people selected as supervisors), the creation of a transparent supervisory process, and the establishment of an Honorary Council to overcome esprit de corps.[14]

Even though efforts to bolster the internal supervisory system in law enforcement institutions are a must, we also need to accelerate efforts to fix these institutions and introduce an external supervisory system (institutional fix).  This external supervision has now been established by the Government and the DPR in the shape of the Judicial Commission (KY)[15], the National Police Commission (KKN)[16] and the Attorney General Commission (KK). These commissions were established under Law No. 21/2004 on Judicial Commission, Presidential Decree No. 17 of 2004 on the National Police Commission and Presidential Decree No. 18 of 2004 on the Attorney General Commission, respectively.[17]

The establishment of supervisory commissions is an important shortcut to overcome the weaknesses of the internal supervisory commissions.  However, external supervision would become more effective if the selection process for the commission members were able to recruit qualified and high-integrity figures acceptable to the public.  Therefore, a closed and exclusive selection process can no longer be used.  Another important factor is Government support for the functions of these supervisory commissions, including financial support.

Other than these three commissions, Indonesia also has various other commissions.  One such commission is the Truth and Reconciliation Commission (TRC), which was established by Law No. 27 of 2004 as an independent and extra-judicial institution to uncover the truth of Gross Violations of Human Rights and Crimes Against Humanity, as stipulated by Law No. 26 of 2000 on the Human Rights Court, and to conduct reconciliation.  Reconciliation is defined as a result of disclosure of the truth, confessions and pardons through the TRC in order to settle gross violations of human rights and achieve national peace and unity.

Another is the National Ombudsman Commission, which is intended to create or develop, with public support, conducive conditions for eradicating CCN practices, and to enhance protection of social rights to create better general, justice and welfare services.  The National Ombudsman Commission, which was formed by Presidential Decree No. 44 of 2000, is neither a judicial body nor a settlement body.  This commission is tasked with clarifying whether violations may have been conducted by an institution, and then making its recommendation.

It is a concern that these commissions were not established based on an integrated concept of an ideal system of governance.  Consequently, there is an overlap with other institutions.  These commissions often lack a clear scope of duties and lack firm authority with enforcement power, meaning that the result of their work does not satisfy reform demands.[18]  We need to restructure all these commissions in order to define the boundaries of their respective authorities.  This will allow coordination to maximize the performance of each commission.  Moreover, with the high number of commissions, as well as the ever-changing Administrations that established and then often forgot about them, they have become a big financial burden, and may even compete with the existing bureaucracy.  The list in Attachment III of this paper shows the size of the financial burden of this new bureaucracy.  As of May 30, 2005, Indonesia had 40 commissions/committees/bodies with a supervisory function, either as part of the judicial system or as an administrative authority of the President.

It has also been suggested that the large number of commissions established during the reform era is due to the high level of public distrust in the existing state institutions, which have not functioned properly to support the reform agenda.  This appears to be the basic reason for establishing an independent Constitutional Court separate from the Supreme Court, although this is not explicitly stated.   However, we cannot set aside the theoretical reasoning underlying the decision to create this legislation.  By way of illustration, let us take a look at the considerations of Law No. 30 of 2002, which established the Corruption Eradication Commission, which state: “… the eradication of criminal acts of corruption occurring to date has not been able to be implemented optimally.  Therefore, eradication of criminal acts of corruption must be developed professionally, intensively and continuously, because corruption has damaged state finances and the economy and has obstructed national development”.  And “… the state institution authorized to handle criminal acts of corruption has not functioned effectively and efficiently in eradicating criminal acts of corruption”.  Based on these considerations, “… it is necessary to establish an independent Commission for the Eradication of Criminal Acts of Corruption with the duty and authority to eradicate criminal acts of corruption”.[19]

However, based on a Kompas survey conducted on April 26-27, 2005 and a review of the performance of these new commissions since their establishment, they do not seem to have regained public trust.  People doubt that these quasi-state institutions will be able to properly supervise state governance or take action against corrupt practices within the government bureaucracy.  Changes in the legal structure have also occurred in certain judicial branches of the general justice environment, such as the establishment of a Fisheries Court, Commercial Court, Human Rights Court (ad hoc), Industrial Relations Court, Criminal Acts of Corruption Court, and Tax Court (which, based on a Constitutional Court decree, is not permitted give a second opinion on actions taken and is not within the same system as the Supreme Court).  Judges have also been made independent and no longer fall under executive authority as a result of this structural reorganization.

Although the Corruption Eradication Commission (KPK) should be applauded for its handling of the National Election Commission (KPU) corruption case, and has the full support of the Government, the public at large are still somewhat hesitant.  However, based on media coverage of the latest developments, following the arrest in mid-May of the KPU Chairman as the person suspected to have ordered the collection of tactical funds at the KPU, public opinion has become more positive toward the KPK.[20]

From the above discussion, we can see that in practice, the way to ensure a proper legal structure is to have greater and broader public access to justice in dispute settlement and lawsuits faced by society.  But these institutions do not automatically become effective, intensive and accessible.  For the settlement of existing and future legal matters, changing the legal substance and legal structure does not offer the desired solution.  These changes are only a partial solution to the problems and not the deciding factor.  There are other factors that are tied closely to human nature and attitudes, values and beliefs, personal reactions to legal precedents, societal and family relationships.  Prof. Dr. Satjipto Raharjo, SH has stated that “the legal attitude and practice of a nation are too great to be boxed into articles of law.  A law can say such and such, whereas attitudes show something else.  In the end, the picture of our legal condition can be seen from legal attitudes, not legislation”.[21]

Cultural Aspects of Indonesian Legal System

From the above description of the legal substance and legal structure of the Indonesian legal system, while access to justice is being provided so that the public can take up their cases and complaints for fair, fast and uncomplicated treatment in line with the existing legislation in Indonesia, the reality still speaks otherwise.  This is not only due to the failure of legal education programs such as “Kadarkum” and “Kelompencapir”, which were run by the Government (especially the New Order administration) and used a one-way, “top down” approach, full of social obligations of the people, oriented to build loyalty among the people for laws that were not actually fair to them.  Thus, there was a lack of knowledge of the correct law as well as an attitude that law was a complicated process.

It has been stated that a person is the entity that moves and operates the norms and institutions.  Law also does not exist in an empty space.  Institutions, legal norms and people as the legal apparatus all exist in the social context to regulate society, interacting dynamically with one another.  The legal apparatus, as part of society, upholds certain values, aspirations and hopes under certain economic conditions.  All this will create a culture that influences people in the particular society.  However, Daniel Lev asserts that there is no relationship between law and culture.  He actually states that law depends on the world and on the political power of a nation.  Law is not an autonomous entity.[22] Indeed it is not.  As asserted by Professor Sutjipto Raharjo, if “we start from the basic reasoning that a legal institution is always embedded in a certain social structure, there will be variables other than politics that can influence the autonomous nature of law”.[23]

Law enforcement in many areas is heavily dependent on the attitudes and actions of law enforcers, who often see who the victims and perpetrators are, and on how close they are to the cases, witnesses, victims and perpetrators; only their objectivity will make them capable of enforcing the law.  In reality, the role of culture is very strong.  If the perpetrators are respected people, there will be tireless efforts to avoid any law enforcement that implicates them.  The same applies if the perpetrators are people with great influence and power.  This causes society, especially the victims, to lose trust in law enforcers and law enforcement.  Judicial awareness in society will become judicial culture, since law enforcers have set the example that all legal disputes in society must be settled by dispute settlement institutions, thus building societal trust that this is the best course, and that law enforcers are able to do this. 

The formulation of a judicial culture in the form of obedience to law in order to create law enforcement that gives the public access to justice must first be pioneered by state organizers, who have the power to formulate, implement and enforce the law.   Through lawful conduct by state organizers, who are able to set an example and influence cultural attitudes, judicial awareness in the society, respect and compliance with the law will grow, and this in turn can create a culture that supports the settlement of all disputes and conflicts using legal mechanisms and not renegade actions.  This kind of judicial culture is founded in the presence of a high level of trust in law enforcers, and a belief that conflict settlement will give legal certainty and justice, thus maintaining or restoring pride, human rights and property.  Failure to create a culture of legal settlement among state organizers will result in a failure to guarantee access to justice for the public, which will cause distrust in the state’s ability to protect society or its citizens.

‘Special Law Problems’ and Access to Justice

In addition to the various dimensions of legal problems and access to justice, the biggest problem faced nowadays is corruption, which has crippled law enforcers.  Corruption has even become a part of the culture, causing weak law enforcement.  As stated by one writer:

”Corruption has been a latent virus to Indonesia, eating away at the social institutions, spreading through all levels and state institutions. So widespread is this crime that some have even asserted that it has become institutionalized,  and might be a part of culture”.[24]

            In law, the existence of judicial corruption worsens the condition.  The partial and transparent administrative pattern of justice, combined with the authority to make decisions and the complicated court procedures, permits “side income” for judges and law administrators when rendering their services.[25]  This pattern is prevalent worldwide, in spite of the human rights principle that judges should be competent, independent and impartial.

“The international principles of human rights may promise that the judge shall be competent, independent and impartial.  But in many countries, especially in the lower judiciary, corruption is sadly a way of life.  Insidiously, it has invaded the judicial seat.  It has intruded into court registries.  Without a "tip", a file may be lost and will never make its way to a hearing.  Without a bribe, a favorable decision may not be assured.”[26]

Moreover, corruption practices occur due to:

(1) internal organizational roles concentrated in the hands of a few decision makers within the court (e.g., judges concentrating a larger number of administrative and jurisdictional roles within their domain); (2) the number and complexity of the procedural steps coupled with a lack of procedural transparency followed within the courts; (3) great uncertainty related to the prevailing doctrines, laws, and regulations (e.g., increasing inconsistencies in the application of jurisprudence by the courts due to, among other factors, the lack of a legal database and defective information systems within the courts); (4) few alternative sources of dispute resolution; and, finally, (5) the presence of organized crime groups (e.g., drug cartels).[27]

This condition causes loss of trust in judicial entities, in turn extending to state entities.  However, while there may appear to have been no progress despite the existence of a political commitment, there is still hope.  The progress of the KPK is giving grounds for renewed optimism.

            From the policy perspective, efforts to eradicate corruption can be seen in both macro and micro policy.  Notes made by Buscaglia and Maria Dakolias on the results of World Bank research in 1999 should to be used as a reference:

“International experience shows that specific macro policy actions are associated with the reduction in the perceived corruption in countries ranging from Uganda to Singapore, from Hong Kong to Chile (Kaufmann 1994). These actions include lowering tariffs and other trade barriers; unifying market exchange and interest rates; eliminating enterprise subsidies; minimizing enterprise regulation, licensing requirements, and other barriers to market entry; privatizing while demonopolizing government assets; enhancing transparency in the enforcement of banking, auditing, and accounting standards; and improving tax and budget administration. Other institutional reforms that hamper corrupt practices include civil service reform, legal and judicial reforms, and the strengthening and expansion of civil and political liberties. Finally, there are the micro organizational reforms, such as improving administrative procedures to avoid discretionary decision making and the duplication of functions, while introducing performance standards for all employees (related to time and production); determining salaries on the basis of performance standards; reducing the degree of organizational power of each individual in an organization; reducing procedural complexity; and making norms, internal rules, and laws well known among officials and users.”[28]

RECOMMENDATIONS AND CLOSING

Law enforcers are aware of the need to design legal reform comprehensively and in unison, by asking all state institutions having legal jurisdiction to formulate a mutual action agenda.  This has previously been tried by each institution.  However, in Indonesian Law Summit III, all law enforcement and judicial institutions were involved, along with societal figures.  Each legal institution heard the suggestions and recommendations of other institutions as well as the public through NGOs concerned with legal affairs.  Law Summit III, which was attended by all leaders of legal enforcement and judicial institutions and was held on April 16, 2004 in Jakarta, made it clear that efforts to eradicate corruption will not bring positive results without improvements to the system and legal restoration as preventive efforts.  Law Summit III issued a “Memorandum of Agreement of the Leaders of Law Enforcement Institutions in Restoration of Law and Improvement of Judicial System’, an agreement that formulated the following seven strategic steps for system improvement and judicial improvement:

1. To improve the Case Procedure Management System which guarantees public access.
2. To develop a transparent and accountable supervisory system.
3. To develop a transparent human resource system that promotes professionalism.
4. To develop a transparent and accountable budgeting/financial system.
5. To enhance coordination and cooperation that guarantees the effectiveness of legal enforcement.
6. To strengthen institutions to create organization establishment, which is a prerequisite to performance enhancement. 
7. Restitution of legal materials.[29]

I agree with the details of this integrated program, where the development and establishment of professional standards, a code of ethics and a code of conduct for law enforcers can be used to measure professional digression, allowing though action to be taken.  However, this must be accompanied by restitution of legal materials, namely the Penal Code.  And to enforce the Penal Code, there must be a concept of an integrated judicial system in order to guarantee inter-institutional relationships, and to ensure that authority resides in a single system of checks and balances.  More intensive public participation is both expected and unavoidable, thus a law on freedom to obtain information, a law on witness protection and regulations on more widespread legal aid must all be conceived.  However, it must be understood that all these actions are only part of the comprehensive restoration of law. 

Ultimately, based on theory and the experience of Indonesia, the availability of a legal substance and structure in law enforcement giving an opportunity for public access to justice is not the only factor that guarantees access to justice.  Certain variables will also influence its application.  These factors may be both cultural and political in nature.  However, the solution to this problem must be an effort to integrate all law enforcement institutions through public participation.  Programs on supervision, development of human resources, transparency of information and a witness protection law are a must.  However, all of these must be conducted under strong and good leadership from each law enforcement institution, as well as state leadership that demonstrates a strong and consistent commitment, that sees law enforcement and the guarantee of public access to justice as a political interest that must be maintained in a constitutional democracy where there is democratic rule of law (democratische rechtstaat). 

Bibliography

Georg Sorensen, 1993, Democracy and Democratization: Process and Prospect in a Changing World (Boulder, Colorado: Westview Press).

Guillermo O’Donnell and Phillippe Schmitter, 1986, Transitions From Authoritarian Rule: Tentative Conclusions About Uncertain Democracies (Baltimore: The Johns Hopkins University Press).

Juan J. Linz and Alfred Stepan, 1996, Problems of Democratic Transition and Consolidation Southern Europe, South America, and Post-Communist Europe (Baltimore and London: The Johns Hopkins University Press).

Larry Diamond, Developing Democracy Toward Consolidation, 1999, (Baltimore and London: The Johns Hopkins University Press).

Juan J. Linz dan Alfred Stepan, Defining and Drafting Democratic Transition Constitutions and Consolidation, R. Wilian Liddle (ed), 2001, Crafting Indonesia Democracy (Bandung; Mizan)