Introduction

One of the pillars to secure and guarantee for the Rules of Law's implementation is the independence of judiciary. This concept of judicial independence is almost universally acknowledged, and in the Asia-Pacific region it has been adopted and strengthened in the Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region ("the Beijing Principles").

However, it must be kept in mind, that each nation or society has its own history, legal tradition, political system, culture, values and priorities, so that no one or single mechanism for maintaining an independent judiciary can be transplanted elsewhere without taking into consideration on those factors.

Two fundamental aspects of the Beijing Principles indicate that judicial independence means, as it is set out in Article 3 of the Beijing Principles which provides that the independence of the judiciary requires conditions that:

1)           The judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and

2)     The judiciary has jurisdiction, directly or by way of review, over all issues of justiciable nature.

Deriving from those two fundamental aspects, the Beijing Principles guide the subsequent provisions as principles to maintain the independence of judiciary, which is essential to the fulfillment of the judicial function and judicial performance.

The notion of independence of judiciary includes individual independence of the judge as well as institutional independence of the courts. Individual independence means the freedom for the judge from any interference either directly or indirectly within his/her duty or function, so that the maintenance of impartiality can be safeguarded.

That is why it is said that independence and impartiality are like the both sides of a coin. It would be difficult for a judge, even the most independent one, to perform his/her duties in an institution or court if this institution is unable or not permitted to be independent in relation to its judicial administration, including financial and human resources, as well as the Court's infrastructures.

Hence, the independence of mind and the absence of any internal and external interference in the judicial function as well as the administration of justice are central to judicial independence.

Efforts for Strengthening the Independence and Efficiency of the Judiciary

The implementation of the Rule of Law doctrine in relation to the good functioning of the judiciary requires certain conditions:

Public confidence or public trust on the independence and the impartiality of the judge and the court (both individual and institutional independence); Efficiency on the judicial administration to carry out the judicial function

The need for judicial independence does not mean that judges must be immune from any critics or controls. As a counter-balance of its independence there must be a judicial accountability or judicial responsibility for preventing the denial and miscarriage of justice. Mechanism of control should be developed by the judiciary itself and the society as a means of ensuring the accountability of judges. Judicial independence does not imply a lack of accountability, or in other words: "there is no freedom without responsibility".

So, it is necessarily of the greatest importance that the independence of judiciary and its accountability have to be maintained by strengthening the controls of the courts, both internally as well as externally. One of the means by which the independence, impartiality and accountability can be achieved is by encouraging the implementation of those controls to gain the public confidence in the administration of justice. In this relation, there is a need to consider and to issue the judicial ethics in the form of a Code of Ethics and Conduct for the judiciary and judges to ensure the accountability and impartiality of the judicial function. Indonesia is now preparing the Bill of Code of Ethics and Conduct for the judiciary which will be submitted to the Parliament.

External control on the conduct and behaviors of judges shall be exercised also by a special body, called the Judicial Commission, as it is stated by the Constitution, which is now also prepared to be submitted to the Parliament.

Besides the controls on judges and the functioning of the judicial powers, it should be noted that independence of the judiciary relates to the conditions of judicial service. Judges must be provided by adequate and secured remuneration and security of tenure, as well as promotion in the office. Without a guarantee of tenure and adequate remuneration for judges, there will be a fear to the detriment of a judge during the term of office and incites the potential litigants to exercise financial influence over the decision making process.

Another key aspect for strengthening the independence and efficiency of the judiciary is related to the resources and the financing of the works of the courts. There cannot be a total independence of the judiciary as long as the Executive branch exercises the control over the way in which the courts expend the funds and budget granted to them.

Ensuring the judicial independence should be achieved by providing for a guarantee of judicial autonomy with respect to the court's self-financing on budgets and staff (personnel). The measures of judicial independence relates to the extent of control by the judicial powers of the state over these areas of administrative services which include Man, Money and Material (3M).

It is in line with those idealism that Indonesia has marked as a milestone in the history of judiciary by adopting the Law Number 35 of the year 1999. This Law relates to the amendments of the Law Number 14 of the year 1970 on Substantive Provisions of the Judicial Powers. The said amendments implement one of the Legal Reforms in Indonesia, as it is stipulated in the Decree of People's Consultative Assembly of the Republic of Indonesia (MPR-RI) Number X/MPR/1998 on Substances of Developmental Reform in the Framework of Safeguard and Normalization of the National Life as the State Policy.

One of the most important considerations stipulated in the Law Number 35 of the year 1999 is that the Judicial Power is an independent power and therefore in order to ensure an independent judicial power which is free from the government power, it is considered necessary to make expressive separation between judicative function from the executive. It is the considered that the organization, administration, and financial management of judiciary bodies in each of Departments (Ministries) as referred to in Article 11 paragraph (1) of the Law Number 14 of the year 1970 on Substantive Provisions of the Judicial Powers needs to be adjusted to the situation advancement demands.

Some provisions in the Law Number 14 of the year 1970 are to be amended, and the most fundamentally important is Article 11 paragraph (1) which must be read as follows:

"Judiciary bodies as referred to in Article 10 paragraph (1) are organizationally, administratively, and financially under jurisdiction of the Supreme Court".

Article 11A paragraph (1) stipulates that:

"Transfer of organization, administration, and finance as referred to in Article 11 paragraph (1) shall be carried out gradually, within at the latest 5 (five) years as of this Law comes into effect".

This Law Number 35 of the year 1999 comes into effect on August 31 in the year 1999. Previously, the Law Number 14 of the year 1970stipulated in Article 11 that:

"(1) The Courts as referred to in Article 10, fall under the power of each Ministry concerned in the matters pertaining their organization, administration and finance.

(2) The Supreme Court has its special organization, administration and finance ".

It is to be noted that the judiciary in Indonesia is exercised by the Courts within the branches of:

a.   General Courts;
b.   Religious Courts;
c.   Military Courts; and
d.   Administrative Courts;

And the Supreme Court is the highest State Court.

So nowadays, the judiciary in Indonesia is still supervised by two hierarchical superiors, namely the Supreme Court concerning the technical-judicial matters, and the Ministry (Executive) concerning the matters of organization, administration and finance (the man in the street called it the "Two Roofs System"). But we are going and making the steps to the "One Roof System", which means that the Supreme Court will be the apex of the judicial powers including the organizational matters of the Courts, as well as the administration and finance.

The state's policy is to make the way for strengthening the independence and efficiency of judiciary in Indonesia.

However indeed, legislative steps as such are not sufficient and they mast be completed by other key issues to the fulfillment of the judicial functions, which are: transparency and access to the good administration of justice by publication of the Court's decisions.

Efficiency and effectiveness of judicial administration are the key factors to the independence of the judiciary.

Conclusion

Strengthening the independence and efficiency of the judiciary is a work of development so that it needs gradual steps which must be done consistently and constantly. These are the conditions for maintaining the public confidence in the impartiality of the Courts and judges. Without or loss of the public confidence the independence of the judiciary will be in question and can lead also to the lack of confidence by the investors, as well as the domestic and foreign businesses of any country. Such situation will translate into the withdrawal of investments and missed opportunities for the advancement of standards of living in each country.

Observed from this aspect, the benefits of independent and efficient judiciary are not only for the justice seekers but it must also be considered as one of the necessary components of a society and a precondition for its progress.

*This paper is made short in order to give a brief general description. Further floor discussions are much invited.

Sources:

1.                                  Paper: "The Independence of the Judiciary in the Asia - Pacific Region" By: The Hon. David K. Malcolm AC Cit WA, Chief Justice of Western Australia At: The 10 Conference of Chief Justices of Asia and Pacific 31 August - 5 September 2003 in Tokyo.

2.                                  Paper: "The Role of the Judiciary and Judicial Independence in a Changing Society" By: The Hon. David K. Malcolm AC Cit WA, Chief Justice of Western Australia At: Symposium on Judicial Independence 6 August 2003 in Manila.

3.                                  Paper: "Judicial Independence and Judicial Corruption" By: The Hon. Robert D. Nicholson, Justice of the Federal Court of Australia At: The 10^th Conference of Chief Justices of Asia and Pacific 1 September 2003 in Tokyo.