Judicial Dysfunction in Indonesia, by Simon Butt ... The problems go right the way to the top ... Corruption ... Inadequate reasoning ... Bribes ... Intimidation ... Judicial mafia ... Cases under the microscope ... Reviewed by Braham Dabscheck
Indonesian Constitutional Court
Simon Butt is a Sydney University law academic who has devoted much of his career to researching and writing on the operation of the Indonesian legal system.
"The book is about judicial dysfunction in modern-day Indonesia. It focuses on problematic judicial reasoning, improper influence and flawed accountability mechanisms. It also seeks to uncover the nature of these deficiencies, to examine attempts made to address them and to expose consequences of their persistence."
He focuses on two major issues - corruption and poorly reasoned decisions. Corrupt judges who succumb to bribes will write judgments that do not make sense, leaving judges open to ridicule and a lack of confidence in their decision-making ability. Poorly reasoned decisions raise speculation that the cause might – or ‘must’ – be corruption.
To complicate the issue further, Butt also refers to examples of when judges have been subject to force and intimidation.
Several judges have been killed by dissatisfied litigants (in one case while the judge was reading out the decision), and one judge has been stabbed. Items have been thrown at judges during trials, and in one case an angry party released hundreds of cobras during a court session. More real is the threat to judicial independence and personal security posed by protests that take place outside courtrooms during high-profile cases.
He examines three high-profile cases where judges were seemingly intimidated in handing down their decisions.
In the first half-century of its independence (from 1945), Indonesia operated as a dictatorship. Especially during the period of President Soeharto’s New Order (1966–1998), courts were labelled instruments of the ‘national revolution’ and were required to do as they were told by the president. They were not independent and judges quickly worked out that their futures were dependent on fulfilling the needs of the government.
Courts were also starved of funds, and in this environment corruption flourished. Corruption was not confined to judges. It extended to all parts of the legal system, including court registrars, the police and prisons. There is an extensive literature in Indonesia devoted to the operation of a ‘judicial or legal mafia’. Following the fall of President Soeharto:
"... the Indonesian judiciary was in a parlous state, having been deprived of both independence and resources. This forced its judges to seek bribes not only to supplement meagre salaries but also to help meet the courts’ operational expenses. Some judges, court staff and others – including prosecutors, police and lawyers – began working together to extract bribes, even referring opportunities for corruption to each other."
Butt refers to examples of prisoners who paid bribes to avoid incarceration and for special favours. One prisoner was photographed while on a holiday at a tennis tournament in Bali, and another had a special room built with a bed ‘for the purpose of performing husband-wife body connections’. The room was rented out to fellow inmates with profits shared with prison officials.
Decisions of Indonesian courts are usually long, with detailed and repetitive information concerning the positions of the parties, expert reports, and other factual material associated with the case. Limited explanations are provided concerning the reasons for the decision.
Butt is particularly critical of decisions that do not explain why the court has ignored evidence and submissions of the parties. He also points out decisions are so poorly written that it is difficult to understand what they actually mean.
There are two major reasons for this. First, Indonesia inherited the civil law system of the Dutch rather than the common law approach that Australia (and other nations) inherited from the British. The former relies on statutes, where judges perform the role of ‘investigators’ in resolving disputes, aided by lawyers for the parties. Its approach is to apply relevant legislation.
Common law, on the other hand, is adversarial, with judges acting as ‘adjudicators’, developing and following legal principles in reaching their decisions and where precedent is important.
Second, Butt points out that in Indonesia, judges are involved in too many cases - there are simply not enough judges - which results in the rushed writing of poorly thought-out decisions. The problem here seems to be a lack of resources and appropriate training.
Following the end of the Soeharto era, reforms were introduced to improve the operation of Indonesia’s legal system. Three major innovations were the introduction of Anti-Corruption Courts (ACC), whose work would be aided by the appointment of ad-hoc judges, and a Constitutional Court.
ACCs were introduced in 2004 and have offices in the capitals of Indonesia’s 34 provinces. They consist of panels of three to five members, combining career and ad-hoc judges. The major rationale for the appointment of ad-hoc judges was that they would bring expertise to decision-making and, presumably, not being corrupt, would act as a counterweight to corrupt career judges.
The major problem has been finding suitably qualified ad-hoc judges. Butt points to the low standards required for appointment and associated problems with the infrastructure and operation of Indonesia’s legal system that discourage candidates from applying.
These problems include the level of remuneration, security and housing when (re)allocated to various provinces, and the problems this poses for families. There have also been problems with late payments, which makes appointees susceptible to bribery. Being in short supply, ad-hoc judges are overworked, which induces them to resign or not reapply when their terms come to an end.
Between 2010 and September 2021, 23,514 corruption cases were reported on the Supreme Court’s database. Butt points out that many of these decisions are not complete, with links leading to dead ends. Also, some decisions are removed for ‘privacy reasons’. Butt observes:
"This leads some to suspect that decisions that are controversial or involve politically connected figures might have been removed from the database."
Butt points out that from 1970 to 2010 only a handful of judges were convicted of corruption, and fewer imprisoned. Since 2010, 22 judges have been convicted of bribery, eight in standalone cases and 14 in joint cases (remember the panel system).
He provides an analysis of these cases and the way in which corruption works. The Indonesian Supreme Court can also adjudicate corruption cases on appeal. Butt is generally critical of the Supreme Court (he and other commentators believe it is corrupt) for providing light sentences for corrupt judges - ending their employment rather than imprisoning them.
The Constitutional Court was created in 2003. As its title suggests, its major function is to interpret the Indonesian Constitution. Constitutional interpretations are usually performed by a Supreme Court, however this was not a function that had been performed by the Indonesian Supreme Court prior to the post-Soeharto reforms.
Decisions of the Constitutional Court cannot be appealed. Butt sees its operation under its first two chief judges as a breath of fresh air for the Indonesian legal system.
Its operation was transparent with a relatively well-financed registry quickly publishing decisions, transcripts and other material associated with the legal process. The court encouraged debate between the parties and its members participated in extra-legal discussions and forums associated with the operation of the law.
Because the Constitutional Court makes decisions that may differ from those of the government, it provides more reasoning in its decisions than had been the practice in Indonesia. Butt is generally supportive of the court in this regard, but points to examples where better, more coherent explanations could have been provided.
In recent years, the stature of the Constitutional Court has been in decline. Two of its members have been convicted of corruption. Its third Chief Justice was convicted and sentenced to life imprisonment following proof of bribe-taking over a long period. Three other members were charged but not convicted.
More concerning is that one of the justices was removed after he handed down a decision not to the government’s liking.
To the extent that there is a broader lesson in the operation of the Constitutional Court, it is that the provision of similar logistic support to the registries of other courts and the inclusion of more detail concerning the basis on which decisions were made would help the operation of the Indonesian legal system.
Thought may also be given to the education of law students and the appointment of the more talented as judge-associates to aid judges with the writing of decisions, as a prelude to them being appointed to the judiciary themselves in the longer term.
In Judicial Dysfunction in Indonesia Simon Butt has provided a comprehensive and accessible account of the operation of Indonesia’s legal system. He clearly describes the functions of the various courts, the legislation that governs them, a myriad of decisions across a wide range of jurisdictions, and empirical research and commentaries on the operation of different courts.
He combines a sharp eye for detail and the oddball with a clear grasp of the broader dimensions of political and legal developments in Indonesia. For both students of Indonesia and the law more broadly, this is a more than valuable and interesting piece of scholarship.
Simon Butt, Judicial Dysfunction in Indonesia, Melbourne University Press 2023, PB 372pp, $40.00
Braham Dabscheck is a Senior Fellow at the Melbourne Law School at the University of Melbourne who writes on industrial relations, sport and other things.
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Originally published by Newtown Review of Books