According to the 2008 Public Sector Integrity Survey conducted by the Indonesian Corruption Eradication Commission, among other public services in Indonesia, the Supreme Court’s integrity value have ranked among the lowest, which translates that the public sees the Supreme Court as one of the corrupt institutions in the country. The fact that the public does not see the Supreme Court as the harbinger of justice, and instead perceives it as a part of the rule of law problem, provides a serious challenge to good governance in Indonesia. In a country where it has been under an authoritarian regime for more than three decades, this essay will assert that such regime have deliberately weakened the Supreme Court, which led to its inability in providing professional judicial services and subsequently led to its systemic corruption. This essay will also argue how Indonesia’s transition to democracy have helped to shape its legal reform process.
Judicial Corruption as a Governance Challenge
Buscaglia defines judicial corruption as the use of public authority for the private benefit of court personnel when this use undermines the rules and procedures to be applied in the provision of court services. He further classify judicial corruption into two types, (i) administrative corruption, which occurs when court administrative employees violate formal or informal administrative procedures for their private benefit; and (ii) operational corruption, which usually involves politically-motivated court rulings and/or undue changes of venue where judges stand to gain economically and career-wise as a result of their corrupt act.
Corruption in general, without a doubt, have been both a cause and effect of poor governance throughout the world. Judicial corruption, on the other hand, is even more harmful because the judiciary, which is hoped to be the last resort for seeking punitive treatments against corruption, is in fact a part of the vicious cycle. A dysfunctional legal and judicial system is indeed a problem because it cannot become a backstop for efforts to make the government more transparent and accountable to its citizens. Operational judicial corruption, as Buscaglia pointed out, normally involve substantive irregularities which affects judicial decision making. These irregularities, have in turn decreased the public’s confidence in the courts. If this happens–and in the case of Indonesia, it did–it is hard to ensure that the society will abide by the rules that govern them. Moreover, it will be hard to prevent the use of crime and violence as means to resolve conflicts, because the formal measures to do so are inept. As a result, judicial corruption has become a primary challenge for good governance, especially in Indonesia.
Guided Democracy and New Order
Prior to its 1945 declaration of independence, Indonesia was under the Dutch and Japanese colonial rule. Anderson describes that it was Soekarno, which was then the chairman of the Committee for the Preparation of Indonesian Independence, who was “elected” to the novel office of the President. During the four years of the Revolution period (1945-1949), there were really two states functioning in the archipelago–the burgeoning Republic and the remnants of the Netherlands Indies. It was only until 1950 that Indonesia gained full independence, free to govern themselves through a parliamentary system of government mandated by the 1950 Constitution.
The representative democracy system in Indonesia was short-lived until the late 1950s, in which by the version of the Indonesian official history, was due to the failure of the Konstituante (the Constitutional Assembly) to arrive at a new constitution. This prompted Soekarno, with the coalition of the army high command, to reassert control over the political process, return to force the 1945 Constitution and introduced Guided Democracy. A misleading use of the term democracy, Soekarno’s idea of Guided Democracy was more of a personal authoritarianism, him being the leader and being “democratic” by incorporating the voices of other political and social forces he had mashed together–the nationalist, Islamic and communist groups–only to support his personal rule.
Soekarno’s tenure lived up until 1966, following the Supersemar decree on 11 March 1966 that transferred his power and authority to Soeharto, a Lieutenant General of the army at the time. Soon after, in 1968 Soeharto was formally appointed by the People’s Consultative Assembly as President, which marks the start of New Order and Indonesia’s new brand of authoritarianism. The early phase of Soeharto’s New Order was supported by his military-technocratic base, but in its development, Soeharto’s family and cronies started to penetrate into the various political, bureaucratic, and economic institutions in Indonesia, which led to an institutional corrosion of the state and ultimately led to their weak capacity and inability in dealing with many governance challenges, such as the 1997 Asian Financial Crisis. After 32 years of oppression and continuous decline of legitimacy, the amount of pressure for Soeharto to step down was at its peak and he finally resigned in 1998.
Post-Soeharto and up until today, Indonesia have witnessed three general elections, two of which are direct presidential elections and since 2005, hundreds of direct elections for regional heads of government. Although many scholars such as Davidson question whether present-day Indonesia has yet consolidated its democracy, it is important to highlight the regime of two post-independence leaders of Indonesia that used their executive power excessively and eliminated other forces of the state, which led to a poor system of checks and balances that is explained below.
The Subjugation of the Supreme Court
Pompe, Daniel Lev and Lindsey, gave an examination of how the executive achieved control over Indonesia’s judiciary, during Soekarno’s Guided Democracy and Soeharto’s New Order. In the period of Guided Democracy, Soekarno issued a Law on Judicial Powers in 1964, which marks the start of the subjugation of the Supreme Court under the executive’s agenda. Soekarno, with his pseudo-socialist ideology, views judges as “an instrument of the revolution” and explicitly mentioned that the President have the right to interfere with the judicial process in achieving a socialist-society of Indonesia. Soekarno intentionally abolished the separation of powers doctrine, and as Daniel Lev Points out, under Guided Democracy the courts caused Soekarno some irritation, because judges and private lawyers did not support his regime enthusiastically. Judges who refused to obey the executive’s orders were subject to physical violence by the military and public threats by government officials.
Although more subtle and less explicit in their interference, the cooptation of the courts under the executive during New Order was through 1) manipulation of the appointment process to the Supreme Court, and 2) controlling the lower courts through exploitation of the lower court judge’s positions within institutional hierarchies. The president, with the help of a weakened and co-opted parliament, have managed to establish a system of selecting a list of judges favoured by the executive to protect any political interests supporting the government in cases appearing before the Supreme Court. Structurally, the various judicature in Indonesia–the general courts, Syariah court, military court, and administrative courts–are under the technical supervision of the Supreme Court, but under Soekarno’s regime and up to Soeharto’s New Order, they have put the organizational, administrative and financial authority of the courts under the power of the executive, under the Department of Justice, Department of Religious Affairs and Department of Defence. By doing so, lower court judges was part of the civil service, and as Pompe elaborated, this gave the executive ultimate control over decisions related to the careers of lower court judges, which, in turn, meant power to reward judges who obeyed the executive’s wishes and to punish those who did not.
Declining Professionalism of the Judiciary
By the end of the New Order, corruption was endemic in the lower courts and patronage systems were apparent amongst lower court judges and their various bosses in the Department of Justice, other departments of the executive, court of appeals and the Supreme Court themselves. In such systems, political interference has become such a critical factor in the erosion of the lawmaking powers of the Supreme Court. From this practice of judicial corruption, lower court judges were required not only to obey the will of the executive, but also to hand over a piece of the pie from their plunder of the state to their bosses. In return, judges with their corrupt rent-seeking behaviour received promotions and transfers based not from their professional quality, but based on whether they have served the interests of the regime.
Political interference also affected the quality of the decisions that the judges make, which affected the quality of jurisprudence as a source of law in Indonesia. Pompe’s study explained, access to court decisions were a problem, because only a tiny percentage of decisions were published: in 1990, only 58, or about 0.6 percent, of approximately 8,000 decided cases. Apart from a lack of financial resources, Pompe associates that these small numbers were due to a general discretion among Indonesia’s judges to expose their decisions to public scrutiny since they might likely contain evidence of corruption, collusion, and/or general incompetence.
Transition to Democracy, Hopes for Legal Reform
After Soeharto’s fall, many efforts were undertaken to reform the legal and judicial system in Indonesia. Among the first steps taken for reform were to amend the Law on Judicial Powers to strip all organizational, administration and financing authority from the Department of Justice and transfer it to the Supreme Court, making a clear distinction over executive and judicial powers. The government also raised judicial salaries, increased budgetary allocation for the courts, and nominated non-career pro-reform judges to the Supreme Court, which gave the opportunity to increase openness and transparency despite resistance from the existing career judges. These judges were open for dialogue with pro-reform groups, NGOs, the media, donors and academics that resulted in the development of judicial reform blueprints. Such dialogue would not have happened under the authoritarian regime, where relations with the state and society is limited.
One of the breakthrough for reforms was the issuance of a Court decree on access to information in the judicature in 2007, that allowed the public to access general information such as official court fees, court schedules, and access to court decisions, ranging from drugs to corruption cases which are now being published online regularly–19.000 and counting–through the Supreme Court’s website. Efforts for transparency and accountability in the courts such as these are needed in order to give a check on their powers, with the aim to curb judicial corruption, either in administrative or operational terms.
The transition to democracy after long decades of authoritarianism have opened up the spaces for legal reform and institutional building of the judiciary, but as democracy has not yet been fully consolidated, the process for reform will still be a road full of obstacles. Under democracy, powers are no longer under the full control of the executive, but distributed to the legislative and the judiciary. Although the institutional building of the judiciary will take a long time, it is important to invest time and capacity for the process, precisely because a democratic regime will not work without the support of proper institutionalization of the rule of law. Thus, eliminating judicial corruption, which is explained in this essay as a pervasive problem in Indonesia, is pertinent in achieving good governance for the state.
By: Fika Fawzia
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Republic of Indonesia, Law Number 19 Year 1964 on Judicial Powers.
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 Three public service units under the Supreme Court, namely the Central Jakarta Court, the North Jakarta Court, and West Jakarta Court have all measured below 5 (the average integrity value of all the public service units being sampled in the survey). Komisi Pemberantasan Korupsi, Integritas Sektor Publik Indonesia Tahun 2008: Fakta Korupsi dalam Layanan Publik, (Jakarta: Direktorat Penelitian dan Pengembangan Komisi Pemberatasan Korupsi, 2009), pg 10.
 Edgardo Buscaglia, “An analysis of judicial corruption and its causes: An objective governing-based approach”, International Review of Law and Economics, 21 (2001) 233-249.
 Susan Rose-Ackerman, “The Challenge of Poor Governance and Corruption”, Copenhagen Consensus Challenge Paper, 2004.
 Brown emphasizes that the serious dimensions of the problem of corporate corruption and cronyism are entangled in the various institutions in Indonesia, and the legal infrastructure, the judiciary, and the courts, are not an exception. Rajeswary Ampalavanar Brown, “Indonesian Corporations, Cronyism, and Corruption”, Modern Asian Studies, 40, 4 (2006) pp. 953-992.
 Benedict R. O’G. Anderson, “Old State, New Society: Indonesia’s New Order in Comparative Historical Perspective”, The Journal of Asian Studies, Vol. 42, No. 3 (May 1982), pp. 477-496.
 The 1950 Constitution also provided a number of safeguards against the misuse of power by putting in place a system of checks and balances for political institutions and by making the military subordinate to the nation’s civilian leadership. Adam Schwarz, A Nation in Waiting: Indonesia in the 1990s, (Sydney: Allen & Unwin, 1994).
 Ibid., pp 16-18.
 Ross H. McLeod, “Institutionalized Public Sector Corruption: A Legacy of the Soeharto Franchise,” Working Papers in Trade and Development, Working Paper No. 2010/02, (Canberra: Australian National University, 2010), <http://ideas.repec.org/p/pas/papers/2010-02.html>;
 Jamie S. Davidson, “Dilemmas of democratic consolidation in Indonesia”, The Pacific Review, Vol. 22 No. 3 (July 2009): 294-95.
 Republic of Indonesia, Law Number 19 Year 1964 on Judicial Powers, Article 3, 19 and 20.
 Daniel S. Lev, “Judicial Authority and the Struggle for an Indonesia Rechstaat,”Law and Society Review 13 (1978): 49.
 Sebastiaan Pompe, The Indonesian Supreme Court: A Study of Institutional Collapse, (New York: Cornell University, 2005), pp.54-56.
 Ibid.,; Simon Butt, “Surat Sakti: The decline of the authority of judicial decisions in Indonesia,”in Tim Lindsey, ed., Indonesia: Law and Society, 2nd ed., (Sydney: The Federation Press, 2008): pp. 346; Stuart Gross, “Review: Sebastiaan Pompe, the Indonesian Supreme Court: A Study of Institutional Collapse,” The American Journal of Comparative Law, Vol. 53 No. 4 (Fall, 2005), pp. 950
 For example, the appointment of Seno Adji and three other non-judicial recruits, all army generals to support the government in the MALARI case, the anti-Japanese riots in 15 January 1974. Pompe, op. cit., pp 354-55
 Gross, op. cit.
 Pompe, op. cit., pp. 124-125.
 Ibid., pp. 436-41; Gross, op. cit., pp. 956.
 This process was firstly done during Habibie’s presidential rule in 1998, but the government officially transferred its powers to the Supreme Court in April 2004.
 Tim Lindsey and Mas Achmad Santosa, “The trajectory of law reform in Indonesia: A short overview of legal systems and change in Indonesia,”in Lindsey, ed., Indonesia: Law and Society, 2nd ed., (Sydney: The Federation Press, 2008): pp.. 15.
 See Supreme Court Decree No. 144/KMA/SK/VIII/2007 on Access to Information in the Judicature.
 HukumOnline, “MA Berbagi Kisah Keterbukaan Informasi Pengadilan di Konferensi Internasional,” Friday, 29 October 2010, <http://www.hukumonline.com/berita/baca/lt4ccaeaf4a9579/ma-berbagi-kisah-keterbukaan-informasi-pengadilan-di-konferensi-internasional>