Corruption and the Judicial System

by :
Mardjono Reksodiputro
The Secretary of the Indonesian National Law Commission

The 3 (three) questions raised:

1. What are the main obstacles to eradicating corruption in the judicial system?
2. How effective are legislative measures already taken?
3. What are the highest priorities for reform?

Obstacles for eradication:

1. No consensus among the judiciary themselves:
1.1. the assumption that accepting "gifts" is proper, if given after the judgment;
1.2. "cultural transmission" from senior judges to junior judges;
1.3. justification: by reason of meager official salary and benefits.

2. No consensus among the legal profession:
2.1. the assumption that to be faithful to their client, they can do "anything" to
win the case;
2.2. indifference of other lawyers: "it is the rule of the game";
2.3. legitimization: only successful lawyers (dress, car, office) will attract big
clients.

3. No consensus within the executive branch of government:
3.1. judicial reform is not the top priority, economic recovery and alleviating
problems of the poor are on top of the agenda;
3.2. the assumption that creating "better" laws is the answer to the problem;
3.3. justification: judicial independence does not allow for "executive interference."

4. No consensus within the public:
4.1. very few of the general public have experience with the court;
4.2. for those who have, they want to win their cases at any cost (PN-PT-MA), even
the executive (a.o. Kedung Ombo case);
4.3. The media has no particular interest in reporting violations of judicial conduct.

Effectiveness of legislative measures:

1. The new law on eradicating corruption offenses is more directed to corruption in the civil service;

2. International Bar Association (IBA - 14 April 2000) definitions:
2.1. when any act or omission occurs which is calculated to, or does result in the
loss of impartiality of the judiciary;
2.2. whenever a judge or a court officer seeks or receives a benefit of any kind or
promise of a benefit of any kind in respect of an exercise of power or other
action (bribery, fraud, deliberate alteration of court records, etc.);
2.3. when instead of proceedings being determined on the basis of evidence and the
law, their outcome is affected by improper influences, inducements, pressures,
threats, or interference, directly or indirectly, from any quarter or for any
reason (a.o. promotional prospects);
2.4. deliberate delaying a matter before the courts in the interest of one of the
parties.

3. Technical complexity to prove that a corrupting act in fact affected the judicial
decision.

Highest priorities for reform

1. Build a consensus among judges, the legal profession, the executive and the public
that judicial corruption will not be tolerated, and use the media to send the signal;
2. Have a national legal and judicial reform program adapted by the cabinet,, on the
basis of the recommendations of the National Law Commission;
3. Have the Cabinet Secretary oversee the taking of all legal reform actions that requiren governmental action;
4. Establish a mechanism to make judicial appointments and promotions on integrity
and merit; the mechanism may take the form of an independent Judicial Commission
which will also receive complaints of judicial corruption and authorize and oversee
investigation into judicial corruption;
5. Make the Judicial Commission accountable to a legislative committee and make
arrangements for the protection of witnesses in judicial corruption cases.
6. Introduce a fully computerised system in support of the courts to provide inherent
transparency and to reduce the opportunities for procedural manipulations or delays.
Jakarta, 12 October 2000


Source: www.worldbank.org