June 23, 2011 · 03:10

Maybe this is why?

Yesterday, I’d posted a report about new reforms (attacks?) on Indonesia’s Constitutional Court. Today, Mahkamah Konstitusi Chief Justice Mahfud M.D. made yet another very public and “politically incorrect” comment about the SBY administration. As reported by Jakarta Globe, he claimed:

The moral bankruptcy of the legal system is due to the static legal enforcement… The key is leadership. We often face the belief that the president shouldn’t be involved in law enforcement. But in my opinion, the president should be involved in law enforcement but not the court process. Law enforcement is, indeed, the president’s duty.

Basically, the judiciary is accusing SBY of a lack of leadership – harsh words from the Third branch.

Despite having just a five-year term, Chief Justice Mahfud has been quite outspoken and sometimes critical of the other branches of government. Some Indonesians seem to believe the House’s recent “reforms” to the Constitutional Court were a sort of retribution against an activist and outspoken court. On the other hand, if the House and president don’t like the chief justice, they only need to wait a few more years to replace him. How much of a role is personal politics playing? It’s always difficult to tell in these situations, but in Indonesia personal politics can never be entirely discounted.

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June 21, 2011 · 21:19

Indonesia’s Incredible Shrinking Constitutional Court(?)

Last week, murmurs came out of Indonesia that the House of Representatives had agreed on a bill that would significantly revise the powers and role of the Constitutional Court (Mahkamah Konstitusi). Now, Jakarta Globe reports that the House passed the bill.

Two things stand out. First, the House is warning the court not to go beyond its mandate. In particular, several representatives expressed concern that the Court sometimes “clarified” laws without expressly ruling them unconstitutional. This practice, which Simon Butt calls “conditional constitutionality,“had allowed the justices to make statements about the law’s constitutionality more broadly without finding unconstitutionality in the particular case at hand. Now the Court seems like it will be forced to rule one way or the other.

The second major change is that the Court’s role in overseeing and adjudicating elections disputes has been all but eliminated. Some legislators – perhaps not surprisingly – complained when the Court overturned elections results. Jakarta Globe mentioned the possibility of a new elections court, but so far I haven’t seen any more details on that.

The final major provision, nominally less controversial, requires all justices to possess at least a Masters in law and be between 47-65 years old when they join the bench.

Are these changes designed to weaken the Constitution Court? In a sense, it’s hard to escape that conclusion as the House bill will strip away much of the Court’s jurisdiction. However, I’d also heard criticism that the Constitutional Court had become bogged down in election cases. Of course, election cases are potentially the most dangerous to the political elite of an electoral democracy. Therefore, perhaps removing election cases to a separate court will permit smoother relations between the political elite and Constitutional Court? I can’t predict the future, but it’s that same logic which allows courts in some authoritarian regimes to survive – reduce the threat, and allow independence.

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Filed under constitutional review, indonesia, Mahkamah Konstitusi

June 20, 2011 · 03:19

Commit thyself to the Truth

What do you do if your judicial system is notoriously corrupt and lacks any semblance of independence? One option would be to engage in a massive overhaul of the judicial system, but this entails risks and, as Indonesia has demonstrated, can prove difficult. Another option is to blame the judges.
For several years now, Burmese political leaders have lectured judges on the need to rule in accordance to the law and avoid corruption. The implication in several of these speeches has been that many judges have lapsed and they need to reform their ways. Now, the new Chief Justice, U Tun Tun Oo, seems to be carrying forth the same message – if a bit less harshly. Here is an excerpt from a recent article in The New Light of Myanmar:

“All citizens will be under the protection of law to enjoy equal rights and the judicial pillar will be strengthened,” vowed Union Chief Justice U Tun Tun Oo at a meeting with judges, law officers and court staff at Yangon Region High Court here this morning.

The Union Chief Justice noted that judicial system stands to settle rows and conflicts among citizens, bringing about stability of the nation.

Righteousness, fairness, calmness and sobriety are strength of judiciary. Judges should be committed to truth and thus are to do away with corruption and bribery, pointed out the chief justice, urging them to safeguard the judicial system.

There are a few things to note. First, the chief justice did not say that all citizens will be under “the equal protection of the law,” although admittedly this could simply be a matter of translation. More significantly is his portrayal of the judiciary as settling conflicts among citizens. Nowhere does he mentioned conflicts between the state and the citizen. As I mention in my recent article about Myanmar’s new constitution, citizens do not have standing to bring suits directly before the Constitutional Tribunal. Thus, most claims between the citizens and state will have to be handled in the regular judiciary.

Finally, and perhaps most worryingly, Chief Justice U Tun Tun Oo made no mention of judicial independence. In the past, Burmese political leaders have claimed some role for judicial independence, but also stated that judges must cooperate “in harmony” with other branches. The constitution also takes that approach, saying the judiciary is independent so far as possible (a qualifier, but judicial independence is always a relative rather than absolute concept). Whether or not this omission is significant is hard to tell at this point. What I can say is that the chief justice’s speech does not represent a sharp break from the past.

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Filed under Burma, judicial independence, Myanmar

June 18, 2011 · 14:39

Thai tort

The New Mandala blog recently posted a book review of a very interesting new book, Tort, Custom, and Karma by David Engel and Jaruwan Engel. I haven’t read the book yet, but the basic argument seems to be that in rural Thailand the state legal system plays a minimal role in resolving personal injury disputes. They suspect that globalization and the process of atomization have distanced the state from the individual. 

I’ll write more once I read the book (I have it on my bookshelf). For now, my parting question would be whether the book simply explains northern Thailand or develops a theory applicable to many developing country contexts. Indeed, during my recent trip to Burma, many Burmese lawyers claimed that Burma was “unique” because people avoided the legal system. At the very least, Tort, Custom, and Karma shows that the disconnect between citizens and the law exists in a variety of contexts.

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June 17, 2011 · 04:07

The Lighter Side: Proving your innocence, Socrates-style

While not “funny,” this story provides a good example of the sometimes farcical nature of Indonesia’s criminal justice system. One of Indonesia’s most notorious human rights cases is the 2004 murder of human rights activist Munir aboard a Garuda Airlines flight. According to The Jakarta Post, Pollycarpus, the convicted murderer, has now offered to drive arsenic to prove his innocence.* In particular, he claims that he would drink the amount of arsenic that allegedly was used to kill Munir. Aside from the fact that this wouldn’t do much to prove his innocence (it would do nothing to demonstrate that he did not intend to kill Munir), the judges treated his proposal skeptically. My favorite response: “Not in here. You can do it somewhere else if you wish.” Somehow I doubt he’ll follow that advice.
* Obviously, Socrates drank hemlock as part of his punishment, not to prove his innocence. Nonetheless, I suspect Pollycarpus’ proposal was meant in a similarly defiant light.

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Filed under indonesia