According to The Irrawaddy, the Hluttaw’s Judicial Affairs Committee Chairman Thura Aung Ko has revealed that the committee has received over 10,000 letters of complaints, 90% of which made allegations of corruption. Much of the corruption seems to have involved defendants bringing judges or court staff in order to win favorable outcomes. This is not too surprising given reports of corruption in the judiciary. What is not yet clear is the content of the cases, i.e. if they involve business or human rights disputes. In other words, who is affected most by judicial corruption in Myanmar? Does it have a disproportionate impact in certain types of cases? Hopefully, the committee will release a detailed report containing its full findings.
Category Archives: corruption
The Akil-gate scandal involving former Constitutional Court justice Akil Mochtar just became an order of magnitude more serious as the Financial Transaction Report and Analysis Center (PPATK) found US $8.9 (Rp. 100 billion) in wire transfers in Akil’s account. According to The Jakarta Post, there are now suspicions that Akil was engaged in money laundering and that corruption might have tainted many more elections cases. Meanwhile, Indonesia Corruption Watch is calling for a more exhaustive probe into Akil’s wealth.
What’s particularly worrying about all of these reservations is that it becomes much harder for the Constitutional Court as a whole to plausibly deny and knowledge of Akil’s activities. A single bribe can be hidden quite easily, but it appears that Akil’s activities likely generated a completely different lifestyle for the former chief justice. Why did his activities and behavior not raise suspicions earlier? I suspect Indonesians will increasingly be asking themselves those questions.
It’s no secret that Indonesia’s legislature, the DPR, takes a long time to pass laws. As such, in the wake of Akil Mochtar’s arrest three weeks ago, one could perhaps sympathize with President SBY’s latest attempt to impose stronger judicial ethics requirements on the Mahkamah Konstitusi by executive decree (perppu). The decree calls for an ethics council composed of members of the Judicial Commission and the MK. The decree would also prohibit anybody who had been a member of a political party during the previous 7 years from serving on the court.
However, the president’s executive decree powers are limited to responding to immediate crises – . A group of lawyers has challenged the constitutionality of the perppu before, ironically enough, the MK. According to The Jakarta Post, the lawyers have lined up the support of key stakeholders, including former chief justice Jimly Asshiddiqie and law professor Yusril Ihza Mahendra. Former chief justice Mahfud MD has also stated his opposition to the president’s plan, remarking that such a response would be necessary for nearly every government institution in Indonesia.
There are two key questions that will likely arise from this case. First, will the court exercise constitutional review over a presidential regulation? Technically, the MK’s constitutional jurisdiction covers statutes (undang-undang), not regulations. The Supreme Court does have jurisdiction over regulations but has hesitated to exercise that power. However, the legal grounds might be “fudged” here if the petitioners successfully argue that the president did indeed attempt to promulgate a statute through executive means.
Even if the petition passes the jurisdictional threshold, it is unclear if it would succeed on the merits. On the one hand, the MK knows it needs to institute some mechanism to enforce ethical duties on judges. On the other, the justices have formally stated that the Judicial Commission (KY) has no ability to enforce ethical rules on MK justices. In 2006, the MK stripped the KY of any power to enforce ethical requirements on Supreme Court justices (Case No. 005/PUU-IV/2006 ). In fact, the justices even went out of their way to clarify that the KY also had no power over MK justices, even though that part of their decision was obviously dicta. Last week, Deputy Chief Justice Hamdan Zoelva has already announced that the MK would proceed with its own plans to establish an ethics commission, without the KY’s involvement.
Because of the nature of this suit, because the petitioners are challenging a perppu and not undang-undang, it will be particularly difficult for the MK to do what it did in 2011, invalidating the DPR’s attempt to circumscribe the MK’s power to issue ultra petita verdicts. If the MK goes out of its way to invalidate a perppu, critics could portray it as being resistant to the need for reform and then propose even tougher measures. However, the perppu is clearly at odds with how the MK thinks it needs to respond to this crisis. Either way, I imagine this case will be expedited so we should know the verdict soon.
It’s pretty much given now that the Mahkamah Konstitusi will be subject to greater scrutiny in the wake of Akil Mochtar’s arrest. Now, according to The Jakarta Post, former chief justice Mahfud MD has opened a complaints center for former litigants who feel their cases were not decided fairly. The center does not seem to possess any legal status to overturn decisions or sanction judges, but it should at least help the court – and Mahfud – stay ahead of the controversy by demonstrating a commitment to transparency.
|Partly corrupt or corrupt impartiality?|
Well, after all of that drama, it turns out that the person who allegedly bribed Akil Mochtar won his case before the Constitutional Court after all. According to The Jakarta Post, the MK ruled that Gunung Mas Regent Hambit Bintih did not engage in systematic fraud during the election. Obviously, given the corruption charges against Akil, many will be suspicious of this outcome.
However, it wouldn’t be the first time a judge solicited money for a decision that he had already decided. Judges can abuse the information asymmetry that exists between the bench and the litigants to encourage parties engage in bidding to ensure their victory. (Nick Cheesman has written quite a bit about this type of corruption in Myanmar)
Or, as Sir Francis Bacon famously said, “I usually accept bribes from both sides so that tainted money can never influence my decision.”
According to The Jakarta Post, Akil Mochtar has resigned as chief justice of the Mahmakah Konstitusi. It is unclear if he has completely resigned from the court or just the chief justiceship, but the writing is on the wall.
Lembaga Survei Indonesia has some survey data about the toll Akil Mochtar’s arrest has taken on the MK’s reputation. While survey data about the MK are sparse, previously the court’s approval rating had been relatively high (even including the fact that many respondents reported not knowing enough to form a judgment). According to LSI’s most recent survey, only 28% of the public had faith in the MK and believed it still served as a bastion of the rule of law in Indonesia. What is perhaps more surprising is that almost all respondents had an opinion. 66.5% said they no longer look to the MK as bastion of law enforcement, meaning that only 5.5% of respondents reported not knowing enough to respond. The public is clearly aware of the scandal and paying attention.
President SBY meanwhile has proposed reforms to the appointment procedure for judges. While the MK justices might resist – not without reason – I suspect the political pressure on the justices will be too great. Back in 2011, the MK did invalidate legislation that would have circumscribed its jurisdiction, but the MK had very high levels of public trust back then and stakeholders amongst civil society who saw it as an example of good governance. With this most recent scandal, however, I worry the MK will find fewer allies on its side. As such, it is especially important for the president and DPR to consider any reforms carefully before attempting to force them on the court.
As if a bribery scandal were not enough, according to The Jakarta Globe the KPK now claims to have found marijuana and ecstasy in Akil Mochtar’s office in the Constitutional Court.
There are also more reactions, as Mahfud calls on Akil to resign and Indonesian Corruption Watch urges the KPK to widen its investigation to other allegations of corruption against Akil. President SBY said in a statement that the scandal is even more serious because it potentially means that some Constitutional Court decisions were wrongly decided, and given that decisions are final and binding they would interfere with the democratic process.