A few weeks ago, I’d mentioned that Palembang District Court Judge Daming Sanusi was criticized for having made an impolitic joke about rape during his “fit and proper test” before the DPR. Daming has since withdrawn his candidacy but the Judicial Commission has announced its desire for the Supreme Court to try him for ethics violations. According to The Jakarta Post, the Supreme Court has refused, stating that Daming has already issued a “sincere apology.”
The Commission is continuing its campaign, but, because of the Constitutional Court decision in 2006, it lacks the power to enforce ethics standards and prosecute judges itself. There are no constitutional issues at stake in the current dispute between the JC and SC thus far, but the dispute is important as a sign of whether and how Indonesia can deal with wayward judges. Given the public outrage over the incident, it’s possible the JC can mobilize public opinion on its behalf.
The Judicial Commission announced the results of its review of judicial profession, and its findings are not encouraging. According to The Jakarta Post, 70-80% of judges had not applied judicial procedures properly.
However, the report is a bit confusing in that is critiques judges for applying procedural rather than substantive justice standards. I heard similar complaints from colleagues in Indonesia, particularly when wealthy defendants received light punishments for large crimes and poor defendants were sentences harshly for trivial offenses. Still, it’s not clear how giving judges more discretion under a substantive justice standard ameliorates this problem. If anything, it might increase opportunities for corruption.
The KY also revealed that complaints fell from 1,710 in 2011 to 1,482 in 2012, and that more judges were being punished.
On Friday November 9, I was sworn in to the New York State Bar Association. It was the culmination of long years of study, tuition money, and procrastination. I’m not a practicing lawyer, so the symbolically the moment meant very little to me. But I was relieved to see that more disbarred lawyers in Myanmar are being reinstated. According to Irrawaddy, U Aung Thien, one of the NLD’s most prominent lawyers, was reinstated. At least 13 of the 24 other disbarred lawyers have also received their licenses, although Pho Phyu, an activist lawyer working on behalf of dispossessed farmers, has not. This is certainly a step in the right direction. Here’s hoping the government keeps to it.
A new The Jakarta Post
op-ed by Indonesian lawyer and legal reform advocate Frans H. Winarta highlights an under appreciated problem in Indonesia’s legal system: breaches of client confidentiality. Winarta cites examples of lawyers revealing information about their clients on talk shows or interviews, as well as lawyers who testify against former clients! Of course, such revelations damages the bond of trust between lawyer and client and makes effective legal representation more difficult.
Winarta suspects many lawyers believe they are helping law enforcement by informing the public about corruption suspects. Of course, this is a dilemma every law student faces – how to defend a client whom you think is guilty. In my law school days, professors advised simply not asking the client directly about his guilt, and rather focusing on matters that would help in his defense. Also, as Winarta points out, the state appoints lawyers who can focus on proving the defendant’s guilt.
However, I’m less convinced this is simply due to lack of education in legal ethics. Given the stigma attached to corruption in modern Indonesia, I wouldn’t be surprised if these lawyers might be scared that associating too closely with their defendants might damage their career. Being defense counsel in a tough case is seldom a glorious job, even in the U.S. where being a prosecutor is often seen as more prestigious and a pathway up the legal hierarchy. It might make sense for bar associations to ensure some rotation so that lawyers work on both defense and prosecution. The lawyers I’ve met who have worked on both sides seem to better appreciate the value of a zealous defense attorney in the pursuit of justice.