|Don’t get caught…
The first rule of corruption is not to get caught. The star of Indonesia’s latest corruption scandal violated that primary rule. According to The Jakarta Globe, superlawyer Hotma Sitompul was caught handing Rp 100 million ($9,700) to a Supreme Court official. The bribe was allegedly in connection to the prosecution of police general Djoko Susilo.
I’m sure there will be a lot of commentary over the next few weeks expressing outrage. Much of that outrage is well deserved. However, it’s also important to take a moment and remember that many – if not most – Indonesian lawyers are not corrupt. I have met many lawyers who are embarrassed by these sorts of corruption scandals. Some of them have even sacrificed professional opportunities in order to avoid the taint of corruption. So, in the midst of outrage, it’s also important to remember those lawyers who fight the small, constant battles everyday to improve the country’s legal system.
UPDATE (7/30/13): Jakarta Globe has posted more details of the scandal, including reactions from the bar association (Peradi).
|No booze for you…
A week ago, the Indonesian Supreme Court struck down a presidential decree that had prevented local governments from banning the sale of alcohol. The Islamic Defenders Front (FPI) filed the initial challenge.
According to The Jakarta Post, FPI, know for its more hardline tactics, had also been involved in raiding nightclubs and stores that sold alcohol. It’s views on alcohol are probably in the minority in Indonesia. However, in the case FPI focused its argument on the fact that the presidential decree hampered local autonomy. In essence, FPI made a federalism argument.
The Supreme Court had had the power to review the constitutionality of administrative regulations even under the Suharto regime, but has rarely exercised it. This latest case is the first major decision in which the court exercised judicial review, and almost certainly the most significant in terms of setting limits on executive power. Is also significantly comes soon after the court received a new chief justice (M. Hatta Ali) and several new justices.
Time will tell if this decision signals a greater willingness to strike down administrative regulations.
To what extent is it permissible to violate legal principles in order to save the legal system? In the U.S., we’ve often had such debates when it comes to balancing human rights during wartime, from Lincoln’s suspension of habeas corpus during the Civil War to extradition during the War on Terror.
In Indonesia, legal scholars and activists are now considering whether the government should lower the presumption of innocence in order to facilitate the prosecution of corruption suspects. The Corruption Eradication Commission has used burden shifting to require corruption defendants to prove their innocence.
According to The Jakarta Post, some organizations, such as Indonesian Corruption Watch, have called for expanding the use of burden shifting in corruption trials in order to prosecute more corrupt officials. However, some human rights organizations have criticized the potential erosion of criminal procedural rights.
It’s an important debate and one fundamental to the rule of law. Successful legal systems tend to be able to resolve such debates and balance the needs of society with the long-term protections of the law. During my travels to Indonesia, I have seen other signs of this debate, including enthusiasm for the death penalty against persons convicted of corruption. I even saw bumper stickers advocating for the death penalty (see photo).
As important as it is to punish corruption, this could raise a problem if burden shifting were combined with the death penalty. It would put defendants least able to defend themselves at risk of the ultimate punishment.
According to The Jakarta Post, the Indonesian Judicial Commission has received new leadership. Suparman Marzuki, a lecturer at the Indonesia Islamic University in Yogyakarta, will replace current chairman Eman Suparman (no relation). What’s interesting is that Marzuki seems ready to push the commission into a more activist role. Marzuki, also a former rights activist, has vowed to crack down on rogue judges.
However, he might face opposition from his new deputy, former Supreme Court justice Abbas Said. Said was amongst the justices who successfully asked the Constitutional Court to strip the Commission of its enforcement powers.
I suspect the pairing of Marzuki and Said was meant to balance reformist and conservative tendencies. According to the Constitution, commission members are ultimately appointed by the president with DPR consent. However, leadership within the Judicial Commission is agreed upon by the 7 Commission members. Thus, the big question going forward is which camp has more support amongst the staff of the Judicial Commission.
Back in 2005, the Indonesian Constitutional Court ruled that Jakarta’s water privatization scheme did not violate Article 33 of the Constitution, which mandates that “land and water and natural resources… shall be controlled and shall be used for the greatest prosperity for the people” (see decision here; for more about water rights in Indonesia and the case, see this law review article).
However, some NGOs remain dissatisfied with the situation. Recently, the Coalition of Jakarta Residents Opposing Water Privatization (KMMSAJ) filed a lawsuit against city water operator PAM Jaya and its partners. According to The Jakarta Post, activists complain that the company charges excessive rates that price the poor out.
One interesting aspect to the case is that Jakarta Governor Joko “Jokowi” Widodo has already announced that he hopes to buy French company Suez Environment’s 51% share in one of the partners, Palyja. It will be interesting to see if his intention influences the court and the interaction between his administration and the litigants.