Category Archives: judicial commission

Rushing towards reform? (Indonesia)

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.

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Filed under corruption, indonesia, judicial commission, judicial reform, Mahfud, Mahkamah Konstitusi, SBY

Fox in the Henhouse? New Judicial Commission appointees (Indonesia)

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.

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Filed under indonesia, judicial commission

JC vs. SC redux (Indonesia)

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.

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Filed under ethics, indonesia, judicial commission, judicial reform

Failing judges (Indonesia)

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.

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Filed under ethics, indonesia, judicial commission, judicial reform, legal profession

Light on drugs (Indonesia)

Yet another horror story from Indonesia’s judicial system! Justice Ahmad Yamani was fired from the Supreme Court after it was revealed that he conspired with the court registrar to reduce the sentence of a convicted drug trafficker from 15 ears imprisonment to 12.

The Judicial Commission (KY) is now investigating the other two justices who sat on the panel with Yamani, Justices Imron Anwari and Nyak Pha. According to The Jakarta Post, Yamani testified that the reduction in sentence occurred at the instruction of Justice Imron.

While money laundering expert Yenti Ganarsih hopes that the Corruption Eradication Commission can investigate the case in order to uncover the “judicial mafia” that plagues Indonesia’s court system. However, the same The Jakarta Post article also mentions concerns for worry about the political leadership’s commitment to combatting narcotics trafficking. President Yudhoyono has granted clemencies for several drug convicts, suggesting a larger trend.

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Filed under indonesia, judicial commission, narcotics, Supreme Court