Thursday, March 1, 2012

Indonesian Supreme Court invalidates its own ethics code

Indonesia’s Supreme Court and Judicial Commission co-hosted a regional workshop on judicial integrity in late January, attended by senior judges from Southeast Asia and the South Pacific.

One issue discussed was the extent to which participating countries had adopted the Bangalore Principles of Judicial Conduct (2002), which outline widely accepted international standards of judicial independence, integrity and competence. At the event, Indonesian Supreme Court Chief Justice Harifin A. Tumpa announced that judicial ethics codes in Asian countries should be brought into line with the Bangalore Principles. He also stated that the Indonesian Judicial Code of Ethics and Guidelines for Judicial Behaviour (the ‘Code’) had already adopted the Principles.

The Supreme Court had itself prepared the Code in conjunction with the Judicial Commission, and Chief Justice Tumpa had endorsed it in April 2009.

But just two weeks before the workshop, a panel of five judges from Chief Justice Tumpa’s own Supreme Court had already decided to invalidate eight key sections of the Code, a decision announced on 9 February. Many of the invalidated sections appear to have been drawn from the Bangalore Principles. These principles prohibit judges from making mistakes in their decisions, disregarding facts that could disadvantage a party, otherwise favouring a party, and handling cases in which they have an interest. They also require judges to maintain and enhance their knowledge, skills and personal qualities; to respect the rights of parties; to understand and perform their tasks in accordance with the law so as to apply the law correctly; and to meet their administrative responsibilities.

The Court’s reasoning in this case was as follows. Indonesia’s Basic Judiciary Law (enacted in October 2009) requires that the Judicial Commission supervise the conduct of judges, but also prohibits the Commission from interfering in judges’ independence when hearing and deciding cases. The Supreme Court has long maintained that the Commission does precisely this whenever it seeks to question the correctness of judicial decisions (or ‘technical-judicial matters’, as the Court often puts it). The Court contends that if a judge knows that his or her decision will be scrutinised by an outsider, he or she might hand down a decision to appease the outsider rather than a decision based on the evidence, law and his or her conscience..

Following this logic, the Supreme Court has decided that the eight Code provisions allowed the Commission to move beyond the supervision of mere behaviour to second-guessing the ‘cognitive processes’ that lead to judicial decisions. It is difficult to see how requiring judges to avoid making mistakes and succumbing to bias, and requiring them to maintain their skills and perform their tasks in accordance with the law can possibly affect judges’ decision making. It is also difficult to reconcile the decision with the fact that the Supreme Court itself drafted and endorsed the Code — and that the same Basic Law at once provided the statutory basis for the Code and the grounds for its invalidity.

Observers of Indonesia’s judicial system will be familiar with decisions like this. It is part of a sustained campaign by the Supreme Court to keep judicial misconduct proceedings involving its own judges — and the 7000-odd judges it administers — in house. Many observers speculate that the Court’s resistance to external scrutiny is driven by a desire to minimise revelations about the high levels of judicial corruption in Indonesia, particularly within the Supreme Court itself. In this endeavour, the Supreme Court holds a major trump card: the Judicial Commission cannot take independent action against a judge for misconduct; it can only make recommendations to the Supreme Court. The Commission investigated almost 400 judges during 2005–10 and recommended that almost 100 of them be sanctioned. The Supreme Court moved to discharge only four, and many of the recommendations were simply ignored. The Court dismissed most of them as alleged ‘technical-judicial’ breaches, an area in which, according to the Court, the Commission lacks jurisdiction.

To its great credit, the Judicial Commission has not been content to stand mute, and has continued to complain to the Court about legally flawed judicial decisions. The Supreme Court has met this perceived recalcitrance with attempts to invalidate the very legal foundations for the Judicial Commission’s work. In 2006, for example, members of the Supreme Court challenged provisions of the 2004 Judicial Commission Law before the Constitutional Court. The latter held that, for reasons of judicial independence, the Judicial Commission cannot analyse judges’ decisions to assess whether judicial misconduct has occurred. But the Supreme Court has now moved a step further. The Court has not simply prohibited the Judicial Commission from monitoring breaches of the eight principles. Rather, it has removed these principles entirely so the Supreme Court itself cannot use them as bases for disciplinary action.

It seems clear the Judicial Commission can now only legally investigate judges’ out-of-court behaviour. This does not bode well for efforts to increase judicial standards in Indonesia. The Supreme Court consistently fares poorly in citizen-satisfaction surveys of government institutions and is often criticised for corruption and incompetence among its own judges and the judges it administers. It now seems even clearer that the Supreme Court will continue to resist reform until the judicial accountability system is overhauled. Perhaps it is time to recognise that, in countries where judicial standards of integrity and competence are low, judicial accountability should, at least in the short term, trump judicial independence.

By Simon Butt Senior Lecturer at the Centre for Asian and Pacific Law, University of Sydney.East Asia Forum

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