by Coalition of Judiciary Monitors (KPP)
The current Chief Justice, Prof. Dr. M. Hatta Ali, will turn 70 years old on Tuesday, 7 April 2020, and thus will officially enter retirement age as a Justice of the Supreme Court and the Chief Justice. The new Chief Justice will be elected by 48 Supreme Court Justices on Monday, April 6, 2020.
We could argue that currently the Supreme Court is the most reformist compared to the other law enforcement institutions. Under the leadership of M. Hatta Ali, the Supreme Court could be declared as the best and most transparent institution. The evidences of the reform are, among others, the case tracking information system (SIPP), the electronic case administration and trial (E-Litigation) system, and the online complaints admission system (SIWAS). Moreover, the Supreme Court also evidently paid attention in expanding public’s access to justice, especially for the vulnerable groups. This could be seen through the enactment of Guidelines for the Implementation of Diversion in the Juvenile Criminal System through the Supreme Court Regulation (Perma) No. 4 Year 2014; Procedure of small claim court through the Supreme Court Regulations (Perma) No. 2 Year 2015 as amended with Perma No. 4 Year 2019; Guidelines for Examining Cases of Women in Conflict of the Law (Perma No. 3 Year 2017); and finally, Guidelines for Examining the Application on Marriage Dispensation (Perma No. 5 Year 2019).
However, all abovementioned do not mean that the current situation of court management is problem-free. The Coalition’s observation of the current judiciary situation shows that Hatta Ali will leave a considerable amount of chores for his successor before the people of Indonesia could finally enjoy the services of an independent and competent judicial.
First, illegal levies are still prevalent within the court. In 2019, the Supreme Court Supervisory Body’s Illegal Levies Task Force (Saber Pungli) succeeded in carrying out sting operation (OTT) against the Registrar of Jepara District Court and the Civil Deputy Registrar of Wonosobo District Court who then were disciplined. Not to mention the other illegal levies that occurred in court and experienced by justice seekers and their lawyers. Second, there were judicial officials who were caught red-handedly for receiving bribes. Under the leadership of Hatta Ali, especially in the second term, several sting operations have been conducted against: Judge of Balikpapan District Court (2019), Ad Hoc Anti-Corruption Judge of Medan District Court (2018), Judge of Tangerang District Court (2018), Substitute Registrar of Tangerang District Court (2018), Chair of Manado High Court (2017), Ad Hoc Anti-Corruption Judge of Bengkulu District Court (2017), Substitute Registrar of Anti-Corruption Court in Bengkulu District Court (2017), and Substitute Registrar of South Jakarta District Court (2017). Third, the standard of simple justice services has not been fulfilled, taking as an example: the period of time needed to provide copy of judgment are still prolonged and took more than 14 days in contrary to what is provided by the laws, has often impeded the litigants from submitting further legal action. Additionally, trials were often delayed for hours, not in accordance with the time stated in the summons. Fourth, the quality of considerations made by Judges/Justices are still far from adequate with relatively high disparity. Fifth, rights of the parties are often neglected during examination and case handling processes, especially in criminal cases. For example, the right to attain legal aid, the protection from torture during investigation, the right to obtain translators, the right to health services, etc.
Most of these problems are fundamental yet often occurred during the judicial proceeding in courts. Therefore, it is quite astounding that those problems could not be solved within eight years of Hatta Ali’s leadership.
The Coalition noted that the roots of the aforementioned problems are as follow:
- The process of promotion and mutation for strategic positions are not thoroughly reflecting the values of integrity and anti-corruption
- The easiest indicator is to see the suitability between the wealth profile of strategic officials in the Supreme Court and their sources of incomes. The Coalition recognizes that the Supreme Court is consistently being the most cooperative institution in collecting the Report of State Officials Wealth (LHKPN), compared to other state institutions. However, the submission of LHKPN alone is not enough to deliver the message that the Supreme Court is anti-corruption and upholds the value of integrity.
- The intention to promote values of anti-corruption and integrity will not be transferred well if the officials in strategic positions demonstrate a sumptuous lifestyle which mismatched their sources of income.
- The message of anti-corruption and prioritizing integrity can only be visible to all members of the judiciary if every official who will occupy the strategic positions are not only required to submit LHKPN, but also have their wealth profile analyzed.
- If the new Chief Justice does not pursue this step by asking the assistance from the Corruption Eradication Commission (KPK) and the Indonesian Financial Transaction Reports and Analysis Center (PPATK), it is no wonder that we will have the next Nurhadis seating in strategic positions within the Supreme Court. This will come in line with continuous existence of illegal levies in the court.
- Court modernization is still conducted in unenthusiastic manner
- The implementation of E-Litigation indicates that the Supreme Court has taken a step forward compared to the other law enforcement institutions in the aspect of judicial modernization. However, the implementation of E-Litigation still raises questions about the readiness of infrastructure and human resources. E-litigation is one of the pedestals of MA in responding to the current emergency situation of COVID-19 pandemic. Additionally, e-litigation also raises questions regarding the openness and public transparency aspects.
- Although the Supreme Court already has various modern case handling information systems as mentioned above, those information systems have not touched critical aspects of case administration or essentials in eradicating judicial corruption. For example, the process of case distribution or the appointment of a Panel of Judges in the first-instance courts has not yet been automated.
- Whereas, it has long been known that the process of determining the Panel of Judges by the Head of Court is one of the determining points in the practice of judicial mafia.
- A number of parties stated that the appointment of the Panel of Judges is the full authority of the Head of Court. The question is, should not this authority of the Head of Court be assisted by a technology which ease him/her to carry out his/her duties? This automation system can also help the Head of Court in distributing cases to the panel of judges according to their latest workload.
- Ineffective internal monitoring of the Supreme Court
- Although on September 2016 the Supreme Court has grandly launched the SIWAS application which claimed as a reliable system in receiving and following up online complaints from the public, the Coalition has found that this application is in fact far from effective, based on our experiences in several occasions.
- The process of complaints handling by the Supreme Court’s Supervisory Body is still not transparent and has not able to present the complete resolution as expected by the complainant.
- Based on these two facts, the Coalition concludes that the internal supervision system conducted by the Supreme Court is still inadequate and ineffective in supporting the realization of competent and professional court.
- Although the method of public communication used by the Judicial Commission is also often unsuitable, the Coalition is hoping for the two institutions to build better and harmonious communication to balance the limited capacity of the Supervisory Body of the Supreme Court in conducting internal monitoring function. The opportunity is wide-open considering that in this year the Judicial Commission will also have a change in the composition of the Commissioners.
- Focus of reform is on the institution only instead of on the judges or the primary judicial function
- The Coalition noted that the reform and policies adopted by the Supreme Court were often “Merdeka Utara-centric” and had not yet placed the priority on the needs of judges’ official position or the implementation of primary function of the court according to a proper priority scale.
- As an example, the Supreme Court is still not able to state the adequacy of official houses and vehicles of the Judges as well as the adequacy of official vehicles in each and every court. Yet the Supreme Court is able to build a 12-story magnificent tower and conducting a massive and extravagant launching of annual report every year.
- On the other hand, the courts are also burdened with an accreditation program which was apparently not included in the official budget (DIPA) of each court. As a result, the courts and judges in the region should rack their brains to participate in the program that was launched by the Directorate General in Jakarta.
- If this is the case, using the perspective of judges and lower-level courts, there seemed to be no difference between the Supreme Court’s one-roof system and the two-roofs system in the era of Ministry of Justice.
- The Supreme Court does not seriously exercise its role in the checks and balances mechanisms among the judicial institutions
- The Coalition observes, particularly in the handling of criminal cases, that judges and courts tend to carry out checks and balances in the judicial process in a modest manner. Whereas, the role of Judge and courts (from the first-instance level to cassation) is essential in ensuring the fulfilment of fair trial principles in every trial.
- This lack of seriousness can be seen in the reluctance of the judge to criticize the detention status that has previously determined by the prosecutor against the defendant. Usually the judge will continue or extend the detention period against the defendant as determined by the prosecutor, without criticizing the reason behind the detention. Or, there has been no attempt by the judge or the Supreme Court to set an indicator of punishment to prevent sentencing disparity as a consequence of merely following the indictments of the prosecutors. No wonder that the current criminal justice system in Indonesia could be categorized as almost a failure due to extreme overcapacity problem.
Based on above elaboration, the Coalition requested the Justices of the Supreme Court who will elect the new Chief Justice to vote for a figure with following criteria:
- Possess the integrity that deserves to be the role model for all judiciary members. This could be displayed in the congruity of lifestyle and wealth profile with the sources of incomes that suits the professional norms of judges.
- Not burdened by “past records”, thus able to strictly follow-up the results of examination or violation of ethics perpetrated by judges and court employees.
- Able to recognize and place the needs of judge official position and the function of public service or case handling as top priorities in the process of judicial reform.
- Open and willing to develop harmonious relations with other state institutions, especially the Judicial Commission, in order to complement each other in the effort to achieve independent and competent judiciary for the people of Indonesia.
- Able to project the functions of the Supreme Court as the court of cassation and developer of legal unity, both operationally and institutionally, through its policies on case handling in the Supreme Court.
- Put concerns on the protection of vulnerable groups’ rights during the judicial process, namely women, children, persons with disabilities and the poor.
- Authoritative and have no hesitation in exercising the authority given by the laws as the balancer and protector of the rights of citizens, even when dealing with other state institutions.
Coalition of Judiciary Monitors (KPP)
YLBHI, LeIP, IJRS, ICJR, LBH Jakarta, PBHI, ELSAM, KontraS, ICW,
LBH Masyarakat, PSHK, ICEL, LBH Apik Jakarta, PILNET Indonesia.
 The 2019 Annual Reports of the Supreme Court of the Republic of Indonesia, p. 263-264.