Wounded Lady Justice; can she still deliver justice?

As another year ends the public is shocked by news of the rottenness within Indonesia’s judicial system.I refer to a drug abuse case and the changes and manipulation of that Court’s verdict. These unprofessional acts are conducted by respected law enforcers (judges). Pandemic unprofessionalism lingers from colonization, a previous authoritarian regime, and into the current era of fragile reformation. Shameful attitudes blind to corruption are indeed contagious with the hierarchical state apparatus infecting youngsters and even former activists. In response to that, several articles have elaborated these issues by using diverse perspectives and analyses. This article will elaborate the issue from a socio-legal and external standpoint.

Judges need to be encouraged to view their conduct and decisions in a wider social context.No doubt, urgent reforms are needed to remedy the grievances caused by judicial corruption.I suggest re-conceptualizing the integrity of the judicial system with a synergy of internal and external approaches, to replace the current overreliance on a doctrinal approach to law enforcement.

First, it is essential to note that an internal approach must be executed not only through institutional remedies, but also via moral and ethical remedies. In other words, law enforcers must remedy themselves before they attempt to effectively cure another. This proposition has particular relevance to the Indonesian context. Reformation from within will gradually succeed if law enforcers, especially judges, are willing to change their fundamental thoughts, actions, and legal paradigms. Currently, judges are trapped by the trivialities of doctrinal-positivism that simply views cases by exercising textual interpretation, or using a deductive approach. Justice seekers expectations can be jeopardized and disgraced by assuming that all cases are similar and foregoing close scrutiny of each case’s particular social context. Ideally, not only judges in the first instance court should be encouraged to deeply examine legal facts in their social context, but also High and Supreme Court’s judges can benefit from this approach that thinks ‘out side the box’ rather than merely consulting legal texts. This idea is provocative because the procedural code explicitly states the division of jurisdictions among state courts. Nevertheless, in order to deliver justice, a deconstructive attitude is needed (J. Derrida, 1990). Additionally, the inherited Dutch legal tradition that puts precedent below written laws should also be re-evaluated. Cases are a useful legal source worthy to be equally considered by judges in the ongoing interpretation of ambiguous, and sometimes political, meanings of statute.

Indonesia’s Dutch influenced legal education causes most judges to consider themselves as a ‘law enforcer’, which is in truth only part of their role. Parties or disputants come to court hoping to settle their problems fairly and satisfactorily. They are not expecting to encounter daunting procedures or time-consuming bureaucratic processes. Frankly speaking, corruption is a wide spread crime affecting not only judges, but also all law enforcers including lawyers, public prosecutors and the police department. These ‘evil cycles’ must be dismantled gradually by changing the perpetrators fundamental paradigms. Law enforcers should be positioning themselves as ‘problem solvers’ rather than merely ‘law enforcers’ both in private and criminal cases. Moreover, the state needs to consider and appreciate a non-state dispute mechanism.

Legal education is in a unique and influential position to tackle these problems. Some lecturers encourage students to be technical lawyers rather than to be social observers. Some lecturers even go so far to say that the social sciences are irrelevant to the legal world.That is wrong.Obviously, all state regulations are based on social need and made through political processes. Law locates not only inside law and the relations of power between legal officials and citizens; but also outside law, in law’s powerful relationship with most other relations in society (M.Foucault,1972).

The more inclusive the judges, the greater the trust will be between the people and the state court.That is unquestionably true. However, this ideal proposition is still difficult to effectively communicate to Indonesia’s judges, and to be worked towards. This is evidenced by a simple example of the use of the term ‘Your Majesty’ addressing judges in the court room. This attitude creates artificial respect for judges and can widen the gap between justice seekers and state courts. Judges ought to engage with the community and consider themselves as (privileged) members of the community with associated responsibilities. Such an attitude will enhance a judge’s empathy with the people and vice versa.

My second point is that an external ‘watch dog’ is equally important to deal with corruption. Independent external investigators must critically monitor law enforcers in general, and judges in particular. This progressive tri–level approach can be divided into a state approach, middle class approach and grass roots approach.At the state level, Indonesia has the Judicial Commission that aims to recruit the Supreme Court’s judges.However, its jurisdiction to actively monitor judge’s verdicts and their behavior is quite limited. The idea to strengthen the Commission’s jurisdiction should be a priority for the next Constitutional Amendment.Several judges might acidly oppose this notion and in doing so misrepresent the ‘separation of powers’ tenet. The term ‘separation’, as a classical constitutional credo, must be interpreted properly. Separation is not meant to negate dialogue and collaborative work among institutions.The crusade against judicial corruption will be at a stalemate without intimate and harmonious collaboration between the Judicial Commission and the Supreme Court.

Another external step is to engage with young and clean judges by entrenching a moral movement that has been developing through social media networks including Facebook and Twitter.This movement could be even more inclusive by engaging actors outside the state court system. In order to enhance its effectiveness, this movement should be involved with a grass roots approach including lay people, students, NGO workers, and academics. A collective of clean judges supported by diverse supporters can elevate their bargaining power to challenge the prominence of rotten behavior amongst incumbent judges.Because of the enormity of judicial corruption, both in quantity and quality, honest judges must ‘mingle’ in a system that has the capacity to gradually change paradigms. The risk inherent to this approach is that corruption is indeed contagious. It is a great shame for young and honest judges tofail to change the system by their involvement with it, because they are personally infected by a rotten system. Therefore, adopting measures that encourage and recognize the integrity of young, honest and smart judges is crucially needed to tackle the temptations of corruption.

In summary, both internal and external approaches must be exercised consistently in mutually supporting ways. Insiders and outsiders must identify corruption as the mutual enemy, and actively convey the idea of reformation. The Indonesian people and justice seekers have been waiting for so long to witness a firm, assertive, courageous and sincere Lady Justice.The diverse cultural traditions of Indonesia are deeply grounded in integrity that must be reflected in its legal institutions and appointed decision makers. Pessimism is definitely not the proper attitude for legal professionalism, because progress can only flourish with optimistic tones.Fostering the rule of law is a huge and gradual project. It is not achieved by mere reference to the words of a Constitution, but requires a lot of struggles and sacrifices.

 

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