Absolute deference corrupts absolutely

Frank Richardson ,  Norwich, UK   |  Mon, 04/14/2008 11:52 AM  |  Opinion

In Indonesian courts even the body language has to be deferential: No slouching, no crossing of legs and, no matter how blatantly unjust the verdict, obeisant gratitude is expected. So rarely are judges and prosecutors properly challenged by defense lawyers, they have little need to demonstrate either integrity or expertise in the law.

Instead many lawyers either practice "process litigation", whereby they expect to be paid for simply going through the legal motions, or they negotiate a bribe.

It is often a mistake to stereotypify nationals and even more so in ethnically diverse Indonesia, but, with the exception of certain regions such as in Sumatra, deference is endemic. The beneficiaries of deference may consider it seditious to say so, but if anything detracts from democracy and equal rights it is this.

Deference confers power on those being deferred to. If you imagine everyone going around in their own power bubble, those of the poor will be almost skin tight, while others belonging to those accorded deference because of their wealth and status will be expansive.

The latter will have inflated their power bubbles by drawing from and thereby deflating others'. Undue importance given to such status symbols as luxury cars, mansions, job titles and academic certificates is a clear sign of this.

Since, to quote John E.E.D. Acton, first Baron Acton, "power corrupts and absolute power corrupts absolutely", deference, therefore, because it confers the power in the first place, is the real source of corruption.

The opposite of deference, though, is not insolence, sedition or disrespect -- it is healthy assertiveness and challenge. It is easy to castigate judges for being corrupt and to single out a few corrupt mandarins and plutocrats to be pilloried. However, if we accept that deference corrupts, then it is the excessively deferential who are also, to a large extent responsible, and have a duty to change.

It is because they know they are unlikely ever to be brought to account, that corrupt judges in Indonesia have little need to go to great lengths to hide their taking of bribes. Unlike in other countries, the paths to judges' chambers and homes are all too well-trodden by acquiescing lawyers.

Corrupt judges must be challenged intelligently, which means creatively, tactically and by according them the very objectively rigorous process to establish the truth they deny others.

The feature that usually marks out the verdict of a corrupt judge is unjustness that is apparent from often glaring inconsistencies or irregularities. It is these that must be exposed. Judges, after all, are there to establish the truth and mete out justice in the interests of society.

When, because of corruption, they sell the power of state apparatus to the highest bidder, they totally fail in their duty to society and betray the very reason they were appointed. They certainly deserve no deference, but because of their power, they should be treated with respectful caution rather than fear.

It is, therefore, the judgments of corrupt judges that must be assertively challenged. If one sticks only to the conventional way of doing things and goes through the process of appeals, injustice can prevail for years with no guarantee even then that justice will be done in the end.

Not surprisingly, given the expense and inconvenience of it all, most simply do not bother. They endure the injustice and nothing changes so that, on a macro scale, Indonesians, though inhabiting a country that is fabulously rich in natural resources, remain poor and, as other Asian countries surge ahead, they, in relative terms, become poorer while their environment is despoiled.

Lawyers, too, need to be better educated, better trained in law, litigation, advocacy, ethics and effective assertiveness with the clear aim of producing, first and foremost, just results for their clients. It should be the required function of a good lawyer to stretch the abilities of judges who, in turn, should expect and welcome this as the best way to arrive at the truth and mete out justice.

According to Jeremy Bentham, the English philosopher and jurist, "Publicity is the very soul of justice. ....... It keeps the judge, while trying, under trial." Thus, the media too, which now includes the internet, have a role. The Indonesian press can be suspiciously selective in which cases it reports and how, and those elements of the press that are downright venal and exploitative in no way serve justice.

The Supreme Court puts its judgments on-line and all other courts should be encouraged to do the same, along with statutory laws and rights, fair detention and trial regulations, and the processes for appointing, monitoring and disciplining judges.

Openness is an essential feature of justice and lawyers, litigants and the indicted now, because of modern technology, have the opportunity to extend the oversight of judicial processes by society, especially by means of the internet.

However, these types of exposure do not, alone, challenge judges to become responsible and accountable, they merely provide the means for corrupt judges to be challenged. It is up to Indonesian society to take up the challenge and assertively bring its judges to account. The only remaining question then is: Is Indonesia as a whole ready for the challenge of being challenged?

The writer is Director of Opentrial Limited, Norwich, UK.

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