T

he case of Judge S, who was arrested recently by the Corruption Eradication Commission (KPK) for alleged bribery, has prompted a debate in Indonesia on whether the judiciary is not overly free.

There are calls for closer supervision of the courts and perhaps wheeling back the one roof system which made the courts fully self-managing, including in matters of personnel, finances and infrastructure.

It is true that the one roof system made the judiciary very free, perhaps overly so. One may question the prudence of the measure.

Yet we must also recall that the one roof system was introduced in a feverish time in Indonesian politics, marked by a desire to break with the old, much-abused system at all cost. It was a time of great hope
and optimism mixed with a dose of naiveté about the willingness and ability of courts to redress themselves.

The one roof system was an act of faith more than anything else: courts were given the fullest degree of autonomy, an institutionalized absence of accountability almost to the extreme, based on the hope that they would become better under their own power. Just like that.

The original drafting committee a decade ago included luminaries such as Adnan Buyung Nasution and Jimly Asshiddiqie. They knew they were creating something new, quite uncharted and the prospect must have been exhilarating and terrifying in equal measure.

The majority in the drafting commission applauded the one roof system, which eventually came to be enacted, but that support was not unanimous.

Even in those heady days some members in the committee sounded a note of warning about giving courts such seemingly boundless autonomy.

Would the judiciary be able to manage itself effectively? Will judges be willing to control each other? How will budget be accounted for? How would integrity be upheld?

There were many questions at the time. But the one roof system, surfing on a massive wave of public support including from the NGO community, was not to be stopped: judicial self-governance was enacted by public acclamation.

The warnings were there, but they were drowned out by the masses. Now, 10 years after the one roof system was enacted it is legitimate to ask whether there has been a notable improvement in the courts and the warnings are coming back to haunt us.

The principal external oversight agency introduced during those key reform days a decade ago was the Judicial Commission. It was added in the last minute to the third constitutional amendment and carries the hallmarks of a constitutional afterthought.

This shows up in the constitutional wording, which is poorly conceived and drafted: meant as a repressive oversight body the Judicial Commission was given only advisory powers.

Never quite able to reconcile one and the other the Commission remained in perpetual doubt as to where to place its loyalties: with the executive or with the judiciary. As a result, the Judicial Commission sometimes presents itself as the best friend of the judiciary, but at other times gives free reign to its repressive instincts.

These repressive instincts understandably are particularly acute when a case comes up involving judicial corruption, such as with the Probosutedjo case, which nearly destroyed the Commission, the Judge Ibrahim case last year or the Judge S case now.

Judicial corruption crises transform the Commission into a small KPK even if, since it lacks the authority to sanction or indict, the judiciary does not take it very seriously. The wavering approach of the Judicial Commission did have the important effect of earning it a deep distrust from the judiciary.

This destroyed the ability of the Commission to play a more constructive role in building up the courts through more low-key technical assistance programs and in the process perhaps acquire some steerage within the courts that might offset its weak authority.

That would be a subtle and much needed form of support behind the scenes, in which the Judicial Commission might pro-actively improve the integrity and professionalism of the judiciary.

Had it followed this course it might have developed into an effective support unit for the courts and a powerful political ally, which is the best it could have achieved under the conditions.

As it is, the Judicial Commission cannot conduct effective oversight over the judiciary, because of a bad law, because of its own poor handling in recent years, and last but not least, because the judiciary is uncooperative.

On cases such as Judge S the Judicial Commission has become essentially irrelevant. The formal oversight structure, weak as it was from the onset, is completely dysfunctional.

The place and role of the Judicial Commission needs to be re-designed comprehensively.

So if external oversight does not work, what is the situation with internal oversight? The Judge S case does not by itself prove that the judiciary is dysfunctional. After all, the Indonesian judiciary is very large and as in all large organizations, stuff happens.

Also, the Supreme Court acted quite fast, with Chief Justice Harifin Tumpa suspending and then dismissing Judge S.

Even so, the Judge S case is revealing of deeper flaws of internal oversight that can be traced back directly to the one roof system. In the old days, the supervision of judges was very decentralized and handled by the local offices of the Ministry of Justice (as it then still was).

With the one roof system, supervision over the district court judges moved to the Appeal Courts. The Appeal Courts were never given the funds or staff to conduct effective inspections.

So in reality all supervisory authority sits with the oversight body at the Supreme Court. This is an excellent unit but tiny, which cannot supervise all 804 courts in
the land. So in sum, the internal supervision system is defective: Supreme Court does give the Appeal Courts the means to do their job, whereas the own Supreme Court unit is in no position to supervise the entire country.

It is because the Supreme Court botched the system of internal oversight that Judges like S can operate in impunity. The Supreme Court must re-structure its internal oversight mechanism, and bring it down to local levels.

The writer is program manager, National Legal Reform Program.