JUDICIAL COMMISSION FAILS TO ADVANCE REFORM

C O N F I D E N T I A L SECTION 01 OF 03 JAKARTA 000514

SIPDIS

SIPDIS

DEPT FOR EAP/MTS, INL FOR BOULDIN
DOJ FOR OPDAT FOR ALEXANDRE/LEHMANN

E.O. 12958: DECL: 2/22/2017
TAGS: PREL PGOV KJUS PCRM KTIA KCOR ID
SUBJECT: JUDICIAL COMMISSION FAILS TO ADVANCE REFORM

Classified By: Political Officer Adam West for reasons 1.4(b) and (d).

Summary
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1. (SBU) The Judicial Commission, formed in 2005 to
strengthen the accountability and integrity of the judiciary,
has fallen far short of expectations and has yet to play a
constructive role in judicial reform. The Commission's
primary task, to monitor the behavior of judges and recommend
sanctions against those who fail to meet certain ethical
standards, was both controversial and bound to provoke
opposition from the judiciary. However, the Commission's
aggressive tactics soon went beyond its initial mandate and
brought it into open conflict with the Supreme Court. As a
result, the Commission's supervisory authority was challenged
and finally annulled by the Constitutional Court in August

2006. The Commission's other main responsibility, the
selection of Supreme Court candidates, has been equally
problematic. Parliament has so far refused to act on any of
the Commission's initial recommendations, and the future of
the nomination process is in doubt. While the Commission
still has its defenders, many observers attribute its
problems to its own failure to properly exercise its original
mandate. End Summary

A Needed Instrument for Reform
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2. (U) Legal uncertainty has been repeatedly cited as a major
concern in corruption and investment climate reports about
Indonesia. The judiciary has long been plagued by
allegations of corruption and a culture of impunity summed up
in the oft-repeated phrase "judicial mafia." Under the
Constitution, the Supreme Court has the authority to
investigate and sanction judges who violate ethical norms.
However, the court itself has been the subject of corruption
allegations and justices have been reluctant to wield their
supervisory powers forcefully.


3. (U) In an attempt to address these issues, Parliament in
2003 authorized the creation of a Judicial Commission (known
by the initials KY in Indonesian) to improve judicial
integrity and accountability and serve as a catalyst for
judicial reform. The body was inaugurated in August 2005
with the appointment of seven members, including several
legal scholars, a former parliamentarian and a former
prosecutor. Busyro Muqqodas, former Dean of Law at Indonesia
Islamic University and member of the NGO Indonesia Corruption
Monitoring, was selected to head the group. Two foreign
donors, the Partnership for Governance Reform in Indonesia
and the Norwegian Embassy, provided initial support. The
KY's specific tasks were twofold: to investigate allegations
of judicial misconduct; and to nominate candidates to fill
vacancies on the Supreme Court. Eighteen months later, the
KY has been stripped of authority on the first count and
largely failed on the second, and is struggling to remain
relevant to the judicial reform agenda.

Supervising The Courts
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4. (SBU) After its inauguration in August 2005, the KY took
an aggressive approach to its role as monitor of judges'
behavior. It also adopted what Embassy contacts describe as
an overly expansive view of what constitutes judicial
misconduct. The KY's non-binding Draft Code of Ethics, which
it unilaterally released in September 2006, defines judicial
misconduct as including not only unethical behavior on the
part of judges but also court decisions that, while
justifiable on legal grounds, do not sufficiently reflect the
"community's sense of justice." This ill-defined concept
seemingly allowed the KY to challenge court decisions
regardless of whether or not there was evidence of
impropriety.


5. (C) The KY's invitation to the Indonesian public to submit
complaints about judicial decisions led to a flood of letters
that reportedly reached over 1,000 by November of 2006.
According to KY member Chatarramasjid, the KY carefully
screened out frivolous complaints and focused only on the 200
or so considered to have merit. However, the KY's findings
more often than not took issue with the content of the
decision rather than the behavior of the judge. Moreover,
the KY chose to air their findings through the media rather
than through institutional channels, a practice that Embassy
contacts told us was considered unprofessional by legal

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practitioners. By the end of 2006 the KY had submitted the
names of 18 judges to the Supreme Court for disciplinary
action. Seven judges were suspended by the Court for periods
of between six months and two years, representing a modest
success for the KY. The rest received written reprimands.

Mounting Altercation with the Supreme Court
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6. (SBU) The light punishments led some KY members to
complain about lack of support from the Court, many of whose
members were opposed to judges being subject to supervision
by a body outside the Court's control. The KY's public
criticism of the content of judicial decisions, in turn, led
to complaints by judges and other legal experts that the KY
had gone beyond its mandate and was now second-guessing
judges' decisions in the manner of an appellate court.


7. (SBU) As the debate grew more contentious the KY took aim
at the Supreme Court itself. In January 2006, the KY issued
a list of Justices that it considered to be "problematic" and
recommended that President Yudhoyono compel all 49 Supreme
Court Justices to undergo "re-evaluation" to determine
whether they were suitable to continue to serve on the court.
Despite initial expressions of support, Yudhoyono did not
take any action on the proposal. No official explanation was
ever given for this, but the effect was to further damage the
KY's public image and public confidence in its effectiveness.


8. (SBU) Undeterred, the KY then requested that Chief Justice
Bagir Manan appear before it to answer questions about
bribery allegations made by the lawyer of Probo Sutedjo, a
prominent businessman who had been convicted on corruption
charges. Manan refused, stating that he had already given
testimony to the Anti-Corruption Commission (KPK),the legal
authority investigating the case. While this conflict was
playing out in the press, the Supreme Court struck back:
more than 30 Justices filed suit against the KY with the
Constitutional Court, claiming that the legal basis for the
KY's judicial oversight role was ambiguous, and that KY
actions were threatening judicial independence. The
Constitutional Court agreed, ruling on August 23, 2006 that
the provision granting the KY the power of judicial oversight
was unconstitutional.

Supreme Court Nominees: A Flawed Process
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9. (SBU) The KY's other major responsibility, the nomination
of candidates to fill vacancies on the Supreme Court, has
also remained largely without effect. One legitimate
criticism that can be leveled against the KY is that the
number of candidates that the KY submitted to Parliament for
consideration was less than the number required. According
to the authorizing legislation, the KY should nominate three
candidates for each vacancy on the court, i.e. 18 candidates
for the six vacant seats. However, after reviewing some 130
candidates, the KY submitted only six names to Parliament,
i.e., one for each vacancy. Parliamentarians publicly
criticized the move, which was interpreted by some as an
attempt to reduce Parliament's role to that of a rubber
stamp. The legislature eventually decided to put off
consideration of the six until the KY submitted the
appropriate number of names. The KY immediately reopened the
nomination process and invited the Supreme Court and NGOs to
submit nominees. Press reports state that 59 names have been
submitted so far; 33 of these were among those whom the KY
had rejected in 2006.


10. (C) Aside from the number of candidates, criticism has
also surfaced about the quality of the six who were nominated
and the selection process itself, which included an essay
exercise, a health examination, and a psychological
assessment which KY members describe as a "moral
examination." One legal expert privately described the
assessments as more suitable to college entrance requirements
than to tests for high court judges, whom he said should be
judged based on their prior case decision records. Moreover,
one of the six nominees is currently under investigation for
corruption allegations. Justice Djoko Sarwoko told us that
members of the Supreme Court were disappointed that only two
of the six nominees submitted to Parliament had any prior
experience as judges. Perhaps most damaging to the KY's
future, Aulia Rahman, who serves on the Parliamentary
Sub-committee responsible for evaluating the nominees,
confided that he no longer has confidence in the KY's
capacity to recruit good candidates.

JAKARTA 00000514 003 OF 003



Losing support
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11. (SBU) The KY continues to have supporters in the press
and the NGO community, for whom its goals remain relevant,
despite the KY's missteps in execution. The August 23
Constitutional Court decision was widely criticized, with
Attorney General Abdul Rahman Saleh and others publicly
declaring it a "victory for corruptors." However, the KY's
credibility within the judicial community, which has viewed
it with suspicion from the start, has clearly fallen. So has
its support in Parliament. Several contacts told us that the
KY is no longer respected by the members of other legal
institutions and asserted that its leadership was more
interested in garnering headlines than in serving the public
interest. Moreover, six months after the August 23 decision,
Parliament has yet to take any action to restore or otherwise
redefine the KY's supervisory function, despite considerable
public support for doing so. The Judiciary's implicit
aversion to external oversight made it inevitable that the
KY's mission would be problematic. However, its own poor
performance has alienated many of its supporters within the
DPR and left it nearly toothless. The KY will need to change
course significantly if it is to play a constructive role as
an instrument of reform.
HEFFERN