JUDICIAL REFORMS FACE UNCERTAIN FUTURE IN

UNCLAS SECTION 01 OF 03 JAKARTA 000856 AIDAC SENSITIVE SIPDIS DEPT FOR EAP, EAP/MTS, EAP/MLS, INL FOR BOULDIN/BUHLER DEPT FOR EEB/IFD/OMA DOJ/OPDAT FOR LEHMANN/ALEXANDRE SINGAPORE FOR BAKER TREASURY FOR IA-BAUKOL NSC FOR E.PHU E.O. 12958: N/A TAGS: PGOV KJUS KCOR ID SUBJECT: JUDICIAL REFORMS FACE UNCERTAIN FUTURE IN PARLIAMENT REF: A. JAKARTA 739 ¶B. JAKARTA 183 ¶C. 07 JAKARTA 2953 ¶D. 07 JAKARTA 2753 ¶E. 07 JAKARTA 2464 ¶F. 07 JAKARTA 514 JAKARTA 00000856 001.2 OF 003 ¶1. (U) This message is Sensitive but Unclassified--Please handle accordingly. ¶2. (SBU) SUMMARY: Judicial reform faces an uncertain future as Parliament's (DPR) Law and Human Rights Commission begins drafting bills in several key areas. The most significant changes would likely be at the special Anti-Corruption Court, where a battle is being waged between those who want to empower the body--and, by extension, the Corruption Eradication Commission--and those who would prefer to see it weakened or eliminated. ¶3. (SBU) SUMMARY (Con'd): Other bills would reform the way judges in Indonesia are supervised, but will likely leave other critical judicial issues untouched. Over all, substantial judicial reform does not appear to be a high legislative priority at this time, especially with the political focus quickly shifting to the national elections slated to take place next year. END SUMMARY. THE REFORM PLAN ¶4. (SBU) The 2008 legislative agenda for the Indonesian Parliament (DPR) includes four bills related to judicial reform. According to the plan, the bills will focus on four key judicial institutions: the Anti-Corruption Court (ACC); the Supreme Court (SC); the Judicial Commission (JC); and, the Constitutional Court (CC). According to Mission contacts, none of the bills are near completion and it is unlikely that the DPR's Law and Human Rights Commission will take up more than two before the 2009 election season opens. However, some details have started to emerge on the possible makeup of the drafts. ANTI-CORRUPTION COURT: BAROMETER FOR CORRUPTION REFORM ¶5. (SBU) The ACC is both the most urgent and the most controversial issue facing the Law and Human Rights Commission. The ACC was created in tandem with its partner body, the Corruption Eradication Commission (KPK),in order to try high profile corruption cases outside the general courts, which are widely seen as corrupt. The body has been a great success, issuing convictions in 100% of the cases brought before it. However, in December 2006, the Constitutional Court ruled that the ACC was unconstitutional due to problems with original legislation and the differential treatment defendants received in the ACC versus the general courts. ¶6. (SBU) The Constitutional Court gave the ACC a three-year grace period to continue operating and instructed Parliament to pass a law that outlined the ACC's specific roles and responsibilities. A Ministry of Law and Human Rights drafting team has submitted an ACC draft bill to the President for approval (ref E). However, an NGO contact recently told us that the DPR intends to draft its own bill. The Law and Human Rights Commission has already requested drafting input from the KPK, which in turn has asked several NGOs for their input. ¶7. (SBU) The draft ACC has two critical variables: the number of courts and the ratio between career and non-career (so called ad hoc) judges. The Ministry's draft law would establish five "model" Anti-Corruption Courts that would be JAKARTA 00000856 002.2 OF 003 housed within district courts throughout Indonesia. The ACC would be part of the district court, but would have a special docket for corruption cases only. Both the KPK and Attorney General's Office would have authority to try cases in the ACC, addressing a fundamental point of the CC's December 2006 ruling. The "model courts" would be established in Jakarta, Medan, Semarang, Surabaya, and Makassar, according to head of the Ministry's drafting team Romli Atmasasmita. Over time, the proposal would call for at least one ACC in every province. The Supreme Court has already begun providing specialized training in anti-corruption law to career judges with a view towards staffing the new regional ACCs. ¶8. (SBU) The second and even more critical issue is the career - ad hoc judge ratio. The ACC's clean reputation is largely due to the fact that ad hoc judges hold a majority on the Court, according to many government and civil society activists. The Supreme Court, which appoints all career judges to the district courts, regards this non-career, ad hoc judge majority as an affront to its judicial authority. The Ministry's current proposal would maintain the ad hoc judge majority, placing two ad hoc judges and one career judge on a standard ACC panel. However, an alternate proposal being floated would create a larger number of courts and give career judges a majority share on the panels, thereby weakening what many see as the ACC's best feature. ¶9. (SBU) Although the December 2009 deadline is still a year and half away, the next few months will be a critical period as Parliament will soon be shifting virtually all of its attention to the 2009 national elections. If there is no progress on the ACC in the next few months, there is a risk that the law will not be passed before its deadline, according to Indonesia Corruption Watch head Teten Masduki. THE SUPREME COURT: SIDESTEPPING THE ISSUES ¶10. (SBU) Plagued by corruption, political influence and mismanagement, the SC remains Indonesia's most problematic high judicial institution. Despite some reforms and a new transparency policy (ref B),the SC has actively resisted external supervision and auditing, and its inner workings remain hidden from view (ref C). ¶11. (SBU) According to Embassy contacts, however, the DPR is unlikely to attempt to tackle any of these issues in the upcoming legislation. Instead, contacts say they are likely to raise the justices retirement age from 65 to 70 in order to reduce the burden of having to quickly replace the large number of aging justices. (Note: the Chief Justice, who is due to retire this year, has stated publicly that he will retire regardless of any changes in the law.) Some observers have noted that a higher retirement age will in fact hinder further judicial reform by delaying the time when younger, reformist judges can take over from the old guard. One justice told us that the bill may also contain language to the effect that SC decisions are not subject to review by external bodies, a provision clearly aimed at the Judicial Commission (see below). THE JUDICIAL COMMISSION RESSURRECTED? ¶12. (SBU) The JC, which was intended to provide external supervision over judicial behavior, has largely been sidelined since a 2006 Constitutional Court decision stripped it of supervisory powers (ref F). Judicial reform advocates have been calling for legislation to restore its powers ever since, but the DPR, notwithstanding comments made by senior leaders, hhas no prioritized the issue. Moreover", the JC's credbility suffered a severe b"low when one of its comissioners was himself found guilty of accepting abribe JAKARTA 00000856 003.2 OF 003 in March (ref D). Still, the DPR is scheduled to draft a bill which will likely restore some aspect of the JC's authority to monitor judical behavior. According to one NGO contact, the draft may ultimately opt for a joint supervisory board containing both JC commissioners and SC judges. CONSTITUTIONAL COURT: IF IT AIN'T BROKE... ¶13. (SBU) The agenda for the CC bill remains very obscure, and it is unlikely to actually come before the DPR prior to next year's elections. Unlike the Supreme Court and the Judicial Commission, the CC has a solid reputation as a well-run, professional institution. Despite this, some DPR members have complained that the CC is too eager to throw out DPR-enacted legislation and have suggested that its authority needs to be limited in some way. A year ago--in the wake of the ACC and JC decisions (see above)--there appeared to be some public support for this position. However, public criticism of the CC has declined, and lately there have been calls to actually expand the CC's power by giving it jurisdiction over regional election disputes, several of which were recently bungled by the Supreme Court. LIMITED ENTHUSIASM FOR REFORM ¶14. (SBU) Despite the DPR's fairly ambitious agenda for the legal sector, the overall picture is one of limited enthusiasm for further reform. The debate on the ACC is likely to grow even more contentious in the wake of the recent arrests of five current and former DPR members by the KPK (ref A). ¶15. (SBU) While NGOs and judicial activists are pushing hard to renew the court's authority before the December 2009 deadline, many members of the DPR are openly fearful of the ACC and the KPK, and some would clearly prefer to see the body weakened or abolished. In this context, the fate of the ACC bill will be a major test of the DPR's commitment to improving the rule of law of Indonesia. All of this is happening as Indonesia gears up for the 2009 national elections, and it is unclear whether legislators will allow themselves any time to really focus on and move forward with reform efforts given the press of the political calendar. HUME