More fallout from Akil Mochtar (Indonesia)

According to The Jakarta Post, there is more fallout from the Akil Mochtar scandal late last year. This time, allegations have arisen that KPK Deputy Chair Bambang Widjojanto asked Akil Mochtar for help getting appointed to the KPK. Read the whole article here.

Judicial Corruption report in Myanmar (Myanmar/Burma)

According to The Irrawaddy, the Hluttaw's Judicial Affairs Committee Chairman Thura Aung Ko has revealed that the committee has received over 10,000 letters of complaints, 90% of which made allegations of corruption. Much of the corruption seems to have involved defendants bringing judges or court staff in order to win favorable outcomes. This is not too surprising given reports of corruption in the judiciary. What is not yet clear is the content of the cases, i.e. if they involve business or human rights disputes. In other words, who is affected most by judicial corruption in Myanmar? Does it have a disproportionate impact in certain types of cases? Hopefully, the committee will release a detailed report containing its full findings.

$8.9 million (Indonesia)

The Akil-gate scandal involving former Constitutional Court justice Akil Mochtar just became an order of magnitude more serious as the Financial Transaction Report and Analysis Center (PPATK) found US $8.9 (Rp. 100 billion) in wire transfers in Akil's account. According to The Jakarta Post, there are now suspicions that Akil was engaged in money laundering and that corruption might have tainted many more elections cases. Meanwhile, Indonesia Corruption Watch is calling for a more exhaustive probe into Akil's wealth.

What's particularly worrying about all of these reservations is that it becomes much harder for the Constitutional Court as a whole to plausibly deny and knowledge of Akil's activities. A single bribe can be hidden quite easily, but it appears that Akil's activities likely generated a completely different lifestyle for the former chief justice. Why did his activities and behavior not raise suspicions earlier? I suspect Indonesians will increasingly be asking themselves those questions.

Rushing towards reform? (Indonesia)

It's no secret that Indonesia's legislature, the DPR, takes a long time to pass laws. As such, in the wake of Akil Mochtar's arrest three weeks ago, one could perhaps sympathize with President SBY's latest attempt to impose stronger judicial ethics requirements on the Mahkamah Konstitusi by executive decree (perppu). The decree calls for an ethics council composed of members of the Judicial Commission and the MK. The decree would also prohibit anybody who had been a member of a political party during the previous 7 years from serving on the court.

However, the president's executive decree powers are limited to responding to immediate crises - . A group of lawyers has challenged the constitutionality of the perppu before, ironically enough, the MK. According to The Jakarta Post, the lawyers have lined up the support of key stakeholders, including former chief justice Jimly Asshiddiqie and law professor Yusril Ihza Mahendra. Former chief justice Mahfud MD has also stated his opposition to the president's plan, remarking that such a response would be necessary for nearly every government institution in Indonesia.

There are two key questions that will likely arise from this case. First, will the court exercise constitutional review over a presidential regulation? Technically, the MK's constitutional jurisdiction covers statutes (undang-undang), not regulations. The Supreme Court does have jurisdiction over regulations but has hesitated to exercise that power. However, the legal grounds might be "fudged" here if the petitioners successfully argue that the president did indeed attempt to promulgate a statute through executive means.

Even if the petition passes the jurisdictional threshold, it is unclear if it would succeed on the merits. On the one hand, the MK knows it needs to institute some mechanism to enforce ethical duties on judges. On the other, the justices have formally stated that the Judicial Commission (KY) has no ability to enforce ethical rules on MK justices. In 2006, the MK stripped the KY of any power to enforce ethical requirements on Supreme Court justices (Case No. 005/PUU-IV/2006 ). In fact, the justices even went out of their way to clarify that the KY also had no power over MK justices, even though that part of their decision was obviously dicta. Last week, Deputy Chief Justice Hamdan Zoelva has already announced that the MK would proceed with its own plans to establish an ethics commission, without the KY's involvement.

Because of the nature of this suit, because the petitioners are challenging a perppu and not undang-undang, it will be particularly difficult for the MK to do what it did in 2011, invalidating the DPR's attempt to circumscribe the MK's power to issue ultra petita verdicts. If the MK goes out of its way to invalidate a perppu, critics could portray it as being resistant to the need for reform and then propose even tougher measures. However, the perppu is clearly at odds with how the MK thinks it needs to respond to this crisis. Either way, I imagine this case will be expedited so we should know the verdict soon.

Taking matters into his own hands (Indonesia)

It's pretty much given now that the Mahkamah Konstitusi will be subject to greater scrutiny in the wake of Akil Mochtar's arrest. Now, according to The Jakarta Post, former chief justice Mahfud MD has opened a complaints center for former litigants who feel their cases were not decided fairly. The center does not seem to possess any legal status to overturn decisions or sanction judges, but it should at least help the court - and Mahfud - stay ahead of the controversy by demonstrating a commitment to transparency.

Take bribes from both sides, then rule fairly... (Indonesia)

Partly corrupt or corrupt impartiality?

Well, after all of that drama, it turns out that the person who allegedly bribed Akil Mochtar won his case before the Constitutional Court after all. According to The Jakarta Post, the MK ruled that Gunung Mas Regent Hambit Bintih did not engage in systematic fraud during the election. Obviously, given the corruption charges against Akil, many will be suspicious of this outcome.

However, it wouldn't be the first time a judge solicited money for a decision that he had already decided. Judges can abuse the information asymmetry that exists between the bench and the litigants to encourage parties engage in bidding to ensure their victory. (Nick Cheesman has written quite a bit about this type of corruption in Myanmar)

Or, as Sir Francis Bacon famously said, "I usually accept bribes from both sides so that tainted money can never influence my decision."

BREAKING NEWS: Akil resigns (Indonesia)

According to The Jakarta Post, Akil Mochtar has resigned as chief justice of the Mahmakah Konstitusi. It is unclear if he has completely resigned from the court or just the chief justiceship, but the writing is on the wall.

Lembaga Survei Indonesia has some survey data about the toll Akil Mochtar's arrest has taken on the MK's reputation. While survey data about the MK are sparse, previously the court's approval rating had been relatively high (even including the fact that many respondents reported not knowing enough to form a judgment). According to LSI's most recent survey, only 28% of the public had faith in the MK and believed it still served as a bastion of the rule of law in Indonesia. What is perhaps more surprising is that almost all respondents had an opinion. 66.5% said they no longer look to the MK as bastion of law enforcement, meaning that only 5.5% of respondents reported not knowing enough to respond. The public is clearly aware of the scandal and paying attention.

President SBY meanwhile has proposed reforms to the appointment procedure for judges. While the MK justices might resist - not without reason - I suspect the political pressure on the justices will be too great. Back in 2011, the MK did invalidate legislation that would have circumscribed its jurisdiction, but the MK had very high levels of public trust back then and stakeholders amongst civil society who saw it as an example of good governance. With this most recent scandal, however, I worry the MK will find fewer allies on its side. As such, it is especially important for the president and DPR to consider any reforms carefully before attempting to force them on the court.

Getting worse all the time (Indonesia)

As if a bribery scandal were not enough, according to The Jakarta Globe the KPK now claims to have found marijuana and ecstasy in Akil Mochtar's office in the Constitutional Court.

There are also more reactions, as Mahfud calls on Akil to resign and Indonesian Corruption Watch urges the KPK to widen its investigation to other allegations of corruption against Akil. President SBY said in a statement that the scandal is even more serious because it potentially means that some Constitutional Court decisions were wrongly decided, and given that decisions are final and binding they would interfere with the democratic process.

BREAKING NEWS: CJ Mochtar arrested

Back in April, I posted news about Akil Mochtar's election to the chief justiceship of the Constitutional Court (Mahkamah Konstitusi). I had mentioned that a few years ago Justice Akil was accused of bribery in a district elections case from North Sumatra. I had speculated that while Chief Justice Akil was cleared of all charges, the allegations might taint his term.

Apparently, corruption has come back to Chief Justice Akil. According to The Jakarta Post, the chief justice was arrested by the Corruption Eradication Commission (KPK) over bribery charges earlier today in connection to a dispute regarding the Gunung Mas Regency elections. The KPK says it seized Rp. 3 million from Akil Mochtar's house and also arrested several other lawmakers.

Obviously, this incident could have huge implications for the MK. Up until now, the MK has had a relatively clean reputation. I suspect this news will shatter that image and disappoint many Indonesian anticorruption activists. Senior Advisor on Governance in Justice Partnership (Partnership), Laode M Sharif - my former colleague at the Asia Foundation in Jakarta - expressed his surprise and disappointment. I expect more to come.

More important than the immediate reaction will be how the rest of the MK handles the scandal. Will the justices be able to decide on a public relations strategy? Will the abandon Mochtar or stick with him? Will the MK wait until the KPK formally charges Mochtar? Until the end of the trial?

This is the beginning of a new era for the MK. I'm heading to Indonesia soon and will hopefully learn more while I'm there.

UPDATE (03 October 2013):

The Jakarta Globe reports more reactions to the news of Akil Mochtar's arrest. The condemnation has been widespread. Former MK Chief Justice Jimly has allegedly suggested the death penalty would have a strong deterrent effect against corruption. Former Chief Justice Mahfud MD has said publicly that Akil Mochtar should cooperate with the investigation. Also reports coming out tomorrow explain the charges levied against Akil Mochtar.

According to Viva News, the MK has already recommended suspending Akil Mochtar and assigned his cases to other justices. Significantly, it appears that, while they have not embraced him, the other justices have not tried to defend him. According to Deputy Chief Justice Hamdan Zoelva, the MK will also launch an internal investigation.

The Toilet Incident (Indonesia)

Unfortunately, another day, another corruption scandal in Indonesia. According to The Jakarta Post, this time, Supreme Court justice candidate Sudrajad Dimyati was observed handing lawmaker Bachruddin Nashori of the National Awakening Party (PKB) an envelope while in a bathroom.

These instances of corruption are sad and frustrating for rule of law reformers in the country. However, they also raise an interesting theoretical question. Why do judges and lawmakers engage in cash transactions in order to effectuate political agreements? Given the risks in being exposed, why wouldn't lawmakers make other compromises with judicial candidates? 

Anti-Corruption Law (Myanmar/Burma)

Myanmar (Burma) now has a an anticorruption law. The Hluttaw passed the Corruption Eradication Law this week for the first time requiring senior government officials - including judges, legislators, and the president - to declare their assets. The law itself is not yet available in English. In the meantime, The Irrawaddy has more details here.

Red handed! (Indonesia)

Don't get caught...

The first rule of corruption is not to get caught. The star of Indonesia's latest corruption scandal violated that primary rule. According to The Jakarta Globe, superlawyer Hotma Sitompul was caught handing Rp 100 million ($9,700) to a Supreme Court official. The bribe was allegedly in connection to the prosecution of police general Djoko Susilo.

I'm sure there will be a lot of commentary over the next few weeks expressing outrage. Much of that outrage is well deserved. However, it's also important to take a moment and remember that many - if not most - Indonesian lawyers are not corrupt. I have met many lawyers who are embarrassed by these sorts of corruption scandals. Some of them have even sacrificed professional opportunities in order to avoid the taint of corruption. So, in the midst of outrage, it's also important to remember those lawyers who fight the small, constant battles everyday to improve the country's legal system.

UPDATE (7/30/13): Jakarta Globe has posted more details of the scandal, including reactions from the bar association (Peradi).

Survey says... judicial corruption is still a problem (Indonesia)

My past few posts about Indonesia have mentioned surveys about corruption and the extent of the problem. A new survey by the Indonesian Legal Roundtable suggests that the judiciary's reputation remains low - amongst the lowest of all government institutions in the country. According to ILR, only 23% of respondents believed judges could not be bribed. 32% believed that businessmen could easily influence the judiciary, while 30% believed political parties could influence the judiciary.

Of course, perception doesn't always equal reality. These results don't necessarily tell us the extent of corruption in the judiciary. However, courts do rely upon public opinion for institutional support and depend upon citizens to file cases. With such low confidence ratings, there's a real risk that, rather than spurring judicial reforms, dissatisfaction with the courts will spur apathy.

For the record, ILR does not mention the Mahkamah Konstitusi and it appears most Indonesians don't immediately think of the MK when asked to evaluate "the judiciary." The latest polls I've seen about the MK (still several years old) suggest that a majority of people have confidence in the court, but large numbers of people still aren't fully aware of it or what it does.

For a summary of ILR's findings, see this Jakarta Post article. For an executive summary of the survey results, see here.

Pay for performance? (Indonesia)

Indonesia's government has increased raised judicial salaries in an attempt to combat corruption. According to The Jakarta Post, salaries had been set at Rp 1.8 million to Rp 4.5 million ($186 to $465) per month, but will rise to Rp. 10.5-45 million (approx. $1,086-4,657) per month, a tenfold increase. Perhaps even more surprisingly, this makes Indonesian judges amongst the highest paid in Asia (Singapore's are the highest overall).

The Supreme Court has stated its hope that this move will reduce corruption within the judiciary. The logic goes that judges will be less tempted to accept bribes. However, there is little empirical evidence that simply increasing the salaries of public servants decreases corruption. To some extent, public officials will not need to resort to corruption in order to survive. However, plenty of corrupt officials have continued engaging in corruption even after becoming rich. Suharto reaped billions, thousands of times what he would have needed to live a comfortable lifestyle. Cross-national research on corruption is notoriously unreliable (for a review of the literature, see Treisman (2007)).

Overall, this is an encouraging move. It's hard to imagine any significant downsides to increasing judicial salaries. Even if it doesn't reduce corruption overnight, it might make the judiciary a more attractive career for the best and brightest lawyers.

Sex and the Courtroom (Indonesia)

I've always said Indonesians are some of the most creative politicians in the world when it comes to corruption. The DPR is drafting a new bribery law, and several commentators, including Constitutional Court Chief Justice Mahfud MD, argue that the law should include sexual favors within the definition of bribery. According to Mahfud's comments in The Jakarta Globe, businesses and politicians have employed mistresses and prostitutes as lobbyists.

Mahfud acknowledges that prosecuting "sexual bribery" will be difficult. However, he doesn't ever suggest that there would be a constitutional problem with including "sexual bribery" in the law. Of course, this raises the question of why Mahfud is commenting on the law. Given public outrage over corruption, one can't help but wonder if this is another instance of Mahfud positioning himself for a presidential run.

However, some judges are clearly not running for popularity contests. Daming Sunusi, a judge from Banjarmasin, East Kalimantan, recently appeared in the DPR for his "fit and proper" test. According to The Jakarta Post, when asked about the death penalty for rapists, he cautioned, “Both the victims of rape and the rapist might have enjoyed their intercourse together, so we should think twice before handing down the death penalty.” Perhaps it's wise that U.S. Supreme Court nominees remain absolutely silent when appearing before the Senate.

UPDATE (1/16/12): According to The Jakarta Post, it looks like the Judiciary Commission is not only not recommending Daming Sunusi for the Supreme Court, but also investigating whether he violated judicial ethics with his rape comments.

We don't have no corruption here... (Myanmar/Burma)

One thing I've said repeatedly is that I'm worried Myanmar's judiciary is going the way of Indonesia's, at least to the extent that Reformasi did not tackle judicial corruption when they had the chance. This is why I worry when I saw Justice U Soe Nyunt's testimony in the Pyithu Hluttaw last week. According to The New Light of Myanmar, the justice claimed that allegations of corruption were merely hearsay. Perhaps, but only because researchers and journalists haven't ben able to do the type of rigorous research needed to expose corruption.

Fortunately, the Hluttaw Rule of Law Committee is allegedly working on a judicial reform bill, so the issue isn't being completely ignored. However, much of what we're heard publicly from the NLD focuses on "judicial independence". I hope the government recognizes that courts need both independence and accountability.

The New Light of Myanmar reprinted below:

Follow the money (Indonesia)

A short but interesting article in The Jakarta Post:

Judges’ financial transactions to be tracked

(30/07/2012) The Judicial Commission said it would use data from the Financial Transaction Reports and Analysis Centre (PPATK) to asses the performance of judges in the country.

Deputy chairman of the Judicial Commission, Imam Anshori Saleh, said that the commission would launch investigations against any judges who had suspicious transactions in their bank accounts.

“This is part of our efforts to maintain the integrity of judges,” Imam said as quoted by kompas.com.

The commission has signed a deal with the PPATK under which the former can obtain the financial records of all the judges in the country.

Judicial Corruption Inquiry (Myanmar/Burma)

It seems once more the Hluttaw is moving to reform Myanmar's justice sector where the judges themselves cannot or will not. According to Irrawaddy, the Judicial Committee, formed last September, has already received 500 complaints from citizens about the abuse in the courts. On Tuesday, the lower house (Pyithu Hluttaw) passed a law granting the committee with the power to investigate these complaints.

We also got an interesting glimmer into the relationship between the judiciary and parliament. While not quite as testy as that between the Philippine Congress and Supreme Court (see here), it's clear the Myanmar Supreme Court doesn't entirely welcome the Hluttaw's proposal. According to Irrawaddy:

Thein Nyunt, a respected MP and lawyer, said, “I rejected the presentation of the Union Supreme Court Judge which could undermine the core meaning of the [investigation powers] proposal, and all the MPs supported my views.”

As I've mentioned before, I think the Hluttaw is taking the right approach. It's important to reform the courts before granting them independence. However, from the proposal currently on the table, it appears the Judicial Commission will focus on "naming and shaming" judges, but will lack enforcement powers. This can still be quite effective if done right. Singapore is infamous for using public humiliation as a punishment.

However, it's not clear this strategy will work without a free media. In one of the few articles to look at judicial accountability, Stefan Voigt (2008) argues that media freedom encourages judicial accountability by exposing corrupt practices in court. With a free media and open hearings, journalists can sit in on cases and report on the progress of the case. While Myanmar's media is becoming freer, it isn't quite yet free enough, particularly for journalists to report on big judicial corruption cases. Also, a free press will be needed to press the Judicial Commission on its investigations and make the guardian of the guardians accountable.

The MK lends an assist

A few weeks ago I posted a news article in which Indonesia's Supreme Court and KPK agreed on a corruption case - no small news. Now, the Constitutional Case has supported the Supreme Court's decision in another corruption case - this time dismissing a challenge against the constitutionality of the prosecutor's appeal when a corruption defendant was acquitted. Read more in The Jakarta Post.

Supreme Court and KPK: together again

Indonesia's Supreme Court and the Anti-Corruption Commission haven't always seen eye-to-eye. However, the KPK recently won a victory when the Supreme Court convicted Bekasi Mayor Mochtar Mohammad to six years in prison and fined him Rp 300 million for graft. Mochtar had been the first defendant in the corruption court system ever acquitted. According to The Jakarta Post, last November the Bandung Corruption Court in West Java acquitted Mochtar. However, suspicions were raised because one of the corruption court judges, Ramlan Comel, was himself sentenced to two years in jail for corruption. The Supreme Court's decision restores the KPK's 100% conviction rate.