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.

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.

JC vs. SC redux (Indonesia)

A few weeks ago, I'd mentioned that Palembang District Court Judge Daming Sanusi was criticized for having made an impolitic joke about rape during his "fit and proper test" before the DPR. Daming has since withdrawn his candidacy but the Judicial Commission has announced its desire for the Supreme Court to try him for ethics violations. According to The Jakarta Post, the Supreme Court has refused, stating that Daming has already issued a "sincere apology."

The Commission is continuing its campaign, but, because of the Constitutional Court decision in 2006, it lacks the power to enforce ethics standards and prosecute judges itself. There are no constitutional issues at stake in the current dispute between the JC and SC thus far, but the dispute is important as a sign of whether and how Indonesia can deal with wayward judges. Given the public outrage over the incident, it's possible the JC can mobilize public opinion on its behalf.

Contempt of court bill (Myanmar/Burma)

According to The New Light of Myanmar, the Pyithu Hluttaw passed a contempt of court bill. Unfortunately, no details yet.

Failing judges (Indonesia)

The Judicial Commission announced the results of its review of judicial profession, and its findings are not encouraging. According to The Jakarta Post, 70-80% of judges had not applied judicial procedures properly.

However, the report is a bit confusing in that is critiques judges for applying procedural rather than substantive justice standards. I heard similar complaints from colleagues in Indonesia, particularly when wealthy defendants received light punishments for large crimes and poor defendants were sentences harshly for trivial offenses. Still, it's not clear how giving judges more discretion under a substantive justice standard ameliorates this problem. If anything, it might increase opportunities for corruption.

The KY also revealed that complaints fell from 1,710 in 2011 to 1,482 in 2012, and that more judges were being punished.

Reset the Indonesian judiciary? (Indonesia)

Constitutional Court Chief Justice Mahfud MD certainly has developed a reputation for making controversial statements. However, his recent proposal for judicial reform might be his most controversial yet. According to The Jakarta Post, in a recent speech, he advocated firing all enforcement officers and replacing them. His logic is that the only way to break the networks of corruption is to fill judicial institutions with individuals not plugged into the networks.

I actually don't know of any country that has pursued such a drastic strategy. Pak Mahfud's logic is sound, but I'd be shocked if Indonesia's political elite agreed to it. However, if Pak Mahfud himself becomes a vice presidential candidate in 2014, he might have more opportunities to push his proposals.

First signs of judicial reform in Myanmar? (Myanmar/Burma)

As I've said for a while now, I've been a bit worried that, despite the rhetoric, we have yet to see any concrete proposals for judicial reform in Myanmar. Now, according to The Irrawaddy, the Hluttaw Rule of Law Committee is inspecting conditions in Yangon courts. According to New Democracy Party MP Thein Nyunt, the committee will propose draft legislation on judicial reform by the end of October. While that seems optimistic given how long it's taken to pass the foreign investment law, it is encouraging to see signs of tangible movement.

The future of Philippine judicial reform?

In the aftermath of Chief Justice Corona's impeachment, Steven Rood and Carolyn Mercado have penned their thoughts on the prospects for judicial reform for the Asia Foundation's blog. It's a compact summary of prior reforms and will certainly make many hearken back to the Davide era.

More Chinese linkages with Myanmar's courts

Every once in a while I see articles in The New Light of Myanmar about Myanmar judges meeting with Chinese judges. The visits are obviously public and official, as they are reported in the news. It'd be interested to see whether these visits are part of a a broader engagement. China has undertaken several judicial reform projects, but interestingly still managed to keep the judiciary both formally and informally under the Communist Party. On the one hand, given the pace of political reforms in Myanmar today, it's hard to believe the government views China's judiciary as a model. On the other hand, China's successes in professionalizing judges might hold powerful lessons for Myanmar.

The most recent of these articles is below:

Burma's courts: rhetoric vs. reality

The Asian Human Rights Commission released a statement condemning the continued subordination of Myanmar's judiciary. AHRC alleges the government's talks the talk, but so far hasn't walked the walk:

“The legacy of judicial corruption is today in the foreground of media and public debate, but the anti-corruption rhetoric that we hear is essentially a continuation of the same type of rhetoric that successive military and military-backed regimes iterated for decades,” said the AHRC.

In reporting on the statement, The Irrawaddy highlights recent libel suits against The Voice and Modern Weekly.

While of concern, I do think the government's rhetoric is changing. Whereas a few years ago military officials would admonish judges and blame judicial corruption on loose morals, now public officials seem at least implicitly more willing to acknowledge systemic problems that lead to corruption. As I've written before, the Hluttaw has even taken to reviewing allegations of judicial bias. What's becoming more troubling now is the gap between acknowledgement of the problem and effective judicial reforms.

A test for Myanmar's courts?

According to DVB, a group of farmers in Mingalardon Township is filing a lawsuit against USDP MP Khin Shwe. Khin Shwe was a business tycoon before entering the Hluttaw. The farmers accuse him of conspiring with local officials to seize 815 acres of land. The farmers were forced off their land in April 2010 and are now seeking compensation.

Just a year ago, a lawsuit like this would have been thought a hopeless cause. Now though, as Naypyitaw introduces radical changes to other areas of political life, this case could be a key test. So far, the reforms have not actually threatened to introduce accountability into the political system. Moreover, the judiciary has been a weak link in the reform process. I have yet to see any judicial reform program or serious move to guarantee judicial independence. If the courts provide the villagers with some relief - or even take the case seriously - it might indicate that judges received a signal that they can and should rule independently. Unlikely perhaps, but so was the thought of Aung San Suu Kyi in parliament just a year ago.

Hluttaw oversight of courts

Normally, I'm not one to advocate for infringements on judicial independence. However, one of the biggest mistakes with Indonesia's reformasi period was to give judges independence without accountability, arguable entrenching judicial corruption up to the present day.

In that light, I'm glad to see that Myanmar's parliament (Hluttaw) has formed a committee to review and assess controversial judicial verdicts. According to two Myanmar Times articles (here and here), the Pyithu Hluttaw Judicial and Legislative Committee has invited defendants who believe their case was decided unfairly to submit complaints. The committee can then request the court to reassess the case.

The committee asks for "irrefutable evidence" of bias, which on its face sounds like an impossible standard. Yet, according to committee chairman Thura U Aung Ko, of the 100 complaints received 69 have been granted. This is not only a high rate of success, but also a clear and bold condemnation of the judicial system, arguable one of the least independent in the world.

Usually, when Myanmar's leaders talked about judicial reform, it was in the context of cracking down on corruption. This is the first time I can recall when the discussion has seriously turned to independence and impartiality. It's definitely an encouraging sign. However, judicial reform is a long process and it's not yet clear to me that it's getting the attention it deserves. In particular, we'll need to see more efforts to retrain or even replace current judges with fresh blood.

Suu Kyi speech about courts

 Mizzima has excepts from a speech Daw Aung San Suu Kyi gave at a press conference marking the first anniversary of her release from house arrest. Perhaps not surprisingly given her experience, she lambasts the judicial system. It's worth checking out to see how she prioritizes judicial reform.

A visit from big brother

While The New Light of Myanmar often reports on foreign delegations, it's not often that the exchange focuses on judicial affairs. Yesterday, a delegation from China arrived led by Bai Jingfu, Deputy Director of the Internal and Judicial Affairs Committee of the National People's Congress. He was in Naypyitaw met by Chairman of the Pyithu Hluttaw Judiciary and Legal Affairs Committee Thura U Aung Ko.

I'd only heard rumors before that Burma was looking to China as a model for governance, but this latest report might suggest an actual exchange. While still authoritarian, China's government has improved the capacity and efficiency of its judicial system, so Mr. Bai might have insights to share. On the other hand, China's Communist law system is (or should be) very different from Burma's common law heritage. I'd love to see what they end up discussing. Sadly, I doubt we'll see leaks from their meetings reported in NLM anytime soon.

I've reprinted the brief news clipping below:

Commentary on Indonesian Judicial Reform

Hikmahanto Juwana, professor of law at the University of Indonesia, recently penned a commentary in The Jakarta Post about judicial reform in Indonesia. He makes a distinction between system reforms, which he believes are on path, and personnel reform, which is floundering. In essence, he sees the major problem to judicial reform as recruiting qualified and honest judges, as well as gathering sufficient evidence to punish corrupt judges. He advocates more administrative mechanisms to punish wayward judges. Lisa Hilbink's book about judges under Chile shows the danger that senior judges can manipulate internal disciplinary mechanisms in order to influence the rulings of lower judges. Still, given how desperate the situation in Indonesia's judiciary has become, such measures might be warranted. At the very least, it appears this latest judicial corruption scandal has more people talking about the problem at higher levels.

Thai Judicial Politics

I'd been working on a short piece about Thailand's judicial system for the New Mandala blog, and it's just been published. I'm admittedly not an expert on Thai courts, or even Thailand, but I tried to bring a larger perspective on judicial politics to the situation in Thailand. I suggest that conservative judicial politics has become embedded within the judiciary because of judicial reforms during the late 1890s and 1990s, which introduced civil law courts and judicial review, respectively. I'm currently working on a sequel focusing on the Constitutional Court. I'll let you know when it's posted.

Will judicial reform be part of the U.S.-Indonesia Comprehensive Package?

Of course, we all know how serious a problem corruption has become within the country's legal institutions (here's my last post on the subject). USAID already has a Justice Sector Reform Program, but I've heard many complaints from both within the agency and without that it simply isn't enough. So, what to do?