310. Judicial mafia

That's a pretty provocative headline, isn't it?  But it's a common phrase, frequently found in the English-language media in Indonesia.  It's even used by legislators:

There remains a low rate of reform in the Supreme Court and the mafia still exists within its ranks, experts said Thursday.

Mahfud MD, a legislator from Commission III with the House of Representatives, said the court's reform process had failed because of judicial corruption and the court's mafia.

"If reform is measured by the process of cleaning out the mafia, then we must say the Supreme Court under [Chief Justice] Bagir Manan has failed to reform," he said.

In an effort to fight judicial corruption, the legislature created an oversight body called the Judicial Commission - which the Supreme Court, in a casually contemptuous display of what judicial power really means, declared the Commission unconstitutional.  (See post 161.)  The fatal flaw in the concept of constitutional government - the thing that prevents it from ever truly coming into existence - is that someone has to be the final arbiter. 

A law professor gave the principled explanation for the status quo (a duty law professors can generally be relied upon to perform):

Law professor with Airlangga University in Surabaya Jacob Elfinus Sahetapy said, "In order to see a full reform of the Supreme Court, the Judicial Commission must be reinforced so it can discipline corrupt judges".

"But the commission cannot interfere in judges' rulings ... internal supervision is needed.

It's a classic lawyer's way of processing information (I don't think it can be accurately termed "thinking"): first you establish categories, then you slot items into them.  The grid is constructed first, then imposed on reality.  The burden is on reality to conform to theory.  The underlying assumption of Elfinus's categories - that "disciplining corrupt judges" is somehow different from "interfering in judges' rulings" - isn't examined.  It can't be, or his comment would be nonsense.

But, to be fair, the professor also pointed out the fundamental problem of transparency:

Elfinus also said mafia practices were impossible to trace.

"And it's getting darker and darker inside the court, with no obvious reform."

How many Americans can say their judiciary's practices are transparent to outsiders?  Or even insiders?

Mahfud, the Indonesian legislator, referred to the fish rotting at the head:

"The case of Harini Wiyoso is an example and proved mafia practices still exist."

Harini Wiyoso was a lawyer for Probosutedjo, the step-brother of Indonesia's former President Soeharto. Harini tried to bribe Chief Justice Bagir Manan and several other judges in 2005.

This is a pretty cryptic reference, possibly because the Jakarta Morning Post, where all this comes from, didn't care to court a libel charge from Chief Justice Manan.  But here's some background:

In September 2005, Manan headed a panel of judges presiding over Probosutedjo’s appeal against his corruption conviction.  Controversy erupted when the KPK arrested Probosutedjo’s lawyer and five Supreme Court officials on suspicion of involvement in bribery. The lawyer said she had paid a bribe of Rp6 billion – of which Rp5 billion was intended for Manan – in order to have Probosutedjo’s conviction overturned. Probosutedjo admitted to paying the money, as well as another Rp10 billion to lower courts. Manan denied any involvement and appointed a new panel of judges to handle the appeal. Probosutedjo was subsequently jailed and the lawyer is now on trial. Manan has repeatedly refused to cooperate with officials investigating the case.

(In September, 2005, five billion Indonesian rupiah were worth just under half a million dollars.)

Naturally enough, lawyers in the underlying corruption case wanted to hear from the supposed chief beneficiary of the accused's largess:

[J]udges presiding over the ongoing corruption trial of Probosutedjo’s lawyer recently rejected the prosecution’s demand to summon Manan as a witness, even though the case is centered on allegations that he was to have received the lion’s share of the bribe.

So the Judicial Commission can't investigate judicial corruption because, under the Constitution, only the judiciary can investigate its own.  And the judiciary won't investigate it.  Which means ...?  You got it. 

I like one legislator's endorsement of the chief justice, evaluating him in the context of his judicial peers: "Bagir is the best of the ugliest."  Now there's something to carve on a tombstone.

Legislator Almuzamil Yusuf was less enthusiastic ...  "Judges in the Supreme Court must not be so over-confident as to think their prerogative to issue verdicts means they cannot be monitored. If that happens, it means the judges regard themselves as the absolute gods in the world of justice," he said.

Well, yeah.  But that's the point.  It's fun to be an absolute god.

Indonesia Corruption Watch produced a white paper titled Lifting the Lid "Judicial Mafia", the power of which is only slightly undercut by its use of an unidiomatic English typified by that title.  But the author strikes off a very evocative phrase: "justice market" (p. 5).

According to the paper, the corruption begins with the police and extends through the prosecutor's office, and many lawyers find it prudent to keep judges on a kind of retainer, paying monthly fees - which, I think (using a lawyer's classification system), ought to come under the category of "extortion" rather than "bribe." 

Another paper, the 2005 report of something called the IMF/Netherlands Program for legal and judicial reform in Indonesia, provides some history explaining how things got so bad.  It was different in the 1950s, when the Indonesian judiciary performed with a high degree of professionalism and integrity.   Then came The Year of Living Dangerously (the year, not the whitey-centric movie):

Weakened by regional rebellions, cold war interventions, political party conflict, and an increasingly active army with political ambitions, the Parliamentary government fell apart in 1957. President Soekarno assumed increasing political responsibility; under army pressure, in 1959 by decree he replaced the provisional parliamentary constitution of 1950 with the strong presidential constitution of 1945. In the new regime of Guided Democracy (1959-1966), characterized by high levels of political tension, concentration of authority in Jakarta, and street level political conflict, nearly all governmental institutions were rapidly shorn of their autonomy and mobilized for political use. During these years Indonesia’s prosecution and courts were undermined by political engagement and the rapid spread of corruption as they, like other government institutions, were liberated from effective oversight in a fortress government subject to few limits.

Under the New Order regime (1966-1998), following a coup in October 1965, the structural dimensions of Guided Democracy were maintained, but leadership and control were now vested principally in the army as the base of political authority. As it became clear that General (later President) Suharto had no intention of restoring the independence and authority of Indonesian judicial institutions, the condition of the prosecution, courts, and notariat quickly declined further, as the corruption begun under Guided Democracy accelerated along with economic growth. At the same time, the private legal profession grew exponentially during the economic boom of the late 60s onwards, diversifying as it multiplied into distinct classes of litigating advocates and commercial “consulting” or office lawyers. While it retained a number of honest senior and junior attorneys, the profession too was quickly and deeply corrupted, widening by degrees the “judicial mafia” that had begun to develop during the mid-1960s of judges, prosecutors, and advocates. No less was true of the quiet but unavoidable notariat. Over a period of about forty years, judicial corruption had become so imbedded that many judges, prosecutors, and private lawyers conceived it less as corruption than as normal interchange or perquisite or simply the way things were done.

A number of themes make their Linda Hunt-like supporting roles in that description: the corrupting effect of concentration of power, for instance.  And that talismanic phrase "judicial independence", although the major problem with the current Indonesian judiciary is precisely its independence from external control.  Then there's the 1960s vogue for using judicial power to further policy goals unrelated to the guilt or innocence of the accused.

Those themes are, perhaps, not unique to Indonesia's judiciary.

Comments

[Mike McKibben]

In discovery on a recent case, the opposition asked for our customer list and shareholder list in a collection action over alleged unpaid consulting fees, which we contested. We objected to the request as not relevant to the matter. The judge took a dislike to our "uncooperative attitude" and then demanded that we release our valuable customer and shareholder lists. We objected on intellectual property grounds; that such information is a trade secret and protected by the Economic Espionage Act of 1996. We might have well been speaking Greek to this Franklin County (Ohio) Court judge.

We requested a protective order for this overreaching discovery, to which the judge ostensibly agreed. However, the other side, a predatory Cleveland attorney, Dale F. Pelsozy, who was conspiring with former counsel to our corporation, Benjamin S. Zacks, whose unabashed disclosure was that he was going to bankrupt the company, kept demanding the shareholder list and customer list. Drafts of a protective order went back and forth. When we finally had a draft we could live with, it went to the judge who proceeded to STRIKE the customary Tier 3 "attorney's eyes only" provision! We never had an intention to give the unscrupulous Pelsozy our lists unprotected. However, once the judge insisted that we had to follow his now neutered protective order, we resisted. The judge then threatened to put me and/or my attorney in jail for contempt of court - for not being willing to follow an improperly constituted protective order. The judge was unilaterally exposing valuable intellectual property to know conspirators (Zacks), corporate saboteurs and predators. Why? Ignorance? Stupidity? Overwork? We do not know, but we were forced to settle the case for over $100,000 undeserved dollars simply to protect our valuable intellectual property. Too many judges in the Franklin County Courts are all too willing to gut the value of a company by forcing it to give up their customer and shareholder lists to predators. They are rewarding the bad guys with this arrogant behavior.In discovery on a recent case, the opposition asked for our customer list and shareholder list in a collection action over alleged unpaid consulting fees, which we contested. We objected to the request as not relevant to the matter. The judge took a dislike to our "uncooperative attitude" and then demanded that we release our valuable customer and shareholder lists. We objected on intellectual property grounds; that such information is a trade secret and protected by the Economic Espionage Act of 1996. We might have well been speaking Greek to this Franklin County (Ohio) Court judge.

We requested a protective order for this overreaching discovery, to which the judge ostensibly agreed. However, the other side, a predatory Cleveland attorney, Dale F. Pelsozy, who was conspiring with former counsel to our corporation, Benjamin S. Zacks, whose unabashed disclosure was that he was going to bankrupt the company, kept demanding the shareholder list and customer list. Drafts of a protective order went back and forth. When we finally had a draft we could live with, it went to the judge who proceeded to STRIKE the customary Tier 3 "attorney's eyes only" provision! We never had an intention to give the unscrupulous Pelsozy our lists unprotected. However, once the judge insisted that we had to follow his now neutered protective order, we resisted. The judge then threatened to put me and/or my attorney in jail for contempt of court - for not being willing to follow an improperly constituted protective order. The judge was unilaterally exposing valuable intellectual property to know conspirators (Zacks), corporate saboteurs and predators. Why? Ignorance? Stupidity? Overwork? We do not know, but we were forced to settle the case for over $100,000 undeserved dollars simply to protect our valuable intellectual property. Too many judges in the Franklin County Courts are all too willing to gut the value of a company by forcing it to give up their customer and shareholder lists to predators. They are rewarding the bad guys with this arrogant behavior. They really don't get it and their ignorance is extremely harmful.