Reforms give no improvement in the courts for ordinary people

Irianto Subiakto

‘Go ahead and deny it! It will only make your sentence heavier, because the decision is in my hands.’ This is what the judge said to accused, let’s call him ‘Iwan Sumardi’, before he had heard the evidence against him.

Since the fall of Suharto in 1998, part of the reformasi process overseen by the political elite has been to reform the courts and justice system, which under Suharto were considered corrupt and dependent on government. For example, an Ombudsman’s Commission has been created to hear complaints from the people, and a Judicial Commission has been established to assist in the recruitment and monitoring of judges.

Yet Iwan Sumardi’s case suggests little has changed.

Iwan’s case

Iwan. a 23 year old tertiary student, was offered him a legitimate-looking business opportunity to help him pay his tuition fees. Unfortunately, Iwan ended up being accused of banking crimes, embezzlement and fraud. Iwan maintained his innocence, pleading that he had been ‘used’ by a rogue, now a fugitive from the police. Yet from the outset he was denied his human rights, including his right to a fair trial.

Iwan’s trouble began when he went to the Jakarta police headquarters after receiving a summons.He was interrogated and detained by police who presumed his guilt. Despite the Code of Criminal Procedure giving him the right to a lawyer, Iwan was denied access to one throughout this interrogation.

Next was the trial. Indonesia’s Criminal Code and Criminal Procedure Code both contain provisions to guarantee a fair trial. For example, they establish the presumption of innocence and provide procedures to ensure judges conduct the case fairly. Iwan was accompanied by a lawyer throughout the trial, but he received little other benefit from these provisions.

Take the presumption of innocence. The judge was convinced that Iwan was guilty from the outset. Rather than question the unfair process the police used to interrogate Iwan, the judge accepted the police word without question. ‘You do not need to deny it any longer. The facts are clear from the statement you signed at the police station,’ said the judge. And as Iwan continued to maintain his innocence, he was told ‘if you still deny it I will throw this gavel [at you]!’

Further, judges are required to ensure witnesses are allowed to answer questions freely, and are not allowed to give any indication during the trial that presumes the guilt of the accused. Yet in Iwan’s case these rules were also breached. In the end, the judge even awarded a sentence beyond which was allowed by the Criminal Code!

To add insult to injury, the court registrar asked Iwan’s family for a sum of money – they assumed to obtain a lighter sentence - but they were unwilling to pay. Several months later, both the registrar and the presiding judge were arrested on suspicion of blackmailing witnesses in an unrelated case.

Iwan’s despair has not ended, however. Illegality and unfairness have marked the subsequent processes of appeal and detention. And so Iwan remains in prison.

Is Iwan’s case unusual?

Without doubt there are good judges. But Iwan’s court experience is not isolated. Many in the public still suffer injustice in the courts. Legal officials still buy and sell cases; people see the ombudsman as just a ‘postal officer’ to receive complaints but achieve little. And they see other reforms as having little impact on judicial performance.

Confidence in any law reform is lost if there is a large discrepancy between the elite agenda and community experience. Major structural reform of the legal system in Indonesia is needed, but must be accompanied by improvements at the micro level. More professionalism of law enforcers and court administrators is needed, as well as watchdog mechanisms to ensure officials do their job. Judges who misuse their freedom must be accountable to the public. Above all, improvements to the legal system must be directed at serving the public, not those who are part of the system.

Irianto Subiakto (isubiakto@sswlawfirm.co.id) is a private lawyer, defending Iwan Sumardi. He was formerly the head of the Legal Aid Institute (YLBHI) in Jakarta.