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Monday, December 24, 2012

Indonesian judicial reliability

Poor judicial decisions are in the news, as the Supreme Court's ad hoc ethics committee met to review certain suspicious court decisions several weeks ago. It is well known in the capital, Jakarta that some court decisions are made through corruption. Non-IP cases are worse (million dollar resources deals are a well-known legal nightmare). The Central Jakarta Commercial Court, which hears IP cases, has in general been cleaner than other courts. But there are occasionally periods when things worsen. Rumors are that we are entering such a period now. That is despite recent several judicial arrests and prosecutions including one Commercial Court judge - see here for his arrest details - who has now been convicted.

The Judiciary are upset with the government for refusing to hike their meager wages (judges earn just a few hundred dollars per month). Yet unscrupulous litigants and their lawyers will throw tens of thousands of dollars at a case to help them win it. The temptations are there, but the preventions are not. A third hand comment IP Komodo heard was that judges will do the right thing in serious cases that affect the state, but commercial disputes (which they perceive as the rich just fighting each other) are viewed as cash cows. There is little to stop appellants going to the Supreme Court no matter how weak the case, so lower courts have little to fear. The Supreme Court fails to actively manage the appeal system letting every case proceed (and to be fair the Supreme Court seems very clean now).

At least now they have started to review the quality of lower court decisions to supervise the lower courts. The Judicial Commission reported in its year-end review last week that many judges were dishonest in exercising their judgments and fell short of applying proper court procedures. The Commission also found that 70-80% of judges in the country fell short of applying strict judicial processes, including by taking into consideration only two pieces of legitimate evidence. One of its commissioners said “They are concerned with procedural justice rather than substantive justice. The doctrine [they are using] is the due process of law, instead of the total justice approach.”  160 judges came under investigation for ethics violations in 2012.

Whilst the Supreme Court publishes its decisions, the lower courts still do not. The media is active in reporting cases but journalists do not know how to read cases and rarely comment on them. There is a clear need to measure and benchmark legal decisions.  There are moves afoot to publish more IP case reports, coming from private industry rather than government. The sooner that more steps can be taken to pierce the opaque nature of court decisions, the better. Meanwhile, the Judicial Commission is to be commended for helping to improve matters through publication of its report.

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