Many Bribery Loopholes for Judges
Over the last few months, many judges and court officials have been caught red-handed receiving bribes. Several days ago, the chief justice of the North Sulawesi High Court was also caught red-handed by the Corruption Eradication Commission (KPK) in Jakarta.
Then, accusations emerged regarding the Supreme Court. This institution, as the center of all court officials, was deemed responsible for all deviations. There are those who think the Supreme Court has failed to maintain judicial honor, and there are others who have even urged Supreme Court Chief Justice Hatta Ali to resign.
As usual, Supreme Court officials defensively claim innocence. All blame is returned to each individual apparatus. The Supreme Court’s supervision and guidance are considered adequate. According to the Supreme Court’s monitoring head, Sunarto, no matter how great the guidance and monitoring system, it would be ineffective without the court officials’ willingness to change their habits for the better (Kompas, 10/10/2017).
Judges’ freedom
This article does not want to extend the debate over the Supreme Court’s responsibilities and the accusations of the institution\'s failure, but only intends to reveal a number of doors and loopholes for judicial apparatuses, especially judges, to commit corruption by requesting and receiving money or other materials from the parties involved in a case.
Incidentally, having been a member of the Judicial Commission for five years enables the writer to listen to and examine the many reports about various forms of corruption carried out by judicial apparatuses, especially judges.
The judges have the freedom to try and decide on a case. There is no power that can reduce this freedom of the judges. This principle applies universally. On one hand, the judges\' freedom is very positive, because this principle is expected to produce fair decisions.
However, on the other hand, this principle becomes an open door for the judges to commit corruption. Internal and external supervision deals only with whether or not there has been a violation of ethics, while technical matters are fully entrusted to the judges handling the cases. The way is wide open for judges without integrity to abuse their freedom.
All cases going to court – civil, criminal, and state administration – have the potential to be used as a gateway for judges to engage in acts of corruption. Such corruption can happen before, at the beginning, in the middle or at the end of a trial. At the beginning of a criminal case, for example, a suspect may file a pretrial motion.
The sexiest kind of pretrial motion is the suspect filing a lawsuit about the legitimacy of their suspect status issued by the police, the prosecutors\' office, or the Corruption Eradication Commission (KPK). Because no other legal methods can be taken against the judge\'s verdict in a pretrial hearing (appeal or cassation), it is understandable that any pretrial hearing garners the public attention.
Moreover, the hearing is presided by only one judge, so the judge’s subjectivity becomes dominant. The chance for the judge to "play" with the verdict is wide open.
Before a suspect is tried in a criminal case, the judge can determine whether a defendant can be detained or not. If they are already detained, the judge can determine whether the detention can be rejected or not. This also becomes an entryway for the judges to ask for or receive bribes from defendants.
Criminal, civil and state administration cases have an interlocutory session. In this decision, the judge can decide whether to continue the case or not. Here is another chance for judges to “play”.
In the process of examining any case, judges have the freedom to use and override witness statements, expert statements, and evidence as legal considerations for making a decision. Here, judges can determine their neutrality or take sides. There is a price in deciding on the latter.
In all cases, the most deciding factor is the judge\'s verdict. The judge\'s verdict can imprison, free, and decide the length of the sentence.
In civil and state administration cases, the judges can rule in favor of one of the disputing parties and can also approve all or part of a lawsuit. If the judges possess a corrupt intention to play the verdict, each carries its own "price".
Integrity is key
There are many ways, many loopholes, and many entryways for judges and apparatuses both. The Supreme Court supervisory division and the Judicial Commission are respectively in charge of internal and external supervision. However, they are powerless to keep watch on the many loopholes and entryways.
Moreover, so far the Supreme Court or Judicial Commission uses a very passive model of supervision, only waiting for incoming reports. To investigate judges needs verification and should involve witnesses and adequate evidence, so the process is complicated and time-consuming.
The establishment of the Judicial Commission, among others, after the reform era, was caused by the fact that the Supreme Court was overwhelmed with overseeing the judges. Then the Code of Ethics and the Guidelines for Judges\' Conduct were issued in 2009. Counseling and coaching were conducted, thousands of reports from the public were processed.
Indeed, many judges were reported to have violated the Code of Ethics and the Guidelines for Judges\' Conduct. However, corruption in the judiciary, in their development from the first stage and up to the Supreme Court as the head of the judiciary, has not subsided. There are also many forms of other violations.
In the past, the many "buying and selling" transactions in the court were believed caused by, among others, the low salaries and welfare of court officials. However, after their salaries, especially those of judges, were raised in 2013, the acts of corruption have not ceased. Many more judges and court officials were proven to have committed corruption.
Those that have been uncovered are actually only a small fraction. Many corruption cases cannot be uncovered, as like the iceberg phenomenon, most of them are submerged along the “slope of the iceberg”.
Since the supervision and guidance by the Supreme Court and Judicial Commission have produced little results, what to watch for are the more substantive issues, namely the judges’ integrity and morality.
Whatever the supervisory and guidance system, if many judges and court officials have low integrity, the corrupt mentality will continue to exist and demands for and acceptance of bribes will continue to happen in various ways, their variations due to the entryways and loopholes that remain wide open for such practices.
Not all judges are corrupt. However, if good judges work and are present within a corrupt environment, efforts to realize a clean judiciary is like trying to unravel a strand of wet yarn, and cannot be achieved.
IMAM ANSHORI SALEH
Commissioner of Judicial Commission from 2010-2015