Referee Without a Red Card

To have more power, the Judicial Commission plans to propose an amendment to Law No. 22/2004.

THE Judicial Commission sent a letter to the Supreme Court on September 15. It asked the fate of its recommendation on five judges at the Bandung High Court who tried the case of conflict in the election of the Depok regional leaders. "It's been too long, no follow-up action," said commission member, Iraway Joenoes.

In the recommendation, the commission asked the Supreme Court to suspend the head of the panel of judges, Nana Juwana. It also asked that the other four judges--Hadi Lelana, Rata Kembaren, Sopyan Royan, and Ginalita Silitonga--be given written reprimands because all five were deemed to have behaved in an unprofessional manner when they annulled Nurhamudi Ismail's victory in the election.
The Supreme Court has indeed not responded to the recommendation. Previously, Supreme Court Chief Justice Bagir Manan reasoned that the recommendation would be discussed after the panel of review judges had given its verdict on the election conflict case. "We focus on the main issue, then on others," said Bagir.
The Judicial Commission, obviously, cannot force the Supreme Court, because the former's authority is limited to giving recommendations only. Article 13 of the Judicial Commission Law does indeed state firmly that the commission's task is to recommend the installation of supreme judges to the House of Representatives (DPR) and to uphold the judges' behavior.
To implement task number two, the commission is limited to giving recommendations only. In addition, it can only impose one sanction that is binding in nature, namely, written reprimand. The other two sanctions that are more serious--"suspension" and "termination"--are in the hands of the Supreme Court. This makes the commission feel toothless.

According to former head of the DPR's legislative body, Zain Badjeber, that is the extent of the authority the law bestows on the commission. With regard to the sanction to fire that is not binding, for example, according to him the mechanism to fire judges is also tied to the Law on Judges and Law on Employees. "That is why the authority to fire is in the hands of the Supreme Court," he said.

The Judicial Commission realizes this weakness and has taken steps to propose an amendment to Law No. 22/2004 on the Judicial Commission. In addition to the objects of investigation, the authority to execute the recommendation that it makes is also proposed to be amended.

Former member of the Special Committee on the Judicial Commission, Akil Mochtar, admits that the limiting of the Judicial Commission's authority is to prevent overlapping with the role of the Supreme Court. The problem now is, what if there are differences of opinions between the two institutions? According to Akil, naturally the commission's voice must be adopted. If the recommendation is disregarded, it will exacerbate the Supreme Court's image in the eye of the people. "That is the position that the Supreme Court must also consider," said the member of the Golkar Party faction.

Akil Mochtar did not mind if the committee proposed an amendment to the Judicial Commission Law. "However, they should do their job first. Don't be like DPD (Regional Representatives Council), it hasn't even started and yet it already asks for additional authority. Work first using the existing authority," he said.

The road to amending Law No. 22/2004 seems to be still a long one. The debate to grant institutional authority to it will be tough. Researcher at the Institute for Study and Advocacy for Justice Administration Independence, Dian Rositawati, said that the law did give limited authority to the commission. In addition, said she, this had to be understood as a political product that naturally would be fraught with a tug-of-war of interests. "There must certainly be lobbying between the DPR and the Supreme Court," she said. From the atmosphere at the discussion, one got the impression that the commission's authority was deliberately limited.

Especially since there are voices today saying that the implementation of the commission's authority has exceeded the law, particularly in their recommendation in the case of the Depok regional head election. Eleven days after the commission submitted its recommendation, Nana Juwana and friends openly considered that it had exceeded its authority.

A similar protest was expressed by the Indonesian Judges Association (Ikahi), led by its chairman Abdul Kadir Mappong. In its statement on October 7, the Ikahi central committee deemed the commission to have exceeded its authority granted by the law. "We hope that the Judicial Commission's tasks will not come into conflict with the judges' freedom in investigating and making a verdict on cases," said Mappong.

Ikahi respects and reveres the Judicial Commission's independence and supports its monitoring efforts in line with the law. However, said Ikahi, there is a possibility that the commission is being used by justice seekers who are not satisfied with court verdicts to secure a shortcut without going through legal processes.

Busyro Muqoddas denied the charge. According to him, that concern is unwarranted. "The Judicial Commission will not replace the duty of courts," he said. Even when the commission looks at a judge's verdict, it is to evaluate to see whether or not the resulting product is irregular.

Abdul Manan

TEMPO, NOVEMBER 14, 2005-010/P. 50 Heading Law


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