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Cablegate: Judicial Reforms Face Uncertain Future In

VZCZCXRO0547
OO RUEHCHI RUEHCN RUEHDT RUEHHM
DE RUEHJA #0856/01 1200924
ZNR UUUUU ZZH
O 290924Z APR 08
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8861
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
RUEHBY/AMEMBASSY CANBERRA 2414
RUEHKA/AMEMBASSY DHAKA 0933
RUEHNE/AMEMBASSY NEW DELHI 1794
RUEHKO/AMEMBASSY TOKYO 1892
RUEHWL/AMEMBASSY WELLINGTON 2588
RUEHHK/AMCONSUL HONG KONG 2632
RUEHPT/AMCONSUL PERTH 0749
RUEAWJB/DEPT OF JUSTICE WASHDC
RHEHNSC/NSC WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RUEAIIA/CIA WASHDC

UNCLAS SECTION 01 OF 03 JAKARTA 000856

AIDAC
SENSITIVE
SIPDIS

DEPT FOR EAP, EAP/MTS, EAP/MLS, INL FOR BOULDIN/BUHLER
DEPT FOR EEB/IFD/OMA
DOJ/OPDAT FOR LEHMANN/ALEXANDRE
SINGAPORE FOR BAKER
TREASURY FOR IA-BAUKOL
NSC FOR E.PHU

E.O. 12958: N/A
TAGS: PGOV KJUS KCOR ID
SUBJECT: JUDICIAL REFORMS FACE UNCERTAIN FUTURE IN
PARLIAMENT

REF: A. JAKARTA 739

B. JAKARTA 183
C. 07 JAKARTA 2953
D. 07 JAKARTA 2753
E. 07 JAKARTA 2464
F. 07 JAKARTA 514

JAKARTA 00000856 001.2 OF 003


1. (U) This message is Sensitive but Unclassified--Please
handle accordingly.

2. (SBU) SUMMARY: Judicial reform faces an uncertain future
as Parliament's (DPR) Law and Human Rights Commission begins
drafting bills in several key areas. The most significant
changes would likely be at the special Anti-Corruption Court,
where a battle is being waged between those who want to
empower the body--and, by extension, the Corruption
Eradication Commission--and those who would prefer to see it
weakened or eliminated.

3. (SBU) SUMMARY (Con'd): Other bills would reform the way
judges in Indonesia are supervised, but will likely leave
other critical judicial issues untouched. Over all,
substantial judicial reform does not appear to be a high
legislative priority at this time, especially with the
political focus quickly shifting to the national elections
slated to take place next year. END SUMMARY.

THE REFORM PLAN

4. (SBU) The 2008 legislative agenda for the Indonesian
Parliament (DPR) includes four bills related to judicial
reform. According to the plan, the bills will focus on four
key judicial institutions: the Anti-Corruption Court (ACC);
the Supreme Court (SC); the Judicial Commission (JC); and,
the Constitutional Court (CC). According to Mission
contacts, none of the bills are near completion and it is
unlikely that the DPR's Law and Human Rights Commission will
take up more than two before the 2009 election season opens.
However, some details have started to emerge on the possible
makeup of the drafts.

ANTI-CORRUPTION COURT: BAROMETER FOR CORRUPTION REFORM

5. (SBU) The ACC is both the most urgent and the most
controversial issue facing the Law and Human Rights
Commission. The ACC was created in tandem with its partner
body, the Corruption Eradication Commission (KPK), in order
to try high profile corruption cases outside the general
courts, which are widely seen as corrupt. The body has been
a great success, issuing convictions in 100% of the cases
brought before it. However, in December 2006, the
Constitutional Court ruled that the ACC was unconstitutional
due to problems with original legislation and the
differential treatment defendants received in the ACC versus
the general courts.

6. (SBU) The Constitutional Court gave the ACC a three-year
grace period to continue operating and instructed Parliament
to pass a law that outlined the ACC's specific roles and
responsibilities. A Ministry of Law and Human Rights
drafting team has submitted an ACC draft bill to the
President for approval (ref E). However, an NGO contact
recently told us that the DPR intends to draft its own bill.
The Law and Human Rights Commission has already requested
drafting input from the KPK, which in turn has asked several
NGOs for their input.

7. (SBU) The draft ACC has two critical variables: the
number of courts and the ratio between career and non-career
(so called ad hoc) judges. The Ministry's draft law would
establish five "model" Anti-Corruption Courts that would be

JAKARTA 00000856 002.2 OF 003


housed within district courts throughout Indonesia. The ACC
would be part of the district court, but would have a special
docket for corruption cases only. Both the KPK and Attorney
General's Office would have authority to try cases in the
ACC, addressing a fundamental point of the CC's December 2006
ruling. The "model courts" would be established in Jakarta,
Medan, Semarang, Surabaya, and Makassar, according to head of
the Ministry's drafting team Romli Atmasasmita. Over time,
the proposal would call for at least one ACC in every
province. The Supreme Court has already begun providing
specialized training in anti-corruption law to career judges
with a view towards staffing the new regional ACCs.

8. (SBU) The second and even more critical issue is the
career - ad hoc judge ratio. The ACC's clean reputation is
largely due to the fact that ad hoc judges hold a majority on
the Court, according to many government and civil society
activists. The Supreme Court, which appoints all career
judges to the district courts, regards this non-career, ad
hoc judge majority as an affront to its judicial authority.
The Ministry's current proposal would maintain the ad hoc
judge majority, placing two ad hoc judges and one career
judge on a standard ACC panel. However, an alternate
proposal being floated would create a larger number of courts
and give career judges a majority share on the panels,
thereby weakening what many see as the ACC's best feature.

9. (SBU) Although the December 2009 deadline is still a year
and half away, the next few months will be a critical period
as Parliament will soon be shifting virtually all of its
attention to the 2009 national elections. If there is no
progress on the ACC in the next few months, there is a risk
that the law will not be passed before its deadline,
according to Indonesia Corruption Watch head Teten Masduki.

THE SUPREME COURT: SIDESTEPPING THE ISSUES

10. (SBU) Plagued by corruption, political influence and
mismanagement, the SC remains Indonesia's most problematic
high judicial institution. Despite some reforms and a new
transparency policy (ref B), the SC has actively resisted
external supervision and auditing, and its inner workings
remain hidden from view (ref C).

11. (SBU) According to Embassy contacts, however, the DPR is
unlikely to attempt to tackle any of these issues in the
upcoming legislation. Instead, contacts say they are likely
to raise the justices retirement age from 65 to 70 in order
to reduce the burden of having to quickly replace the large
number of aging justices. (Note: the Chief Justice, who is
due to retire this year, has stated publicly that he will
retire regardless of any changes in the law.) Some
observers have noted that a higher retirement age will in
fact hinder further judicial reform by delaying the time when
younger, reformist judges can take over from the old guard.
One justice told us that the bill may also contain language
to the effect that SC decisions are not subject to review by
external bodies, a provision clearly aimed at the Judicial
Commission (see below).

THE JUDICIAL COMMISSION RESSURRECTED?

12. (SBU) The JC, which was intended to provide external
supervision over judicial behavior, has largely been
sidelined since a 2006 Constitutional Court decision stripped
it of supervisory powers (ref F). Judicial reform advocates
have been calling for legislation to restore its powers ever
since, but the DPR, notwithstanding comments made by senior
leaders, hhas no prioritized the issue. Moreover", the JC's
credbility suffered a severe b"low when one of its
comissioners was himself found guilty of accepting abribe

JAKARTA 00000856 003.2 OF 003


in March (ref D). Still, the DPR is scheduled to draft a
bill which will likely restore some aspect of the JC's
authority to monitor judical behavior. According to one NGO
contact, the draft may ultimately opt for a joint supervisory
board containing both JC commissioners and SC judges.

CONSTITUTIONAL COURT: IF IT AIN'T BROKE...

13. (SBU) The agenda for the CC bill remains very obscure,
and it is unlikely to actually come before the DPR prior to
next year's elections. Unlike the Supreme Court and the
Judicial Commission, the CC has a solid reputation as a
well-run, professional institution. Despite this, some DPR
members have complained that the CC is too eager to throw out
DPR-enacted legislation and have suggested that its authority
needs to be limited in some way. A year ago--in the wake of
the ACC and JC decisions (see above)--there appeared to be
some public support for this position. However, public
criticism of the CC has declined, and lately there have been
calls to actually expand the CC's power by giving it
jurisdiction over regional election disputes, several of
which were recently bungled by the Supreme Court.

LIMITED ENTHUSIASM FOR REFORM

14. (SBU) Despite the DPR's fairly ambitious agenda for the
legal sector, the overall picture is one of limited
enthusiasm for further reform. The debate on the ACC is
likely to grow even more contentious in the wake of the
recent arrests of five current and former DPR members by the
KPK (ref A).

15. (SBU) While NGOs and judicial activists are pushing hard
to renew the court's authority before the December 2009
deadline, many members of the DPR are openly fearful of the
ACC and the KPK, and some would clearly prefer to see the
body weakened or abolished. In this context, the fate of the
ACC bill will be a major test of the DPR's commitment to
improving the rule of law of Indonesia. All of this is
happening as Indonesia gears up for the 2009 national
elections, and it is unclear whether legislators will allow
themselves any time to really focus on and move forward with
reform efforts given the press of the political calendar.

HUME

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