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Cablegate: Supreme Court Progresses but Resists Greater

VZCZCXRO3915
OO RUEHCHI RUEHCN RUEHDT RUEHHM
DE RUEHJA #0956/01 1350917
ZNR UUUUU ZZH
O 140917Z MAY 08
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8998
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
RUEHBY/AMEMBASSY CANBERRA 2485
RUEHKA/AMEMBASSY DHAKA 0955
RUEHNE/AMEMBASSY NEW DELHI 1834
RUEHKO/AMEMBASSY TOKYO 1956
RUEHWL/AMEMBASSY WELLINGTON 2641
RUEHHK/AMCONSUL HONG KONG 2669
RUEHPT/AMCONSUL PERTH 0792
RUEAWJB/DEPT OF JUSTICE WASHDC
RHEHNSC/NSC WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RUEAIIA/CIA WASHDC

UNCLAS SECTION 01 OF 03 JAKARTA 000956

SENSITIVE
SIPDIS

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

E.O. 12958: N/A
TAGS: PGOV KJUS KCOR KMCA PREL ID
SUBJECT: SUPREME COURT PROGRESSES BUT RESISTS GREATER
ACCOUNTABILITY

REF: A. JAKARTA 856
B. JAKARTA 183
C. 07 JAKARTA 2953
D. 07 JAKARTA 2722

JAKARTA 00000956 001.2 OF 003


1. (SBU) SUMMARY: Despite progress on several fronts, the
Supreme Court continues to resist efforts to introduce
greater accountability. The Court's 2007 annual report cites
progress on workload management, case management and
transparency, but critics complain that the Court has blocked
external supervision of its finances and efforts to make
judges more accountable. Court leadership is due to turn
over in 2008, but a significant change in direction is
unlikely, given the internal dynamics currently operating at
the Court. END SUMMARY.

PROGRESS TOWARDS GOALS

2. (U) The Supreme Court's 2007 annual report cites progress
in a number of areas related to the blueprint for judicial
reform launched in 2004 (ref B). According to the report,
the Court improved its handling of cases, resulting in a
decrease in the number of cases pending decision to 9,400 at
the end of 2007 from over 12,000 in 2006. The report noted
progress towards implementing the Court's new policy on
transparency, including the publishing of over 3000 decisions
on the Court's website. The report also heralded the
initiation of a certification program for judges who will
handle anti-corruption cases. Some 97 judges have completed
the two-week-long certification process thus far, and the
Court intends to create a pool of up to 1200 certified
anti-corruption judges around the country. USG's Millennium
Challenge Corporation Threshold Program (MCC) and USAID have
supported several of these initiatives.

RESISTING EXTERNAL AUDITS

3. (U) Despite the progress noted above, Embassy contacts
report that the Court continues to resist effort to introduce
greater accountability. One of the key issues is the Court's
refusal to allow external auditing of its finances.
According to the annual report, Indonesia's courts collected
Rp 143 billion (about USD $15 million) in case fees in 2007.
(Note: observers have speculated that the total may in fact
be significantly higher.) Last fall, the Supreme Audit Board
(BPK) filed a criminal complaint against Chief Justice Bagir
Manan because he refused to allow BPK to audit these
accounts. Manan cited a colonial-era law which indicated
that case fees were not considered "state revenue"--a posture
most legal observers today consider indefensible--and
therefore were not under the jurisdiction of BPK.

4. (SBU) The struggle was supposedly resolved after President
Yudhoyono pledged to draft an executive order which would
resolve the legal question (ref D). Eight months later, the
executive order has yet to be issued and the problem has
resurfaced. According to one judicial expert, part of the
problem is that courts cannot hold financial accounts in
Indonesian banks; as a result, accounts are generally held in
the name of individual judges. Moreover, funds deposited by
plaintiffs into those accounts are supposed to be either used
to cover specific court services or refunded to the
plaintiffs at the conclusion of trial. In practice, however,
refunds rarely occur, effectively creating slush funds for
judges to dispose of as they see fit.

WEAK SUPERVISION

5. (SBU) The Court is also reluctant to exercise effective
supervision over the behavior of Indonesia's judges. After
the Constitutional Court stripped away the powers of the
Judicial Commission (at the Supreme Court's request) in 2006,

JAKARTA 00000956 002.2 OF 003


the Court regained the obligation to police its own ranks
(ref C). According to the annual report, 18 judges (out of
some 6000 total) were subject to disciplinary action in 2007
for ethical or procedural violations. Observers point out,
however, that only one judge was charged with corruption
despite widespread claims of judges taking bribes. According
to one Supreme Court Justice, there is no enthusiasm among
the justices for stronger supervision because of fear that
tougher standards will eventually be applied to the justices
themselves.

OPPOSING NON-CAREER JUDGES

6. (SBU) Embassy contacts have also criticized the Court's
resistance to the use of non-career judges. The
Constitutional Court and the Anti-Corruption Court (ACC)--two
institutions which, unlike the general courts, are generally
viewed as honest and effective--both contain majorities of
non-career judges. While career judges follow bureaucratic
career paths that are controlled by the Supreme Court,
non-career judges--who normally come from private law
practices or the academic world--are not beholden to senior
judges for placement or promotion. They are seen as less
susceptible to outside influence. Observers and NGOs
frequently argue that non-career judges dramatically improve
the quality of decisions in high-profile cases.

7. (SBU) However, the Supreme Court has actively resisted
the use of non-career judges, according to contacts. A
contact told poloff that the non-career judges on the ACC
waited almost a year before receiving a paycheck from the
court bureaucracy, which is under the Supreme Court's
control. An NGO contact noted that the Court has barred
non-career judges from participating in the Court's
anticorruption judge certification process (see above),
despite a current proposal by the Ministry of Law and Human
Rights to place non-career judges in provincial courts
specifically to hear corruption cases (ref A). He speculated
that this may be an attempt by the Court to make an end run
around those plans.

EXTERNAL PRESSURE DRIVING REFORMS

8. (SBU) A contact at the Center for Law and Policy Studies
(PSHK) told poloff that ongoing reforms at the Court are
largely the result of external pressure. The contact cited
the Court's Reform Team (an external body which the current
Chief Justice helped establish), and a pilot reform project
organized by the Corruption Eradication Commission and the
Ministry of Finance (MoF), as the major movers of court
reform. Indeed, the MoF recently approved a significant
increase in non-salary allowances for Court officials based
on progress towards reform goals. Our contact complained,
however, that the incentives were granted too liberally, and
suggested that future incentives be tied more strictly to
performance benchmarks.

NEW WINE, OLD BOTTLES?

9. (SBU) The impending retirement of the Chief Justice and
key deputies over the next year will bring new leadership to
the Court. However, contacts are pessimistic that the new
leaders will prove more progressive given the resistance
shown by the justices, who elect their own leadership.
According to one expert, the internal politics of the Court
are heavily influenced by the group of justices from
Indonesia's religious courts, a largely conservative group
which comprises more than 25% of the justices even though
religious cases represent only 3% of the Court's docket. A
senior justice agreed that the current makeup of the Court
was problematic, as religious and military judges often
decide civil and criminal matters which lay outside their

JAKARTA 00000956 003.2 OF 003


area of expertise. (Note: Indonesia's religious courts
handle mainly family law and inheritance cases.) This
Justice told us that the mismatch of expertise to
caseload--rather than corruption--was the main cause of the
poor decision making at the Court.

10. (SBU) Supreme Court reform is a long-term process where
much remains to be done. External forces--including foreign
donors such as MCC--will help keep current projects in place,
but greater accountability will probably come only with a
generational turnover of Court personnel. When this will
occur depends to some degree on the legislature, which later
this year will begin the process of appointing new
Commissioners to the Judicial Commission which nominates new
justices. This selection will be crucial to improving the
quality of justices appointed to the Court.
HEFFERN

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