Discussion Notes

The Strategic Asia Policy Interchange

“Governance: Legal Certainty and Access to Justice”

The third Strategic Asia Policy Interchange held on Thursday, 3^rd September 2009 on “Governance: Legal Certainty and Access to Justice” featured Mr. Jimly Ashiddique (former Head of the Constitutional Court) and Mr. Todung Mulya Lubis (Partner, Lubis Santosa Maulana). The discussion was moderated by Mr. Satish Mishra, Managing Director of Strategic Asia Indonesia.

In his introduction, the moderator explained that the key objective of this session is to focus on policy dilemmas, alternative choices of reform strategy, and identify milestones by which the success of such a reform effort should be judged and ways to provide the government with a set of rapid response indicators which will help it keep track of the overall pace and the composition of the legal reform programme.  A number of key issues were posed to guide the discussion:

• First, what has actually been achieved in the first ten years of democratic reform in the area of law and access to justice?
• Second, to what extent have legal reform measures already taken locked future governments on to a specific reform path preventing them from any fundamental reform.
• Third, what are the core priorities for the next decade in the field of legal reform and access to justice?
• Fourth, in what sequence, should the government approach them?  And finally, what can it do so to prevent reform reversals?

 Taking the cue from that introduction, the first speaker, Mr. Todung Mulya Lubis highlighted the following points:

• Historically, Indonesia’s legal system had long been hijacked by state capture corruption and the judiciary mafia, exacerbated further by over-bureaucratization. This condition directly affects: (i) business/investment climate; and (ii) lagging competitiveness with other ASEAN and major Asian countries.  
• Given its critical role, reform of the judiciary system is seen as a strategic and key entry point for legal reform in Indonesia. Reform in this area cannot be isolated from broad measures in public service and bureaucracy reform which is a challenging undertaking as well.  
• Another measure that is needed is to harmonize national laws and local regulations which often contradict each other. Some clear examples are the existence of local regulations (Perda) which are non investment friendly and consequently impedes investors’ interest.

Meanwhile, Mr. Jimly Ashiddique made the following observations:

• To date, most legal reform actions in Indonesia have been driven by short-term political interests. Therefore, it is important to have a grand design of legal reform, with a long-term vision, in order to be able to integrate all legal-related processes which encompass the whole spectrum of the legal system: law making, law enforcement, and management of all institutions related to the legal reform.
• Streamlining of the various institutions and instruments is much needed in order to have an effective and efficient legal system. 
• Radical reform of the court system is also another key entry point.  Given that judges perform functions on behalf of the state, i.e. their rulings have long-term consequences and reflect “truth and justice”, a paradigm shift in the recruitment system of judges is imperative.
• Reform measures can be initiated through piloting of certain models (islands of integrity) in particular areas of the system.  An example is the pilot project on modernization of the judiciary system in Medan. 

Highlights of the Discussion

The discussion focused on the following issues:

1. There is broad agreement on the need to streamline legal institutions and instruments. The key issues are: (i) what is possible to do and when (prioritization/sequencing); (ii) is it possible to initiate reforms through pilots/islands of integrity approaches; and (iii) the reasons for the reform itself – is it to improve business/investment climate or widen access to justice?

2. Several concerns on the “islands of integrity” approach were expressed:

(i) This approach could also and has been misused and abused. Pledges of integrity so far has not been accompanied by an accountability mechanism since there has been no monitoring, complaint, and supervision mechanisms put in place.

(ii) Pilot approaches are usually dependent on leadership – and often times, these approaches are not sustained when the leadership changes.

(iii) Replication of best practices/models often only focuses on the end result and ignores the process and the pre-conditions that enable the model to work. Therefore, there is no guarantee that best practices can work as effectively when replicated in other settings.

3. While access to justice for all is the ideal, given the complicated and often corrupt condition of the legal system, local level resolutions should also be seen as an alternative. A recent UNDP study showed that 90% of local disputes can be resolved through local conflict resolution mechanism.

4. Besides judiciary and court system reforms, there is also the need to reform the bars association given the collusive relationships they have with the judiciary and judges.

5. In the spirit of decentralized governance, it is recommended that provincial courts be given more power and authority (in addition to improving their quality) so as to enable them have direct links with the decentralized policy-making system.  However, this issue also raised some concerns that the empowerment of provincial courts could also create stronger local cronyism and collusion since in most cases, judges is a part of the local elites as well.

6. To date, legal reform issues don’t feature much in political parties’ platform, as they tend to focus more on economic growth. Therefore, it is recommended that one of the ways to put legal reform on the political agenda is by integrating legal reform as a part of the overall measure to sustain economic growth.

Conclusion and recommendations

• While efficiency and effectiveness are important goals of legal reform, it is also important not to lose sight that the main goal of legal reform is to improve the people’s access to justice – which is an integral part of democratic consolidation.  
• Streamlining of the institutions and instruments within the legal system is imperative – and phased measures with clear timelines should be put in place so these can be monitored.
• Reform of the judiciary system should be seen as a priority and measures in this area should be coordinated with overall bureaucratic reform measures.
• Islands of integrity/pilot approaches are useful methods to initiate legal reform but should be applied carefully in its replication.
• More attention and efforts should also be given to empowering and enhancing local resolution mechanisms as an alternative to the formal system. However, the accountability aspect of such mechanisms should also be ensured.
• Essentially, legal reform should be part of the Head of State’s agenda and programme.  It is recommended that a special task force be established to assist the president in preparing and implementing a grand design form legal reform in Indonesia.