Country Watch
sia’s House of Representatives as a member of the Golkar party until August 2013 when he was elected to the Constitutional Court.
The Constitutional Court was formed in 2001 as part of an effort to free the judiciary from the influ- ence of corrupt politics. The Court is responsible for deciding constitutional and election-related is- sues. The Special Courts for Corruption Crimes (also referred to as the Anti-Corruption Court), has the exclusive jurisdiction to hear KPK cases, including Mochtar’s case. This Court was created to provide a forum to ensure that corrupt general court judges could not undermine the KPK’s au- thority by failing to convict corrupt officials. This concern is understandable, considering that Indo- nesia’s judicial system has a reputation for being “complicit in protecting corruptors, and – at the very least – capable of being unresponsive or in- competent in the administration of justice.”
Indonesia’s problems with corruption have per- meated those serving on the Anti-Corruption Court. As of September 2013, five of the approxi- mately 150 judges sitting on regional Anti-Corrup- tion courts had been indicted for corruption. The regional Anti-Corruption Court sitting in Jakarta is considered especially suspicious; it is believed that this court was established “primarily to cir- cumvent the existing courts.”
Numerous implications arise from Mochtar’s ar- rest, and none should be taken lightly. Mochtar’s arrest could seriously impact the Indonesian people’s view of the legitimacy of democracy. The Constitutional Court had gained respect for impartial rulings, and “[f]or many Indonesians, therefore, it is thoroughly depressing that this new institution is now being accused of the same bad behavior as the old ones.”
Mochtar’s arrest could irreversibly undermine confidence in the Constitutional Court, specifi- cally in cases handled by Mochtar. Additionally, Mochtar’s arrest opens up the possibility of a rise in challenges to past court decisions. Former
presidential candidates might now have reason to “dispute the election and challenge the court’s impartiality.”
Mochtar’s reasons for his refusal to submit to an ethics violation investigation raise additional con- cerns. His first reason was that the investigation would be behind closed doors, despite his re- quest for an open investigation. This is of concern because an open investigation would defeat the purpose of a corruption investigation. The more information available to the public, the more likely it is that the investigation itself could potentially be bought with a bribe.
Mochtar’s second reason, that the investigation was “unnecessary” because he had already stepped down from the bench, is equally con- cerning. It could be interpreted as meaning that judges are only responsible for their actions dur- ing their time on the court, and only for the dura- tion of time they are on the court. It implies that former judges do not have to answer for their in-office actions. This, too, would defeat the pur- pose of an ethics investigation, and would invite judges facing potential investigations to resign as a way to escape liability. This option encourages judicial misconduct while leaving little opportu- nity for recourse.
Overall, the rampant corruption in the Indonesian justice system “represent[s] a grave threat to de- mocracy.” Indonesia is losing the battle against corruption, and opportunistic judges are just one small part of the problem. Public servants, too, are seen as having “abandoned their sense of duty in favor of the pursuit of personal wealth.” Mochtar’s removal from the bench may be seen a step in the right direction, but if Indonesia is to fix the corruption problem, they may have to go back to basics. A court date for Mochtar will likely be set pending the conclusion of the ethics investigation.
* Submitted by Rachel Catlett . ILSA Quarterly » volume 22 » issue 2 » December 2013
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