Principle of Judicial
justice to be done, judges must be free to interpret laws independently,
objectively and impartially, without any undue pressure from police, the
government, the military, public opinion, or any other interested person.
the principle of an independent judiciary was already expressed in the
Elucidation to the section on the judiciary in the 1945 Constitution and is
emphasized in the 1970 Basic Law on Judicial Power, the administration of the
court is under the control of the Ministry of Justice. Not only is the budget of
the judiciary controlled by the Ministry, but it also decides on posting,
transfer and promotion. Presidential Decree No. 82/1971 establishes the
mandatory membership of public officials, including judges, in an association
under the chairmanship of the Minister of Interior, KORPRI: which obliges all
members to follow the association’s rules and policy guidelines, enforceable
March 1986, a new law was passed by parliament, according to which the executive
control over the district courts and the courts of appeal will be reinforced and
the judges are to be categorized explicitly as officials of the executive.
Moreover, in every district there is a so-called ‘tripartite’ structure,
which implies a periodical meeting of the chairman of the district court, the
chief prosecutor and the chief of the police. In the so-called MUSIPADA-meetings,
the same participants gather with the chief of the local government and the
commander of the military district (KODIM). Both meetings are strictly
confidential. It has been observed that meetings are held more frequently when
important political cases are being tried.
a result, there is a general fear of reprisals being taken for decisions which
are unpopular with the government, particularly in cases with political
large number of judges of the Supreme Court are former military officers, while
others have first made a political career. These people can be expected to have
intense national pride and regard foreign interest in their decisions as
‘interference’ in their nation’s sovereignty. A lack of independence leads
to a lack of impartiality.
J. ‘t Hart in ‘Aspects of Criminal Justice’, p. 193)
obligation to be impartial appears in KUHAP in different ways. Article 158
prohibits a judge from showing by his attitude or by a remark during the trial
whether or not he thinks the defendant is guilty. Judge Linton Sirait breached
this many times. One could argue that his remarks were motivated by the
could be argued that he was influenced by public opinion when members of the
anti-narcotics group GRANAT carried signs into the court demanding the death
penalty for Schapelle Corby. There was also at least one protest street march
after the verdict calling for Schapelle Corby’s execution.
could also be argued that the judges were negatively influenced by the
Australian media: the offensive remarks of talk-show hosts and their callers
were frequently published in the press and reported on TV; Australian
journalists made insulting remarks about the competence, intelligence and
honesty of the
police and judiciary. These criticisms were no doubt reported by the Indonesian
media. It is likely that the same criticisms were repeated constantly day after
day even though they might have been made weeks before. Perhaps that would be
enough to make any Indonesian angry and spiteful – including a judge.
the verdict, during Schapelle Corby’s High Court appeal, SBY made a very
public announcement that he will never pardon drug smugglers and that they must
serve the full sentence. It was obvious that Schapelle Corby was his target but
there is no way to prove it. It could be argued that his announcement is an
example of government pressure being placed on the judiciary because his
announcement effectively made his personal opinion known.
can be argued that these three factors, working together, could have undermined
all three judges’ independence and impartiality and resulted in the guilty
verdict plus an unprecedented harsh sentence.
is impossible to prove that a judge’s decision has been influenced by public
opinion or government pressure but it is possible
for defence lawyers to argue that the potential for influence did occur,
thus throwing doubt on the fairness of the District Court’s trial procedure,
verdict and sentence (influenced by Indonesian public opinion and Australian
criticism), and it is possible to argue that the High Court’s decision in
finding that the original trial was conducted properly (when it clearly was not)
was influenced by SBY’s announcement.
courts are frequently influenced by outside forces and this is accepted without
question. But the point is they are NOT supposed to be influenced by outside
forces! Judges are supposed to be neutral and objective – never swayed by
other people’s opinions. The Indonesians are fond of saying to Westerners that
their legal system is independent. And so it should be. The principle of an
independent judiciary is contained in their 1945 Constitution (this is the
currently follows) and it is emphasized in the 1970 Basic Law on Judicial
comments, information and facts which are documented throughout this paper
indicate that the independence of the judiciary in the Schapelle Corby case was