The Principle of Judicial Independence and Impartiality

For 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.  

“Although 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 by sanctions.  

In 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.  

As a result, there is a general fear of reprisals being taken for decisions which are unpopular with the government, particularly in cases with political overtones”  

A 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.  

(Professor J. ‘t Hart in ‘Aspects of Criminal Justice’, p. 193)

The 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 following:

Public Opinion

It 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.

Australian Criticism

It 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 Bali 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.  

Government Pressure

After 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.

It 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.  

It 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.  

Indonesian 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 constitution which Indonesia currently follows) and it is emphasized in the 1970 Basic Law on Judicial Power.  

The comments, information and facts which are documented throughout this paper indicate that the independence of the judiciary in the Schapelle Corby case was highly unlikely.

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