Law enforcement is said to be an honorable calling, but on the other hand its image is tarnished by the corrupt behavior of some in the profession. Case transactions are no longer seen as strange, or even bad, and are instead considered normal. All of this is a sign that various legal provisions that normatively regulate legal proceedings are unable to overcome judicial corruption.
Law enforcement is an activity to harmonize the values presented in solid principles and opinions and manifest them in behavior and actions to create social harmony. Law enforcement, in a broad sense, covers activities to carry out and apply the law and take legal action against every violation of or deviation from it.
Law enforcement also covers activities whose purpose is to ensure that law, as the normative instrument that regulates and binds legal subjects in all aspects of life as a society and a nation, is really obeyed.
The Indonesian context
Law enforcement in Indonesia is currently far from the concept of a constitutional state (rechtsstaat), where law is prominent, above politics and economy. Besides professional violations by some law enforcement officials, rampant judicial corruption in Indonesia has long been a cause for concern in Indonesia. The meaning of judicial corruption, according to the International Bar Association, is as follows:
“The judicial system may be corrupted when any act or omission occurs which is calculated to, or does, result in the loss of impartiality of the judiciary; Specifically, corruption occurs whenever a judge or court officer seeks or receives a benefit of any kind or promise of a benefit of any kind in respect of an exercise of power or other action. Such acts usually constitute criminal offences under national law; Examples of criminal corrupt conduct are: Bribery; Fraud; Utilization of public resources for private gain; Deliberate loss of court records; and Deliberate alteration of court records”.
The International Commission of Jurists (ICJ), in its paper entitled Reviewing Measures to Prevent and Combat Judicial Corruption, states: “…of all types of corruption, judicial corruption is perhaps the most insidious and odious because this type of corruption gnaws and destroys the most important pillar of a democratic government. Much has been written about the topic of corruption, but judicial corruption tops the list of the condemned. Corruption adulterates, clogs, pollutes, perverts and distorts the dispensation of justice.”
Here we see that according to the ICJ, judicial corruption tops the list of the condemned because it destroys the most important pillar of a democratic government.
The effort to eradicate corruption that has taken root and become a culture must involve various elements or parties, such as the police, prosecutors, judges, the public and lawyers. The phenomenon of case transactions, detention postponement transactions, SP3 transactions, charge bargaining, ‘black’ lawyers and other practices of corruption collusion and nepotism (KKN) must be eradicated immediately.
The term judicial corruption is often mentioned with the judicial mafia. This is a pattern or structure that enables some officials to make case transactions in an organized manner. The judicial mafia can exist because the system and culture of law enforcement, as carried out by law enforcement officials, provide an opportunity for deviation.
Law and justice do not work accordingly and can be traded like a commodity. Judicial mafia activities in Indonesia have reached a severe level and almost put an end to the judicial institution itself. From the research by Indonesia Corruption Watch (ICW) in mid 2002, we can find the meaning of the term: “Judicial mafia is systematic corruption involving all offenders, related to or connected with judicial institutions from the police, prosecutors, lawyers, registrars,
judges up to officers of the Correctional Facilities.” There are some matters that cause the formation of a judicial mafia, for example the fact that corruption has become deeply rooted in some law enforcement institutions, and weak protection of human rights in the products of criminal law in Indonesia, especially in the Criminal Procedural Code. We seldom see a court decision that refers to the respect of human rights, the right to life, freedom and protection of property.
Building a legal system relates to three elements: legal structure, legal substance and legal culture. Legal structure, according to internationally-renowned legal historian Lawrence M. Friedman, is the framework, skeleton or the part that gives a kind of shape and definition to the law as a whole. Legal institutions such as the Supreme Court, prosecutors and the police form part of the legal structure.
Legal substance or material refers to the rules, norms and behavior patterns of people inside the system. It also involves the products of people inside the system, including decisions that they render and new rules that they draft. Substance also covers living law – not only law in books.
Legal culture revolves around people’s attitudes toward law and the legal system, its beliefs, values, ideas and expectations. Legal culture also covers the social thought and social forces which determine how law is used, avoided or abused. Without legal culture, the legal system itself is inert.
Boosting skill, competence
Any criminal justice system should have a law enforcement apparatus that is professional, capable, honest and wise. Law enforcement officials have the responsibility to uphold justice and the authority of the law. Professionalism in law enforcement officials can be seen from the mastery of legal science, as well as their capability and personality in carrying out their duties.
The involvement of any law enforcer in any kind of wrongdoing is unsettling for the public. The public’s skepticism towards the morality of legal professionals is a very serious problem that must be solved immediately. The public’s trust in law enforcers is becoming diluted and must also be restored.
In response to the matter, officials in various judicial institutions must promise to put things in order. Should a judge be found to be involved in bribery, the Supreme Court should immediately dismiss him. In addition, heavy sanctions must be imposed on law enforcers involved in judicial mafia activities.
In my opinion, the following can be done to eradicate judicial corruption: the improvement of judicial institutions through recruitment systems and training programs, as well as consistently applying a continuing legal education (CLE) program. As the center for law enforcement, the practitioners in the Supreme Court should also be reminded about ethics and professionalism in the legal profession. The public should also support the eradication of judicial corruption.
Currently, the dynamics in the process of seeking justice in our judicial institution have become very complex. Problems of law and justice are no longer problems of procedures to determine whether or not an action is in conflict with laws and regulations, or whether or not it is in accordance with the prevailing customary law in Indonesian society.
Good ethics and morality have not been rooted in our law enforcers, and the result has been a low level of trust in them from the public. But this country has not yet lost all hope for the professionalism of its law enforcers. The law has not yet bared its claws on justice violators. There are also still groups in society which have a strong conviction that the law can still be upheld in Indonesia.
Ensuring professionalism cannot only be done by dismissing errant judges, prosecutors and police officers, or revoking powers of attorney to advocates as the defender of a person’s legal rights. The process to clean up judicial institutions must start from top to bottom, and not the other way around.
As I have mentioned, education that focuses on understanding the code of ethics is most important. Then there must be an effort to improve CLE for law enforcers in order to increase their knowledge and capabilities. Also important is an improvement in the remuneration and social security systems, because the reality is that this can help with quality and integrity.
Finally, good law enforcement agencies are not born, but made. If there is a strong will, reform of the system of law enforcement in Indonesia can be achieved, and justice in all aspects of life as a society and a country in Indonesia will not only be a dream.
Dr. Frans H. Winarta is an advocate and a lecturer at the law faculty of Pelita Harapan University.
GlobeAsia July 2012