Corruption in Indonesia’s legal system is an endemic problem. Dr Wayan P. Windia, a Balinese Common Law Professor at Udayana University who graduated from the Faculty of Law in 1992, spoke with Carla Albertí de la Rosa about how a change in mentality is the best way to put an end to systemic graft.
At the practical level the law in Indonesia must take account of traditional or custom law. Should there be a more formal, perhaps codified, connection between national legislation, the courts and custom law so that legal outcomes are created with which the people would feel culturally and socially comfortable? Or do you see the law as functioning chiefly as an agent of emerging Indonesia-wide uniformity?
It depends on the subject. In family affairs the local regulation is stronger than national regulation. In neutral subjects like investment, national regulation is stronger. I do believe there should be a greater connection between national regulation and custom law.
All law is a matter of interpretation but Indonesian law – and legislation – is often very unclear and open to multiple interpretations. It is essential that clarity – or at least, less opaqueness – is achieved. How can this be addressed?
Many regulations are unclear. It’s necessary for someone to understand the soul of regulations and to know how to make interpretations from many points of view. That’s why the people who have a job in law enforcement must understand many disciplines – not only understand the law but also religious affairs, the real situation in the community, economic affairs… So that they can apply the law to different cases.
It’s a fact that a litigant here can buy a favourable judicial ruling. To what extent, given historical cultural imperatives and relatively low formal salary levels, can legal practitioners themselves act to reduce the culture of graft in Indonesia?
In criminal law and civil law it’s different. In civil law it’s easier to bribe the judge because there’s no strict regulation, especially in connection with family law. But in criminal law it’s a lot harder to bribe the judge. It’s difficult to wipe out these bribes. Many people are happy when they get money; some judges and people from the government are proud about this. So it’s very difficult to get rid of it. In Indonesia, the top figures in government are the ones who have to give an example. That’s the best way to erase these illegal practices. But it’s not like this at the moment; that’s the problem.
What percentage of your law faculty student population is Balinese?
Ninety percent are Balinese.
Who are your most famous alumni?
Suriatin Lijaya is a very famous lawyer in Bali. Also the head of the Bali (district) court in Denpasar, Made Sutamo.
Is, in your view, the Corruption Eradication Commission, doing a good job – and why does it seem constantly under attack?
I’m happy with this institution; it’s the only institution I believe in at the moment. They are doing a good job. Before this institution there was more corruption. Other institutions are jealous. This institution wants to make Indonesia better. So they give the Corruption Eradication Commission more importance than other institutions.
There’s a proposal to establish corruption courts in every province, but the plan has been stalled by lawmakers. Why is this, and what practicable worth would these courts be?
I agree with this idea and I don’t understand why the legislators do not agree with it. It would be worth having them as they could help reduce corruption.
Many foreign firms are reluctant to invest in Indonesia because of the corrupt legal system that cannot guarantee they would get a fair result in the event of a dispute before the courts. What practicable steps can be made to rectify this?
The first thing we have to do is to encourage an understanding that the more corruption, the worse for the community. It’s the only way to overcome corruption. It has to be seen as something bad. We have to change the mentality of the people; that’s the most important thing. They have to see corruption as something bad. The way we can change the mentality of the people is by a good example from the top figures in the government.
Almost every day we hear of another judge being arrested for taking bribes, and some judges are themselves before the courts now on corruption charges. One was sentenced this week to six year’s jail. Doesn’t this paint a shameful picture of Indonesia’s legal system? If these were isolated instances among the judiciary, it wouldn’t be so bad; but there’s a tide of such cases, which suggests the problem is endemic.
It’s a very bad image for Indonesia. But corruption is everywhere.
What is the starting salary for a judge, and what can a Supreme Court judge, at the highest level, earn?
I don’t know about salaries.
The Attorney General’s Office is also home to endless cases of alleged corruption, with some high-level prosecutors recently jailed for big-time corruption. What hope is there given this systemic corruption?
It’s difficult. At the moment it’s difficult to have hope. In the Supreme Court it’s better but at the Attorney General’s Office it’s difficult.
Is it possible for a lawyer to remain “clean” all his or her career and still be successful?
A lawyer can protect a client using his skills and intellect. But it’s not enough right now. Although the intellect is very important.
Let’s turn to the stages of court cases in Indonesia, whether criminal or civil. There’s an initial court case at district level, and if the verdict is appealed it goes to the local high court; if the losing party there decides to appeal that decision, the case moves to the Supreme Court. The Supreme Court’s verdict is then handed down and this can be called a “final verdict.” But it’s not, because the losing party in that decision can file a final appeal, or Judicial Review. So does a final appeal in effect stay (postpone) the Supreme Court verdict?
Yes, it does.
How closely does the Law Faculty work with the Institute for Peace and Democracy, set up to assist the Bali peace Forum process, in its research on judicial independence, anti-corruption measures and human rights-conscious law enforcement?
As an institution we don’t work with the Institute but privately many professors like me take part in the Institute for Peace and Democracy.
Does the Law Faculty teach students about ethics and avoiding corruption?
Yes, we call it Professional Ethics: it teaches about how to be a good lawyer, a good judge or a good government official.
What’s the point? Even “honest” lawyers have publicly said that if they don’t pay, they won’t win any cases.
I think this subject is useful for the students; without it corruption would be a lot worse.
President Susilo Bambang Yudhoyono promised to put an end to the judicial mafia in Indonesia in his first 100 days in office after publicly acknowledging corrupt practices in the country’s legal system. What has been achieved?
I respect his promise. But there are many priorities that influence this program. We have to understand that there are too many political influences.
Women in Bali have fewer rights than men, especially in terms of custody of children in the event of a divorce. Under local laws, children automatically go to the father. Is equality ever going to become a reality?
It is changing; there have been big changes. I believe equality will be possible and I’m still researching it.