If there is a ray of light in the dismal jungle of Indonesian law, it is the lawyers.
Good lawyers and bad lawyers
There are many highly professional and ethical lawyers, some well-known and respected
as national heros for their lead in the struggle for democracy during the Suharto
era and for transparency and human rights in the Reform era.
It sounds an odd question, and usually at Indonesian Law Advisory we would try to avoid proposing theories,
but this answer underlines a crucial feature about institutions of law in Indonesia.
In many countries, lawyers lead struggles for democracy, reform, and rule of law.
Certainly they do in Indonesia.
In fact there are also good police, good prosecutors, and good judges who want to
support reform, but finding one willing and able to do so is more difficult.
The reason is probably that police, prosecutors, and judges are all public servants
or pegawai negeri, working for salary in monolithic government institutions.
Pegawai negeri typically start at the bottom in their home regency, and then
as they rise–if they rise–they face increasing competition for top positions
with higher authority, prestige, and salary at the provincial and national levels.
These are ideal conditions for perpetuating “institutional cultures.”
Only those who go along with the system, show themselves good team players, and
give proper deference to their superiors, will advance.
It is well-known throughout the world that “police do not investigate police.”
Popular movies about Serpico and the NYPD, scandals about police in Los Angeles,
Hong Kong, Belgium, Chicago–all based on fact–only end with establishment
of a department of Internal Affairs.
But Internal Affairs officers are necessarily outsiders from other jurisdictions.
In Indonesia there are no other jurisdictions; all police attend the same police
academy, someone always knows someone who knows someone, and they are all on the
same career ladder together.
The Prosecutors Office (kejaksaan) and the courts (keadilan) work
the same way.
I have had individual police and prosecutors tell me of their own personal frustration
and anger and disgust at the system they are bound up in, and I have every reason
to believe them, and yet they have no escape and no options. If they fight the system,
they will not only fail, but they will destroy their careers.
This is the reason we emphasized earlier that The “culture of corruption”
in Indonesia is not the culture of the Indonesian people—it is the culture of the
legal institutions.
Lawyers, on the other hand, are part of the legal system, but not part of a monolithic
institution. There are some bad lawyers as there are in all countries, and the Indonesian
legal system gives them unusual opportunities. But the good ones are very good indeed,
because the battles they fight are not just about law but about the entire future
of their country.
Yet there are limits to what even the best lawyers can do given the dysfunction
in the legal system.
Unfortunately, there are other lawyers who regularly
serve up their clients for dinner; in virtually every civil or criminal case which
ventures off into the territory of the Mafia Hukum, the lawyers for one, if not
both, contenders have taken the lead in making the necessary deals.
Issues with law offices
Overstating certainty about the law
In an earlier chapter titled Formal Law we referred to one problem—the
claiming of unrealistic certainty about the law—which is not an actual deception
or failing by law offices, but more likely a product of their training and necessary
marketing of their services. Law offices all over the world do the same thing.
Also it's worth remembering that in any civil law battle, both sides expect to win
or they would never have gone to court in the first place. In every decision, one
side turns out to have been wrong.
The earlier paragraphs are repeated here:
In Indonesia an over-reliance on formal law, as if understanding the law as written
will somehow indicate a solution, is probably unjustified, but lawyers are taught
to do it. It is undoubtedly frustrating to admit that there is no solution.
Professionals do try to pull intent out of laws as written however, and unfortunately,
once they have done so they sometimes relate them to clients or post conclusions
on the internet as if they are facts—reality is, their opinions are often
only untested theories.
But what is worse, they can't admit as much to their clients, because potential
clients will likely shop until they find a lawyer who says he has a solution. Their
business depends on reassuring clients of their expertise.
In most of the world this attitude of certainty is fairly justified by secure legal
systems. But in Indonesia, clients can be inadvertently misled. Repeating from the
chapter Mafia Hukum for Expats:
...you might receive the impression that a little care in choosing your lawyer and
researching laws about land ownership, business establishment, or marriage will
overcome any possible difficulties in the law. When advisors fail to explain fully
the situation, and especially fail to explain the Law Mafia, expatriates can be
left with unrealistic expectations.
Qualified and ethical lawyers in Indonesia aspire to run honest law firms to international
standards in a legal environment which cannot possibly support those standards.
We hope with Indonesian Law Advisory to balance these expectations, and with that, readers
can approach these honest law firms with an understanding that can help
both clients and lawyers deal with their case on a realistic level.
These lawyers do the best they can, but don't expect to go to them and say "I know
Indonesia is corrupt and we have to pay off the judges. So, right, how much will
it cost?" Dealing with corruption is not that easy.
Collusion - when it is overt...
There are other issues with law offices in which lawyers clearly intend to do wrong.
Without cooperation and collusion from lawyers, the other branches of the Mafia
Hukum—government officials, police, prosecutors, and courts—would have
a hard time. The main point of contact between the public and the legal system is
through lawyers.
Straightforward collusion is sometimes obvious. In a civil case, your lawyer
may approach the other side.
This is normal in most countries—representatives of the two parties get together
and see if they can work out a compromise which would be acceptable to both sides
and avoid the greater stresses, expenses, and uncertainties of a court battle. Many
court procedures require a mediation meeting between the two sides prior to continuing
on to trial for exactly this purpose. But normally a client can trust that one’s
lawyer is actually working for the best interests of the client, and the details
of the deal are fully open to approval by the client.
In Indonesia a very different kind of deal can happen in which the lawyers are looking
out for themselves. Two lawyers can get together to explore which side would provide
the most profitable win, and one client may
have incentive to ensure victory with an extra fee. Here is an example:
Two parties are contending over assets. The first party—call him an expatriate
husband—is claiming fifty percent of the common marital assets in a divorce,
in accordance with Indonesian law. The second party—call her an Indonesian
citizen wife—is hoping to keep all the assets, which as in many WNA / WNI
marriages are held in the WNA spouse’s name, maybe even with a prenuptial agreement.
Both parties have signed engagement letters including hourly attorney fees and an
extra incentive payment of two percent of whatever assets result from the decision.
The attorney for the wife has twice as much potential profit from the case—two
percent of all the assets—as compared to the attorney for the husband, who
will receive only two percent of half the assets. In fact, the attorney for the
husband could throw a deal for one percent of the total assets and still come out
even.
But he doesn’t do so, because in a meeting with the other side he claims that the
husband has agreed to pay thirty percent of the recovered assets as an incentive.
This is clever negotiating—he’s a sharp lawyer. The wife is Indonesian, she
knows how this works. She may not believe the thirty percent claim, but she does
recognize the signal for the expected payoff level, and according to law, she is
in a losing position. She offers fifteen percent, to be split evenly between the
two attorneys for a guaranteed win.
The husband’s attorney takes the deal. Both attorneys are guaranteed seven and a
half percent, far more than they would receive without the deal. And the wife receives
eighty-five percent, much better than the fifty percent she would normally receive
under Indonesian law.
Now all that’s left is for one attorney or the other to approach the judges and
work out the decision. Maybe one attorney already has a relationship, but in any
case it’s not hard to do. The judges might want a percent or two for themselves.
It's still a good deal.
It’s unlikely the husband will ever know what happened, by the way.
It works similarly in a criminal case. Recall from a previous chapter quoting
Causes of Corruption in Indonesia by Transparency International:
Most of the personnel working at the judiciary remain the same of the old autocratic
regime and they may be influenced by local elites, business interests, military
and politicians outside of the legal system (Freedom House, 2010). Bribes are often
paid to influence prosecutions, convictions, and sentencing in civil and criminal
cases...
According to experts, the judiciary’s independence is also hampered by the
persisting intervention from actors from outside the legal system (e.g. powerful
businesses, politicians, etc) who attempt to influence decisions or force the dismissal
of cases.
Considering the judicial system as a whole, challenges to fight corruption are also
faced by prosecutors who are usually confronted by suspects who have both political
power and influence at the local level. Prosecutors are thus often offered bribes
or pressured/threatened to delay or simply close cases.
Or from an article in KutaNews.com:
Practice of the Law Mafia, This is the Modus Operandi
Kutanews - Dirty practices by the law mafia in Indonesia is not new. Various modes
of these practices were discussed by the Justice Monitoring Program Coordinator
LBH Bali, I Made Sugianta, SH.
Judicial mafia practices, said Sugi, starts at the level of the police. “Investigators
frequently used modes such as stopping the investigation after price negotiations
with the suspect,” said Sugi, Friday (20/7). Other modes include manipulating the
BAP (Interrogation) in order to alleviate the indictment alleged. Other modes are
never making the SPDP (Commencement Warrant for Investigation).
“There's also asking for the cost of ‘service’ or ‘operational expenses’ to make
the process go faster. Fact is, not infrequently they also pressure the person reporting
to make peace or to use a particular law office”,
said Sugi.
At the level of the prosecutor's office, a method used is often the practice of
buying and selling criminal charges or claims. “In the case of corruption, a suspect
was summoned to the prosecutor and asked whether the case will be continued or not.
If at that time the potential suspects are willing to pay a certain amount of money
so the case will not be continued,” he said.
“Also negotiating about detention, arranging the trial judges, engineering the trial,
and negotiating a verdict.”
To break the chain of judicial mafia practices, LBH Bali opened Judicial Watch Post.
LBH Bali also consistently campaigns against the practice of the mafia law through
various activities such as public discussions titled Judicial Corruption that took
place recently.
“We also invite the media to get involved in controlling the mafia by watching and
supervising the practice of law through the news,” said Sugi.
The original article is at Practice of the Law Mafia, This is the Modus Operandi - KutaNews.com
Why the police might care that the suspect use a particular law office is not hard
to figure out; they have relationships with certain lawyers. If they expect the
suspect to make a payoff in return for dropping the charges, a lawyer can help negotiate
it.
For an idea of what can happen without a lawyer, the story of Lanjar is interesting:
22 September 2009. Lanjar Sriyanto and his wife Saptaningsih and 10-year old son
are driving on their motorcycle along a busy district road in Karanganyar, Central
Java. They have visited their family for Lebaran and are now on their way home.
Suddenly the car in front of them brakes. The car is too close, Lanjar cannot brake
in time. As they crash into the car, Lanjar’s wife falls off the motorcycle
onto the other side of the road. She falls just in front of a Panther car that is
coming with high velocity from the other direction. The Panther car hits Lanjar’s
wife with such speed that she dies on the spot.
Seven days later two men visit the house of Lanjar’s family. They are the
owner and the driver of the Panther car. Lanjar is away, but they talk to Saptaningsih’s
sister.They offer her 1,5 juta if she signs an agreement not to sue the two men
for their role in the accident. The men leave with a signed letter.
When, two days later, Lanjar goes to the police station to obtain his confiscated
driving license, the police are no longer helpful: they yell at him and tell him
that he will be jailed for killing his wife. That turns out to be no empty threat.
On 9 December the police take Lanjar into custody. He is brought before a court,
where he is told that he is accused of criminal negligence causing the loss of life—an
offense that carries a penalty of five years in prison. When Lanjar hears the accusation,
he has no lawyer besides him, he has no idea how to defend himself against the accusations,
and he is looking at the prospect of not only loosing his wife, but also his freedom.
This is the moment when Mohammed Taufiq hears about the case. This Solo-based lawyer
decides to offer his services to Lanjar. He quickly finds out that the owner of
the Panther Car was a member of local police force. It seems that he had used his
contacts within the police to get Lanjar indicted in order to save himself from
any accusations. On top of this there are indications that the police had also been
extorting Lanjar, as he had been forced to pay one million rupiah to local officers
to buy their ‘cooperation’.
The original academic paper is at Akses Terhadap Keadilan: Access to Law - Ward Berenschot and
Adriaan Bedner
The lawyer Mohammed Taufiq in this story was not an ordinary lawyer, however. He
refused the payoff demands and went to the media and the public to create a national
campaign for justice. The court eventually reached a decision freeing Lanjar and
saving face for the police: Lanjar was convicted of criminal negligence, but freed
from custody with a ruling that the accident was caused by force majeur and
therefore could not be punished.
I personally know of a very similar story occuring to an expatriate living in Bali
who eventually, with the help of a lawyer, reached a deal and paid off the police
to drop charges for the murder of his girl friend who died in a hit-and-run accident.
Collusion - when it is subtle...
There is another type of collusion which is less obvious. In later chapters on Prenuptial
Agreements and Land Purchases we discuss this in more detail, but here is the essence.
Lawyers are often in a position to build themselves future opportunities. If a client
comes to a law office requesting assistence in writing up a contract, a clever lawyer
can set up a “lottery ticket.” There is no guaranteed payoff, but there is always
a chance, and if you have enough lottery tickets you might hit the big one. It works
like this:
An expatriate businessman comes to a law office for help in setting up a joint venture
for a villa project with an Indonesian partner. The expatriate has taken the wise
precaution of seeking independent counsel.
The lawyer needs to work out details with his counterpart and so he contacts the
Indonesian partner’s lawyer. Through a few subtle, or not so subtle, questions he
determines that the business deal is legitimate and the Indonesian partner is not
asking any special favors in the contract—which, by the way, the expatriate’s
lawyer would not be adverse to if requested.
Nevertheless, he leaves a few holes in the contract. His reasoning is this:
- the expatriate does not speak Indonesian well, and does not know Indonesian law,
so he is unlikely to notice that the contract is less than complete;
- if the Indonesian partner is happy with the expatriate partner, no harm done; the
contract will never be tested;
- if the Indonesian partner someday has a falling out with the expatriate partner,
the defective contract will give him an advantage. The expatriate's lawyer will
very likely represent the expatriate in the case, and if so, he can expect a lucrative
deal offer from the Indonesian partner;
- the resolution of the case is most likely that the expatriate will leave Indonesia,
never to return, with no understanding of what had actually happened in his case,
and no way to make complaints.
Writing a defective contract is an all around win for the expatriate’s lawyer.
Beyond collusion - turning a client into a milk cow...
The practice of law can give dishonest lawyers interesting opportunities because:
- Clients come to them trusting in their lawyer’s advice while opening some
of the most vulnerable details of their lives and finances;
- Lawyers know details and procedures of law unavailable to lay persons,
allowing them to obscure their actions behind a veil of expertise;
- Clients often turn over to their lawyers significant control about life decisions, contracts, and handling of cash.
The law office KantorKita in Sanur, Bali, was for eight years one of the most popular
firms in Bali helping expatriates in property, business, and immigration. It collapsed
in 2010, and the owner Julie Edmond—or Esti Yuliani—was sentenced to
prison.
A number of controversies surround Austrindo Law Office, the current most popular
law office in Bali. Despite multiple complaints to the police, Austrindo Law Office lawyers have never been brought
to trial. One account is available here:
Lawyer Ida Bagus Wikantara enjoyed an 11 year run while manipulating his client Ni Made Jati in the Uluwatu cases, but was finally disbared
by PERADI for violations of ethics in 2015: