Perception and Reality

It seems that the recent survey by the Political and Economic Risk Consultancy Ltd (PERC) that ranked Indonesia as the worst of the 12 Asian countries surveyed has raised an interesting debate about the reality of perception and the perception of reality.

The survey per se is not all that controversial as it asks those surveyed for their opinions based on their perceptions. However, what the survey has done is to highlight how perception and reality can diverge. The survey has also highlighted why perhaps some of those Indonesian institutions who have embarked on comprehensive programs of reform might want to also consider getting some public relations help in order to highlight these reforms in the public domain.

Arsil, a researcher from Lembaga Independensi Peradilan (Institute for an Independent Judiciary / LeIP), which focuses exclusively on judicial reform in Indonesia holds a similar opinion. Arsil feels that the results of the survey highlight the disgraceful reputation that the judiciary and the judicial system have in Indonesia. Nevertheless, Arsil was quick to note that the survey was more about perception than anything else and perception is a reflection of the ability of the courts to management their public communications. The simple philosophy here is that it the courts better manage the flow of information about itself then the public will have access to better and more accurate information on which to base any future judgments or perception.

The courts have been subject to significant judicial reform and this process of reform is ongoing. However, Arsil sees a critical mistake and that is how the Supreme Court manages the reform process internally and then projects this information to the broader public. The reality is that the public can only form their perceptions based on the information that they have at their perusal.

Not all of these reforms have a direct impact on the public and an example of this is a Decision by the Chief Justice contained in Decision No. 144 of 2007. This Decision was the first of its kind for an Indonesian institution and required a greater level of transparency in court processes. Even though the focus of the Decision was internal transparency within the courts it would have nonetheless been good public relations for the court. However, it was decided that because the Decision had no direct impact on the public then it was not necessary to promote this reform publicly.

Clearly the party most responsible for changing the image and consequently the perception of the Supreme Court is the Supreme Court itself. Unfortunately, to date the Supreme Court has been what can best be described as passive. In contrast the police have been active in publicly promoting police reforms. However, the lag time between publicly promoting reform and a change in perception is considerable.

The reality is that there is a distinct connection between the perception of the institution and the public’s trust in that institution. Poor perception means a low level of trust. This in turn leads to a credibility problem in that the public does not see the institution as being credible with regard to its primary function. In the case of the Supreme Court this means that the negative perception results in a belief that the Court is not a credible law enforcement agency.

Mas Achmad Santosa, a highly regarded legal practitioner active on law reform matters, stated that he can see the survey itself from two perspectives. First, he sees it from the perspective that any law or judicial reform efforts undertaken by the Supreme Court are yet to yield any concrete results with respect to public perception. Second, poor public communication in terms of self-promotion of the initiatives undertaken and the successes achieved.

To overcome this it is clear that the Supreme Court needs to do two things according to Mas Achmad Santosa. Firstly, an internal evaluation of the reforms undertaken to date and a catalogue of successes created. Secondly, there needs to be a communication strategy developed so that the Supreme Court can better promote the reforms undertaken. It is thought that the best means of developing a successful communication strategy would be to work with the Department of Communication and Information or perhaps even the Indonesian Capital Investment Coordination Board (Badan Koordinasi Penanaman Modal / BKPM).

The BKPM might seem like a strange choice. However, as Mas Achmad Santosa points out, part of the BKPM’s role is to provide a source of information to current and potential capital investors in Indonesia about the legal framework, the degree of legal certainty, and the legal system in general. It is well within reason that the BKPM as part of this information strategy also publicize court reforms, particularly if there is an impact on business.

In a purely business sense the failure of the courts generally and the Supreme Court specifically to successfully communicate reforms means that the impact of surveys such as this one can be far-reaching. Investors will think twice before investing in Indonesia if they take the results of this survey at face value. An under-performing and corrupt legal and judicial system is most likely to be seen as a hindrance to good business. To overcome this potential problem the court must ensure that reforms remain on track and a communication strategy must be developed as a matter of urgency.

To this end Mas Achmad Santosa provided an example of where the Head of the Religious Court had been sanctioned for an indiscretion. The sanction itself highlights that the Supreme Court is more serious than it has been in the past to clean up its image. However, the fact that the sanction was never communicated to the public meant that the public knows nothing of the sanction. The question is then, “how can the perceptions of the public towards the courts change if the reforms and sanctions are never communicated?”

Mas Achmad Santosa is still hopeful that the Supreme Court can develop this communication strategy and better inform the public of the progress being made.

Interestingly, not all people agree that there is a difference between the reality and the perception when it comes to the performance of the courts. Emerson Yuntho from Indonesian Corruption Watch (ICW) was unequivocal in stating that the results of the survey not only reflect the perception but are close to the truth. In Emerson’s view the idea of controversial verdicts and corruption in the court system or the judiciary is not a perception but a fact and consequently the perception and the reality are the same. One of the key problems that Emerson sees is that the courts themselves are not taking these matters seriously and cites the fact that judges who accept bribes and are guilty of other misconduct are, at best, subject to administrative sanctions. Therefore, when people see judges getting away with merely administrative sanctions then public confidence in the judiciary is eroded even further.

Emerson was far more skeptical when questioned about Supreme Court reform. When asked about this Emerson answered the question with a question, “what has the Supreme Court done?” In his opinion the only reforms of note have been with regard to ‘openness’ of information and that this reform has only occurred because of donor pressure. Emerson was certain that when donors stopped funding reforms and pressuring the court to undertake reforms that these ‘reform’ programs would cease automatically.

This suggests that there is no real intent to reform within the court or judicial system, but rather talking reform is all about getting money through aid programs directed at law reform.

Judicial Reform in Indonesia

A recent survey by the Political and Economic Risk Consultancy Ltd (PERC) has ranked Indonesia as the worst of the 12 Asian countries surveyed. The survey by PERC suggests that the Indonesian judiciary is the weakest and perhaps most controversial of Indonesia’s institutions. This is in essence the crystallization of public opinion on the idea that law enforcement in Indonesia is the number one problem faced by the country. According to PERC some of the decisions made by the courts have been “so controversial that they have seriously hurt confidence of foreign companies”, however PERC did not provide any specific examples with regards to which cases it considered controversial or sapping of foreign confidence in the system.

PERC is a Hong Kong-based consultancy. The survey asked 1,537 corporate executives working in Asia to rate the judicial systems in the countries where they reside. The basic variables used included: the protection of intellectual property rights (IPR), corruption, transparency, enforcement of laws, freedom from political interference, and the experience and educational standards of lawyers and judges were also considered.

“Year after year, our perception surveys show close correlation between how expatriates rate judicial systems and how they rate openness of a particular economy,” PERC said. “Better judicial systems are associated with better IPR protection, lower corruption and wealthier economies.” explain PERC.

Interestingly, a survey by a Hong Kong-based consultancy has found that Hong Kong rates the best with a score of 1.45 on a scale 0-10. In this survey a score of 0 is the highest possible score and 10 is the worst possible score. Hong Kong was followed by Singapore (1.92), and then Japan (3.50). Indonesia ranked last with the lowest score of 8.26. Vietnam came in slightly higher than Indonesia with a score of 8.10 and China (7.25) was almost a point better than Vietnam.

The PERC survey would seem to confirm the results obtained in Transparency International Indonesia’s (TII) survey of December 2007. The TII survey also ranked Indonesia’s judiciary as one of the most corrupt institutions of State considered in the survey. The most corrupt in the TII survey were the police. Similarly, a recent survey by the Corruption Eradication Commission (KPK) also had the Indonesian Court system as the second most corrupt institution in the State. The only difference being that the KPK had the Office of the Public Prosecutor as the most corrupt.

Aria Suyudi, Executive Director of the Center for the Study of Law and Policy (PSHK), said of the TII survey, that the results reflect the public’s perception of the courts. Aria went on to explain that the perception is different perhaps from the reality because most of those surveyed were not familiar with the legal and judicial reforms going on at the Supreme Court. Therefore, there was also little surprise from Aria that the PERC survey also found the Indonesian judiciary to be wanting and the worst in Asia as the results seem to be based on questions relating to perception of the system rather than the reforms taking place. Simply, those surveyed, whether they be corporate executives or investors, are just not sufficiently well-informed of the reforms taking place in the judicial system, according to Aria.

Furthermore, Aria highlighted that the perception is an old one and fails to take into account the progress made by the court system as a whole and more specifically the Supreme Court. Aria cited the example of the Supreme Court decision database. The Supreme Court decision database is an online database of Supreme Court decisions that can be accessed by the public.

Hasril Hertanto, Secretary General of Masyarakat Pemantau Peradilan Indonesia (Indonesian Judicial Watch Society / MAPPI), had a similar opinion to that of Aria, and stated that the system in Indonesia is not the worst. It must be noted that Hasril acknowledged that the system was not excellent either but just OK. For Hasril it was not so much the system that is inadequate but rather the inadequacies lie with those who are tasked with running the system. According to Hasril it is the human resources that are not sufficiently prepared and as such do not have the capacity to run the judicial system. This lack of preparedness has meant that corruption has not been completely eradicated and as such the mistrust remains as do the negative perceptions of the system.