The
Judicial Commission (“Komisi Yudisial”)
A judicial commission
law was enacted in 2004 and amended in 2011.
The Judicial Commission was established, as required by the third round of
amendments to Indonesia’s constitution, introduced in 2001. The Judicial Commission is an independent government institution and free from
any interference by other parties in performing its authorities.
The registered office of Judicial Commission is on the capital of the Republic
of Indonesia.
The Judicial Commission has the following authorities:
a.
to give recommendation for the
appointment of the supreme judges and ad hoc judges in Supreme Court to People
Representative Council /Dewan Perwakilan
Rakyat (“DPR”);
b.
to protect and uphold the honor,
dignity, and the behavior of the judge;
c. to determine the code of conduct and the
behavior guidance of the judge (“Code of
Conduct”) together with the Supreme Court;
d.
to supervise and uphold the
implementation of the Code of Conduct.
The Judicial Commission
has seven members drawn from two former judges, two legal practitioners, two
legal academics and one society member.
The Judicial Commission shall responsible their to the public via DPR.
The
Authority to Determine Code of Conduct
The Judicial Commission
and the Supreme Court have the authority to determine the Code of Conduct
together for judge. The Judicial Commission shall supervise and uphold the
honor, dignity, and behavior of the judge under this Code of Conduct.
The Judicial Commission
and Supreme Court have determined Code of Conduct under Jointly Regulation No.
047/KMA/SKB/IV/2009 and No. 02/SKB/P.KY/IV/2009 on Code of Conduct and Behavior
Guidance of the Judge (“Joint Regulation
Concerning Code of Conduct”). Every judge shall obey and perform the Code
of Conduct as stipulated in Joint Regulation Concerning Code of Conduct.
Code
of Conduct
As stated in Joint
Regulation Concerning Code of Conduct, the main principles of Code of Conduct
are implemented in the following rules of conduct:
a. to
behave fairly
With respect to fair behavior, any
person, who has performed its duty and profession in the court, shall have the
responsibility for enforcing the law with fairly and properly, and fair
behavior without discrimination to any person. Based
on this Code of Conduct, judge shall behave fairly in order to perform its duty
and profession as judge in court.
There are some actions as the
realization as the fair behavior, as follows:
i.
the judge shall perform their judicial
jobs by obey the presumption of innocence (asas
praduga tak bersalah) and without
expecting any compensation;
ii.
the judge shall avoid anything that
potentially may affect to the revocation of its right to examine the case in
the court;
iii. the judge shall not to show any attitude
either dislike or like or discrimination to any party in performing their
judicial jobs in the court;
iv. the judge shall provide the equal
opportunity to anyone, especially the person who seek the justice.
v.
The judge shall not have any
communication with the dispute party outside the court.
vi.
The judge shall provide the justice for
anyone and not only intend to punish some people.
b. to
behave honestly
The honesty has meaning that any judge
shall have to express:
i.
true for something that is true;
ii.
wrong for something that is wrong.
Some action as the realization of the
honest behavior as follows:
i.
the judge shall have the honest behavior
and avoid the despicable action;
ii. the judge shall not receive any gift,
rewards, facility, discount, promises, inheritance, or any other gift in any
form from anyone with the purpose for influence the judge in performing their
judicial jobs.
iii. The judge shall report in written for
any gratification received the judge to Corruption Eradication Commission (“KPK”), the young head of the supreme
court supervision, and Head of Judicial Commission within 30 (thirty) business
day since the gratification received date.
iv.
The judge shall grant its asset report
to KPK and agree to be inspected its asset before, during, and after serving as
the judge.
The
judge may receive reward or compensation fee for any activities performed other
than its duty as a judge in the court (extra
judicial) from any party who does not have any conflict of interest,
provided such gift, rewards, and/or compensation shall not influence the jobs
and case examined by judge in the court.
c. to
behave wisely;
Wisely shall mean the judge shall act
based on the norms prevailed in the society and consider with all of the impact
of its act. The wise act may encourage the establishment of the personal with board-minded,
high tolerance, patient and polite.
d. be
independent;
Independent shall mean the judge can
perform and conduct their jobs and duty by individually without any support
from the other party, free from any intervention and influence from anyone. The
purpose of this independent act is encouraging the establishment of the judge
behavior into strong, having orientation to the truth under the prevailing law
and moral requirement.
e. high
integrity;
Integrity shall mean the judge shall
have the act and attitude that complete, commanding, honest, unmovable. The
purpose of high integrity is encouraging to establish the loyal and strong
attitude under the prevailing norm in order to perform their action. If the
judge has high integrity, this high integrity will encourage for the
establishment of the personal who has the courage to reject the temptation and
any intervention in order to enforce the righteousness and justice, and always
to perform their duty with the best effort for reaching the best purposes.
f.
responsible;
Responsible shall mean the willingness
for conducting their jobs and duty with best effort, and having the courage to
responsible any impact or affect incurred by the performing of their duty and
jobs.
g. uphold
the self esteem;
The
self esteem shall mean that the dignity and security inside the human being
must be pretend and upheld by anyone.
The
principle of uphold self esteem shall encourage and establish the strong and
powerful personal, so it may establish the personal who always respect the
honor and dignity as the court apparatus.
Base on the Code of Conduct, the
realization of this principle are:
i.
protecting the prestige and dignity of
the court and the profession either inside or outside the court;
ii.
prohibited to involve in any business
activity exploiting and potentially using their position and status as judge.
This prohibition shall not be performed by judge and its family member;
iii.
prohibited for having double profession under
the prevailing law and regulation.
iv.
The former judge is not suggested to
become advocate within two years since the retirement or dismissal date as
judge.
h. High
Discipline
Discipline shall mean the adherence of
the norm or rule in order to perform the mandate and trust from any society
members who seek the justice. High discipline shall encourage the establishment
of the personal who has discipline in their jobs, sincere in devotion, the
effort to become a role model in their environment, not misuse the mandate provided
to them.
Based on the Code of Conduct, the
realization of high discipline are:
i.
knowing, exploring, and performing their
main jobs pursuant to the prevailing regulation, so the judge may apply and
enforce the law with correctly and provide the justice for anyone who seek the
justice.
ii.
respecting the right of the party in the
court and creating the case examination with simply, rapidly, and low cost;
iii.
supporting the party and solving the
obstacle for creating the simple, rapid, and low cost court in according to the
prevailing law and regulation.
i.
Being Humble
Humble shall mean the sense of having the
limited capability, feeling far away from perfection, and avoiding from any
pride.
The purpose of the humble is encouraging
the establishment of personal with having attitude such as: realistic,
intention for learning, respecting the other argument, encouraging the tolerant,
creating the modesty, gratitude, and sincere attitude in order to perform its
duty.
Base on the Code of Conduct, the
realization of being humble are:
i.
conducting the job as sincere dedication
and mandate to be responsible to God. The job as the judge shall not seen as
the occupation that is receiving salary or any material;
ii.
having any attitude to seek any
popularity or award from the other party.
j.
Being Professional
Professional shall mean the moral
attitude which is based on the willingness for performing the chosen work earnestly
with the support of its expertise under science, skill, and board insight.
The realization of professional are:
i.
taking the step to maintain and increase
the knowledge, skill, and personal quality for performing the duty in the court
with very well;
ii.
having the first priority for performing
its judicial jobs professionally other than any activities;
iii.
avoiding the error in creating the
decision or making the decision that intentionally providing the advantageous
to the defendants.
The
Authority to Protect and Uphold the Honor, Dignity, and Behavior of the Judge
In order to protect and
uphold the honor, dignity, and behavior of the judge, the judicial commission
has the following task:
i.
monitoring and supervising behavior and
act of the judge;
ii.
receiving the report from any member of
the society relating to the violation of the Code of Conduct;
iii. verifying, clarifying, and having
investigation to any report relating to the alleged violations of the Code of
Conduct (“Report of Alleged Violations”);
iv.
Deciding, either guilty or not,
regarding the Report of Alleged Violations;
v. Performing any legal action or the other
action to anyone, group, or legal entity who does not respect to the honor and
nobleness of the judge;
If there is any
allegation of the Code of Conduct violation, the judicial commission may ask
and request the support to law enforcement apparatus for tapping and recording
the conversation.
In order to perform
their tasks as mentioned above, the Judicial Commission shall obey the
provision in Article 20A section 1 Law No. 22 of 2004 as follows:
i.
to adhere and obey the prevailing
regulation;
ii.
to enforce the Code of Conduct;
iii. to keep confidentiality for any
information as classified as the confidential information which is received
based on its position as the member of the Judicial Commission;
iv.
to protect the independence and freedom
of the judge;
The Judicial Commission
may (1) receive the report from the society and/or information regarding the
allegation of the Code of Conduct violation, and (2) ask the information and
data to the any court and/or judge.
If the Judicial
Commission has finished the examination, the Judicial Commission may provide
the following result:
i.
the alleged violation is proven;
ii.
the alleged violation is not proven.
If the alleged
violation is proven, the judicial commission provides the recommendation
regarding the penalty to be received by the judge to the Supreme Court. There
are 3 types of punishment that may be received by the judge, as follows:
i.
light sanction;
The
light sanction is including:
a. verbal
warning;
b. written
warning;
c. written
statement for expressing not satisfied.
ii.
middle sanction;
The
middle sanction is including:
a. the
postponement of the salary increases for the maximum period until one year;
b. the
reduction salary in the amount as equal to one time of the salary increases
periodically with the maximum period until one year;
c. the
postponement of the promotion with the maximum period until one year; or
d. the
judge without having any authority to perform their judicial jobs in the court
(Hakim Non-Palu) within 6 month.
iii.
severe sanction.
The
severe sanction is including:
a. the
release of the structural position;
b. Hakim Non-Palu with
the period from more than 6 month until 2 years;
c. temporary
dismissal;
d. permanent
dismissal with retirement right;
e. permanent
dismissal without retirement right.
The Supreme Court has
the authority to provide the sanction to the suspected judge that performing
the Code of Conduct violation within 60 days since the recommendation received
by the Supreme Court, except the sanction in the form of the permanent
dismissal.
If there is any dispute
between the Judicial Commission and the Supreme Court regarding the grant of
penalty as suggested by the Judicial Commission, The Supreme Court and Judicial
Commission shall examine the Report of Alleged Violations together. Such
examination does not include the penalty in the form of dismissal of the judge. The
process of such examination shall be performed privately and result of the
examination is confidential.
If there is no mutual
consent /approval regarding the sanction within 60 days as stated above
and the Supreme Court has not enforced
such recommendation, the judicial commission’s recommendation shall be
effective automatically and enforced by the Supreme Court.
The
Assembly of Honorary Judge
For the permanent
dismissal, the judicial commission shall provide the recommendation to the
assembly of the honorary judge. The
Assembly of Honorary Judge is the self-defense forum for the suspected judge
with respect to the examination result stating that (i) there is any violation
to Code of Conduct by the suspected judge and (ii) the suspected judge is
suggested to be dismissed as the judge. The
assembly of the honorary judge shall examine and decide the alleged violation
of Code of Conduct as provided and recommended by the Judicial Commission.
If the assembly of the
honorary judge has decided the suspected judge is convicted violating the Code
of Conduct and shall be provided the sanction as recommended by the Judicial
Commission or Supreme Court, the Supreme Court shall enforce the decision
issued by the assembly of honorary judge. When
the alleged violation is not proven, the assembly of honorary judge shall
rehabilitate the good name of the judge.
Report
Regarding the Alleged Violation
The Judicial Commission
has the task to receive and investigate the report from any society member with
respect to the alleged violation. For reporting the alleged violation, any
society member shall report the alleged violation pursuant to Judicial
Commission Regulation Number 2 of 2015 concerning Handling Society Report (“Judicial Commission Regulation”).
If the complainant
wants to report any violation of the Code of Conduct, the complainant shall:
a.
submit the report pursuant to Judicial
Commission report;
b.
fulfill the request of the Judicial
Commission for following the report;
c.
submit the supporting evidence of the
report.
When the complainant
wants to submit the report to Judicial Commission, the complainant shall
fulfill the following requirements:
a.
the report shall be addressed to the
chairman of the judicial commission;
b.
the report shall be submitted in written
or digital form restored in storage media;
c.
the report shall be made in Indonesian
version;
d. the report shall contain at least: (i)
the identity of the complainant, (2) name and the location where the reported
party is placed, and (3) the main topic of the alleged violation;
e.
the report shall be attached with (i)
the copy of the complainant identity card, (ii) power of attorney, and (iii)
evidence for supporting the report;
f.
the report may be sent by fax, online,
and post.
With respect the report
submitted by the complainant to Judicial Commission, the complainant has the
following right:
a.
providing the confidential guarantee for
the reported information;
b.
obtaining the reporting service
standard;
c. obtaining the handling service report,
information about the progress of the report, notice about the final result of
the report handling, and the decision of the judicial commission.
d.
complaining the performance of the
report handling; and
e.
performing the revocation of the report.
The procedure of the alleged violation report
examination as follows:
a. Verification of the Report;
For
every received report, the preliminary handling team of Judicial Commission
will verify the report pursuant to the report requirements as mentioned above.
If
the report has not fulfilled the requirement of the report, the preliminary
handling team may request clarification and the fulfillment of the report
requirements to the complainant.
The
complainant shall fulfill the clarification request and requirements as
requested by the preliminary handling team within 30 (thirty) days since the
request letter received from the preliminary handling team. If the complainant
do not fulfill the clarification and requirement request, the Judicial
Commission may express the report cannot be received by the Judicial
Commission.
The
verification process shall be finished in the following conditions:
i.
the report has fulfilled the
requirements for the registration;
ii.
the report is not as the part of the
Judicial Commission’s authorities and duty;
iii.
the report is not fulfilled the
requirements within the period provided; or
iv.
the report is revoked.
b. The Examination of the Complainant,
Witness, and/or the Expert Witness
The
advanced handling team shall analyze the report that has fulfilled the
requirement of the report. The advanced handling team will call for the
complainants, witness, and or the expert witness by written notice in order to
examine the report. The
examination of the complainant, witness, and/or expert witness shall fulfill
the following requirements:
i.
The examination shall be performed in
privately and confidential;
ii.
The examination shall be performed in
the Judicial Commission office or other place determined by the examination
officer;
iii.
The examination shall be performed be on
business day, except for certainty purpose, the examination shall be performed
other than business day; and
iv.
The examination may be performed
individually or together, if there are more than one complainant, witness, and
or expert witness.
The
advanced handling team shall make the preliminary examination report and explain
such report the panel session (“Sidang
Panel”).
c. Panel Session
The
panel session shall be performed by the assembly consist of 1 chairman and 2
members.
The panel session shall be performed privately and confidential. Based
on the examination of the panel session, the panel session may decide with the
following decision:
i.
The report cannot be followed; or
ii.
The report can be followed.
d. The examination of the reported
party
When
the report is decided to be followed by panel session, the reported party may
be examined and called for further examination of the received report. Panel
session will appoint the member of the Judicial Commission to examine the
reported party.
The reported party will be assisted by the advanced handling team. The result
of the reported party examination shall be made in the examination result
report.
e. The Plenary Session
This
examination result report will be explained to the plenary session by the
member appointed by the panel session.
The plenary session will be performed by the assembly consist of 7 or 5 members
of Judicial Commission. The
plenary session will grant one of the following decision:
a. the
reported party is convicted performing the Code of Conduct violation; or
b. The
reported party is not convicted performing the Code of Conduct violation.
When
the reported party is convicted the code of conduct violation, the plenary
session shall decide the sanction. But, the panel session shall rehabilitate
the good name of the reported party, when the reported party is not convicted
of violating the code of conduct.
