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Deeper into the morass

To write opinion pieces, a journalist must be an incurable optimist. Although social and political criticism is generally written when one is pissed off about something, the fact remains that the very act of writing the piece is an indication of hope for improvement. It’s a lonely and frustrating exercise, though. For example, five years after the following was written, the situation has not improved at all; in fact it has gotten progressively worse with no sign of improvement.

Published in The Jakarta Post (http://www.thejakartapost.com)

Law reform needed to clear the backlog of cases
The Jakarta Post , Jakarta Fri, 04/30/2004 8:54 AM Opinion
Patrick Guntensperger, Jakarta

It is to be hoped that a new Indonesian government will make an effort to address the somewhat chaotic state of our legal system; we are all painfully aware that there is significant room for improvement. The current problems with our present system can be said to fall into three basic and often overlapping categories.

In the first place there are the problems that exist with the actual legislation; that is, the occasionally contradictory nature of some of our laws, their constitutionality, their ambiguity, and their consistency with religion, with morality, with natural law and with the will of the people. Secondly there are those problems that exist as a result of KKN. The corruption within the civil and criminal justice systems leads to unjust decisions, inconsistent interpretation of the law, unbalanced and unequal access to the courts and a general mistrust of the system. Finally, there are the problems with the administration and structure of the system itself.

Much has been said on the first two issues, in this column and elsewhere, and there is much more to say, but the question of the administration and mechanisms of the legal system could also bear some scrutiny. Inefficiency, backlogs of dockets, unreasonable delays and hasty and haphazard attention to detail can result in the denial of justice to litigants as surely as bad laws and corrupt judges. To ensure access to justice, equitable distribution of services and to increase confidence in the system, reform of the administrative aspects of the justice system, while less glamorous, is as critical as the drafting of legislation and the eradication of corruption.

The most effective way of relieving the stress on the courts is to encourage the settlement of litigation without the necessity of a trial. The best way to achieve this (in civil court, at least) is to provide an effective mechanism for mediation, settlement and follow-up of legal claims. While the National Mediation Board is a manifestation of a good idea, its role within the judicial system should be modified and expanded.

A more extensively used system of settlement conferences is needed to help alleviate the backlog of cases waiting for a trial date in Indonesia’s civil courts. These settlement conferences should be scheduled and managed by the civil justice administration. The procedures themselves should be quasi-judicial in nature, and if they are administered well, they will have a noticeable and salubrious effect on the dispensation of justice from the moment they are instituted.

The settlement conference should be a required step in any litigation. Although in most instances, litigants will have made some attempts at arriving at an out-of-court settlement before the claim was filed, in most jurisdictions the settlement conference is where the vast majority of civil cases are laid to rest. The formal settlement conference works because it brings in an objective third party with a legal background in order to mediate and perhaps arbitrate a settlement but without the authority to adjudicate.

The mediator at a settlement conference should be a layperson with some formal legal training for a number of reasons. A layperson is at least as likely to have a good grasp of the principles of natural justice and fairness as any judge or lawyer. On the other hand, the conference is an intermediate step between a private discussion and a formal trial, so some degree of formal training would be required. That legal background is also critical for the secondary function of the settlement conference.

The conference can also streamline the system by acting as a forum for the discovery process. Discovery, as the word is used in the world of litigation, is that process by which the opposing parties disclose the basis of their cases and the evidence they will use to support them. In order to make this work at a settlement conference, the parties would be required to provide a complete list of all evidence they intend to rely on at trial.

By combining discovery with an attempt to settle, a number of things are accomplished. In the first place there is a good chance of avoiding a trial altogether…a real benefit. Secondly, with a knowledgeable mediator presiding, inadmissible, irrelevant and unpersuasive evidence can be excluded, thereby wasting less of the court’s time at trial, should the matter proceed that far.
A settlement conference also allows for more creative solutions to a claim than the traditional damage award that could be expected at trial. The conference allows the parties to air grievances, defenses and justifications. In a surprising number of cases that’s all the litigants really want. A formal trial can thus be avoided. Just the same, the terms of a negotiated settlement, once agreed to at a conference, would be recorded, registered with the court and rendered as enforceable as any judgment handed down after an actual trial.

Not incidentally, there is another advantage to maximizing the use of the settlement conference in the Indonesian justice system. An enforceable settlement arrived at by mediation rather than as the result of a trial reduces the likelihood of a favorable court decision being available to the highest bidder.
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