Indonesian lawyers combine legal reasoning with a subtle personal touch

Santy Kouwagam

 

There is an old joke about the word hakim (judge). Indonesians tell each other that the word actually means hubungi aku kalau ingin menang – contact me if you want to win. The joke suggests that people can simply buy court decisions. Indonesian newspapers are indeed full with stories about corruption in the judiciary. A number of judges, lawyers, and court clerks have been charged and convicted for corruption. Such stories have led people to believe that court decisions are simply auctioned off to the highest bidder.

In reality the influencing of court cases is much more subtle. Yes, there is a lot of dealing and wheeling going on around Indonesian courtrooms. But these deals cannot succeed if judges are not convinced that they are deciding in accordance with their ‘hati nurani’ or conscience. A successful lawyer also tends to the consciences of judges. Having worked in Indonesia both as a lawyer and as a researcher, I observed that successful lawyers usually combine legal reasoning with a skilled personal touch. Here are six strategies that, in my perception, form a core part of the toolbox that lawyers use to win their cases.

1. Build a network

It is important to become a “family friend” for the judges and court clerks. Being a “family friend” means that you have to establish a long-term relationship with strong feelings of trust. A lawyer needs to attend family functions such as weddings, funerals and other life events, and needs to contribute money during such events. Be helpful to (family members of) your network, provide them with benefits that make them dependent on you, such as a car and/or a house, pay for his/her driver, etc. In other words, you have to become a friend that is as close as, or closer than family.

2. Be blunt about the goals of a court case

It is necessary to define a win in court. Clients usually do not really know or not express what they want to get out of a court case. It is important to get a client to express his or her intentions. Questions like, “do you want money? Land? Or just to make someone’s life difficult?” are important.

3. Use the vaguest legal clauses

Despite all the jokes about judges and money, laws are important. A judge cannot issue a ruling that blatantly contradicts legislation. Fortunately, many clauses in Indonesian Civil and Criminal code are so vague, that you can interpret them in many ways. The vaguer the clause, the better: lawyers prefer to relate their arguments to clauses to give judges (and themselves) plenty of room for personal – and hence: negotiable – interpretation.

4. Appeal to religion

Still, the best lawyers are the ones who convince judges that the favored judgement is really ‘the right thing’. Lawyers need to build an argument about why the action or behavior of the opponent was wrong. This is where religion can come in. Whenever possible, lawyers try to quote articles from religious texts or scriptures to strengthen their case.

5. Use the right contacts, at the right moment

To discuss a case a personal, discrete approach to a befriended judge is critical. This requires tact and timing. A good moment is, for instance, when Idul Fitri is approaching. People usually need extra money at that time to throw parties. And these approaches also need to take place in the right moment of the day, for example immediately after/before the first prayer of the day (this is usually around 5AM), or during morning jogs. The bottom-line is, deliver your argument during a personal time when you can have sufficient opportunity to make your case and enough time to think together about how legal clauses might be used to arrive at the desired outcome. Furthermore, approaching your “friend” during personal time poses less risk of being accused of corruption, and perceptions of conflict of interest might be avoided.

6. Do not deliver money in person

Not all judges can be influenced by money, but handing out ‘gifts’ is a part of the toolbox of lawyers. After such a successful approach to an insider ‘friend’, lawyers avoid delivering money in person. They always try to find creative ways to give their ‘present’ to him or her. This might be, for example, jointly establishing a new company, or by making an investment in his or her company. A donation to a charity held by a family member is also a preferred method. In any case, lawyers go to great length to avoid direct transactions.

All these six ‘strategies’ require skill and tact. This is partly what makes a lawyer successful. These aspects of the everyday functioning of lawyers rarely get talked about, except in the form of the hushed advice that a senior lawyer gives to a junior apprentice. I have written them down here to rethink the approach in discussing about (judicial) corruption. To me, this list evokes a wider question: how can we grasp, let alone tackle corruption when personal connections form such a central element of the ways in which institutions operate? The legal term “corruption” as a criminal act needs to be redefined. A more fit-for-Indonesian context means either it needs to be more specific, more certain, or broader, which will have to be discussed and developed both by jurists and civil society. The definition now does not fit well with Indonesian socio-cultural conditions. Everybody is (or at least can be accused of) using public office for personal gain. In this way, corruption as a legal term is now just a political tool.

 

 

Santy Kouwagan is a PhD researcher at the Van Vollenhoven Institute, Leiden University. She has been working as an international lawyer and legal consultant at a private law firm in Indonesia and has handled numerous cross-border cases and commercial transactions. Her current research focuses on business and legal strategies in corporate litigation about land.