Political will for law reform<\/p>\n
Budiono Kusumohamidjojo, Jakarta<\/p>\n
It is redundant to state that Indonesia finds itself in a
\nlegal crisis, which makes it pertinent to ask why and how the
\ncountry could manage to exist six decades following its political
\nindependence and simultaneously experience a constant
\ndeterioration in its legal system?.<\/p>\n
The answer to this question is elusive, but one thing is for
\nsure: the long-lasting regimes of president Sukarno and president
\nSoeharto were both marked by a lack of will to seriously develop
\nthe legal system in order for the country to comply with the
\nrequirements of a modern state.<\/p>\n
They each had good reasons for such neglect. President Sukarno
\nwas busy trying to \"build a country out of nothing\" as was once
\nsaid by Daniel Lev. Sukarno had his hands full with nation-
\nbuilding almost throughout his entire time in office. Meanwhile,
\npresident Soeharto was kept busy trying to rescue Indonesia's
\neconomy from virtual bankruptcy and liberating the country (but
\nnot necessarily its people) from poverty.<\/p>\n
Following a turbulent period of social and political
\ntransition that marked the post-Soeharto era, to the astonishment
\nof the international public Indonesians managed to conduct an
\nopen, democratic and direct electoral process that resulted in
\nthe elevation of President Susilo Bambang Yudhoyono as the sixth
\npresident of the Republic.<\/p>\n
The new President said that his first 100 days in office would
\nserve as a trial run for his ability to deliver the basic
\nexpectations of the people. The Aceh tsunami late in December
\n2004 became his real testing ground although it was completely
\noutside of his 100-day agenda. It would be unfair to judge his
\naccomplishments merely based on this alone.<\/p>\n
While the Aceh disaster has drawn international help due to
\nthe tremendous scale of destruction, Indonesians will need to
\nstand on their own two feet as regards law reform and effective
\nlaw enforcement. Indonesians seem to have learned something from
\nhistory by holding peaceful and orderly direct presidential
\nelections in September 2004 for the first time ever.<\/p>\n
With 60 percent of the vote, Indonesians granted President
\nSusilo's government indisputable legitimacy to establish good
\ngovernment. Indeed, Susilo's administration decided to place law
\nreform and law enforcement, along with economic reconstruction,
\nhigh on its agenda. Nonetheless, it soon turned out that
\nimplementation would be quite a different story.<\/p>\n
Approaching the completion of its first year in office in
\nOctober 2005, we have yet to see the law being enforced as it
\nshould be or how a clear direction for the development of the
\nlegal system is being set. We should admit that President Susilo
\ncannot be expected to do the job on his own and that no single
\nstrike will on its own be enough to successfully accomplish such
\na challenging mission.<\/p>\n
The establishment of the Constitutional Court and Judicial
\nCommission, for example, could prove to be pivotal in the
\nstructural development of Indonesia's legal institutions. This is
\na welcome development as the judiciary should always serve as the
\nultimate bastion of justice.<\/p>\n
A problem that is ubiquitous in countries still struggling
\nwith their legal systems is that the law enforcers and the
\njudiciary are frequently hampered in their professional
\nindependence. Rather than a strict separation from the political
\nprocesses, they are merely only slightly removed by a Chinese
\nwall that naturally allows vested political interests and
\nbickering to permeate into the realm of the law at the cost of
\njustice and legal certainty.<\/p>\n
A decisive government determined to uphold the law is
\nabsolutely essential. Needless to say, every government has a
\npolitical mission to accomplish, but, as Marcus Tullius Cicero
\nargued as early as the 1st century, no government is legitimate
\nif it does not work to uphold the law and establish justice.<\/p>\n
Consequently, legitimate governments should be dedicated to
\nthe same objectives, and differ from each other only in their
\nrespective strategies. An implication of this is that they must
\nhave the political will to transparently uphold the law and
\nestablish justice.<\/p>\n
It is well understood that enlightened governments in
\ncountries that are yet to establish a functioning legal system
\nface a daunting challenge from powerful stakeholders enjoying the
\nbenefits of a dysfunctional legal system and widespread
\ninjustice.<\/p>\n
Accordingly, such enlightened governments must do their utmost
\nto ensure the establishment of a functioning legal system that
\nensures the upholding of the law and establishment of justice.
\nThere is no doubt that to win such a fierce fight they will
\nrequire boundless courage. But that is indeed a key qualification
\nfor one who is determined to govern a country, even more so if
\nthat country is Indonesia.<\/p>\n
Rather than questioning the legitimacy of Susilo's government,
\nIndonesians prefer to watch him work towards goals that are
\ncommensurate with their expectations. To date, the President
\nstill has a lot of leeway to demonstrate his determination to
\ndeliver on his promises up to September 2009. Those achievements
\nwill depend on political will, over which nobody has control save
\nfor the President himself.<\/p>\n
For the President to put his political will into effect, he
\nmay well need to resort to some policies that might not be
\npopular and which could cause him problems in the polls. At this
\npoint, we would do well to remember the old East Java saying jer
\nbasuki mawa bea, or sacrifice is a prerequisite for prosperity.
\nTherefore, to the extent that his policies are justifiable, the
\nPresident should be able to rely on the public's understanding
\nand support.<\/p>\n
The writer is a senior partner with the law firm of Soebagjo,
\nJatim and Djarot in Jakarta.<\/p>",
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