Real measures badly needed to uphold law (2)<\/p>\n
________________________________________________________________<\/p>\n
This is the second of two articles examining various aspects
\nof law implementation in Indonesia.
\n________________________________________________________________<\/p>\n
By Charles Himawan<\/p>\n
JAKARTA (JP): The warnings of the President, issued within
\nthese last four months, should motivate lawyers to do something
\nconcrete to revive the authority of law.<\/p>\n
The response of the lawyer, however, must be quite different
\nfrom, nor can it be expected to be as prompt, as the response
\ndisplayed by the military in the field of security and order.<\/p>\n
On April 16, 1994, the President said at a working meeting of
\nprosecutors that he was concerned at the many violent crimes
\ntaking place. He urged them to seriously work at solving this
\nproblem (Kompas, April 17, 1994).<\/p>\n
Aware of this concern, the military immediately responded.
\nSeveral \"night operations\" were launched in various parts of the
\ncountry. A great number of guns, knives and bottles of alcoholic
\ndrinks were confiscated.<\/p>\n
These concrete actions bore immediate results in the field of
\nsecurity and order. One can again exercise one's human rights by
\ntaking a walk at night without fear.<\/p>\n
If we investigate further, there are in fact no black letter
\nrules which guarantee any individual can take a safe walk at
\nnight. Many law enforcement agencies, such as the military, the
\npolice and the prosecutors have misunderstood this.<\/p>\n
Human rights violations are often considered identical with
\nviolations of written rules.<\/p>\n
Violations of human rights are in fact more significant than
\nviolations of written rules. The existing written rules are, for
\nexample, the prohibition against threatening somebody with force
\n(Article 368 of Indonesia's Criminal Code), including threatening
\na motorist to extort money from them; and the prohibition against
\nhitting somebody (Article 351); the prohibition against damaging
\nor taking away another's property (Articles 406 and 365), and
\ncertainly the prohibition against homicide (Article 338).<\/p>\n
If preventive actions are taken by the authorities to ensure
\nthat all those prohibitions are adhered to, this means that one's
\nhuman rights (behind those written rules), like taking a walk at
\nnight peacefully, are guaranteed.<\/p>\n
If this right is \"elevated\", it may thus become the human
\nright to live peacefully, which is accepted by the entire world.<\/p>\n
\"Freedom from fear\" was the way that the 32nd President of the
\nUnited States, Franklin D. Roosevelt, put the concept on Jan. 6,
\n1941, in an address to the U.S. Congress.<\/p>\n
After passing through a long process of negotiations, this
\nright became a written rule, announced by the UN in its
\nDeclaration on Human Rights on Dec. 10, 1948 (paragraph 2,
\nPreamble).<\/p>\n
In Indonesia, the long process from the concern of the
\nPresident over the crime rate to being able to take a walk at
\nnight peacefully did eventually take place due to the support of
\nthe Armed Forces.<\/p>\n
This support is clarified by the Chief of the Armed Forces,
\nGen. Feisal Tanjung, during a meeting between the Armed Forces
\nand the Indonesian National Commission on Human Rights in
\nCilangkap (Kompas, April 25, 1994).<\/p>\n
It is true that without such support, nothing much can be
\naccomplished by the National Commission on Human Rights.<\/p>\n
In the field of law, one's right to seek justice cannot yet be
\nimplemented as can his right to take a walk at night. One still
\ndoes not feel safe to seek justice before a judicial court.<\/p>\n
Cases like throwing shoes at the judge and using bank notes as
\nfans during a judicial session will certainly deter one from
\nseeking justice before a judicial court. In a sense these cases
\nactually reflect a situation in which the participants in a court
\ncase are actually not equal before the law.<\/p>\n
One or another of those involved is stronger than the other.
\nIn such a configuration, justice can hardly be secured.<\/p>\n
Contrary to the right to take a walk at night, which is only
\nimplied in laws and policies, the right to obtain justice on the
\nbasis of equality before law is guaranteed by a written rule as
\nembodied by the 1945 Constitution itself (Article 27, paragraph
\n2).<\/p>\n
Perhaps the time is ripe for lawyers to follow in the
\nfootsteps of the military. Concrete actions are needed to ensure
\nequality before law. We must prevent a judicial process which
\nsacrifices justice for other considerations from ever taking
\nplace.<\/p>\n
In the past three moths, several cases, which are not
\nsupportive of the movement to revive the authority of law, have
\ntaken place. Cases in regard to tax evasion and the cause celebre
\nof labor activist Marsinah seem to sharpen the concern of the
\npeople in regard to justice as reflected by Letters to the
\nEditor, (Kompas March 10, 1994).<\/p>\n
And cases like the \"Cengkareng\" incident in which \"borrowed\"
\nprinted material was carried by citizens coming from abroad
\n(Kompas, March 28, 1994) and the \"Surabaya incident\" which
\nforbade citizens from speaking in a seminar (Kompas, May 2, 1994)
\nshould be prevented in order to ensure a better atmosphere for
\nthe enforcement of Article 27 (Item 1) of the 1945 Constitution.<\/p>\n
The tragic irony is that in these cases, two members of the
\nNational Commission on Human Rights were victims.<\/p>\n
Although the lawyers are three months behind the military,
\ncounting from the date of the working meeting of the Supreme
\nCourt on Jan. 23, 1994, perhaps, as one sociologist has pointed
\nout, it is still not too late for the lawyers to harness a high
\nlevel of common will to make the court a repository of law and
\njustice.<\/p>\n
All parties are aware that it is not an easy task to do this,
\nbut concrete actions are needed. One encouraging signal is that
\nthe Supreme Court has decided \"to go back to law\" as its working
\nagenda (Kompas' editorial of April 14, 1994).<\/p>\n
Two main methods could be used to fulfill Article 27 of the
\n1945 Constitution.<\/p>\n
First, spiritually, judges should take a long, close look at
\nthemselves and their actions and do everything they can to ensure
\nthat they develop the high level of integrity hoped for by
\nPresident Soeharto.<\/p>\n
This situation certainly reminds us of the thinking of
\nImmanuel Kant who always marveled at the moral law to be found in
\nhuman beings. Although it may seem difficult to achieve such a
\nmoral law within the conscience of our judges immediately, the
\nSupreme Court could certainly do something toward establishing a
\ngreater sense of ethics among them.<\/p>\n
Second, physically, the members of the Law Society of
\nIndonesia, the judges, the prosecutors and the litigation
\nlawyers, should sit together, discuss and deal with the material
\nproblems faced.<\/p>\n
Perhaps the most prominent and difficult problem to be solved
\nis the level of the real take-home pay of judges.<\/p>\n
Economic development in the last 25 years has shown its
\nbenefits. The quality of life of the people has improved.
\nTherefore the quality of life of the judges, who have such a
\nheavy burden should also be taken into account.<\/p>\n
If we succeed in overcoming both the spiritual and the
\nphysical problems, we are sure to be able to make the judicial
\ncourt a repository of law and justice.<\/p>\n
The writer is a professor of law at the University of
\nIndonesia.<\/p>\n
30<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/real-measures-badly-needed-to-uphold-law-2-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }