Concrete measures to ensure the authority of law

Concrete measures to ensure the authority of law

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This is the first of two articles examining various aspects of
law implementation in Indonesia.
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By Charles Himawan

JAKARTA (JP): During the 11th Congress of the Judges
Association on April 18, 1994, President Soeharto asked the
judges to do some introspection and open themselves up to
criticism in regard to their own deficiencies.

This attitude is of paramount importance to make the judiciary
a place of hope and a depository of law and justice (Kompas,
April 19, 1994).

Earlier, a similar view was aired. During the national working
meeting of the Supreme Court, the President remarked that for the
sake of development, it is absolutely necessary to observe and
uphold the law (Kompas, Jan. 23, 1994).

This observation should certainly be applied to the other
actors in the judiciary as well, for example, the prosecutors and
the trial lawyers.

In addition to those two observations, which are directly
linked to the problem of the authority of law, there are two more
observations which have a great bearing to this end.

The first was made on the occasion when the President
instructed related ministries to find out why Indonesia's trade
surplus was declining (Kompas, May 5, 1994).

There is certainly a great possibility that this decline is
caused by the poor implementation of law in Indonesia, hence the
lack of the authority of law.

The second observation was made on the occasion of the opening
of the G-15 Non-Aligned Movement Conference in New Delhi.
President Soeharto warned us that for the mutual benefit of the
North-South relationship, the South should "approach" the North
rationally and realistically (Kompas, March 29, 1994).

In the field of economics, such an approach appears to have
been made steadily and consistently. In the field of human
rights, it is now being made. In law, it is urgently required.

Approaching the North means looking into their legal culture.
This must be done because the North is the home to the people and
institutions that hold the capital, which can ensure the
continuity of the development processes taking place in Indonesia
and other nations of the South.

Indonesia must not forget that the North always looks upon the
existence of certainty of law in their business transactions when
making decisions whether to purchase goods, to lend money or to
invest. Three factors which now make it absolutely necessary to
uphold the law must be cited here to emphasize this point.

First, recession still prevails in some of Indonesia's
business partner states. For example, Japan. Currently, a
substantial quantity of Indonesia's non-oil export goods seem to
have remained unsold. Under normal conditions, Japan could easily
have gobbled up such goods.

Second, the oil price has fallen to only US$ 15 per barrel
(although June delivery transactions indicate an upward trend to
US$ 17.13).

Third, the emergence of new aggressive exporters in the
Pacific Basin, such as China and Vietnam.

All these unfavorable situations (at least for Indonesia)
require a counter measure in the field of law. In this way it is
hoped that foreign purchasers of Indonesia's goods, foreign
creditors and investors will be attracted to do business in
Indonesia.

This counter measure policy would certainly not mean that we
have to apply the law from the North per se, for example, the
Uniform Commercial Code of the United States. Neither should we
do so in regard to the Closed Corporation (Besloten Vennotschap)
of the Netherlands.

Further, we certainly should not apply en bloc the law of
Criminal Procedure of the United States, because this would
probably shackle the hands and feet of our own law enforcement
agencies, such as the prosecutors and the police.

Approaching the North should mean applying the concept of the
supremacy of law as it is known in the North. As far as the
content of law is concerned, it should certainly be adjusted to
the needs of Indonesia.

Supremacy of law is usually reflected in the consistency of
decisions handed down by the judiciary, and not in the beauty of
a substantive law. The ideal form is certainly to have both a
beautiful substantive law and a consistency in its application.

In spite of this awareness, in encountering uncertainty of law
in Indonesia, one is apt to seek refuge behind the inherited
colonial law. One is then inclined to blame the colonial law for
not being in tune with the development process, hence the
existence of the uncertainty of law.

This uncertainty in turn conveys the impression what is
applicable in Indonesia is a kind of jungle law reminiscent of
Charles Darwin's (1809-1882) concept of survival of the fittest.

The strongest will survive and the weaker will perish. In
fact, the human rights principle teaches us that both the strong
and the weak have an equal right to live.

The relationship between creditor and debtor, for example, is
regulated in various laws to ensure an equal right for these two
important economic players. In other words, we have laws on
creditor-debtor contracts.

We also have laws which regulate collateral and the holders
rights over it. We have also laws concerning documents which have
legal strength equal to a judge's decision. In spite of all
these, the equal right of the parties, which is guaranteed by all
those beautiful substantive laws, is often shattered because
there is no consistency in application.

The inconsistency and uncertainty in the application of law
may cause our business partners to shun our judiciary.

Our business partners feel that their human right to seek
protection from the judiciary is not secured. They feel that
their right to file a claim if there are defects in the goods
they purchase are not well protected.

The creditors are haunted by fear that the money they loan
will not be repaid. They fear that the rights they should have
under the law over the collateral which they hold cannot be
executed.

This definitely is one of the reasons why our trade surplus is
declining vis-a-vis those of our business partners.

If the development process is disrupted because of the lack of
authority of law, many manufacturing companies will go down the
drain. They simply cannot repay the credit they receive.

Perhaps, as a whole, the bad debts are greater than the
Bapindo case alone would indicate. In such a dismal scenario, in
which the development process would be disrupted, many workers
would not only be unable to obtain a minimum wage. They might not
even be able to have a job at all, let alone move toward a better
standard of living.

Article 27 (item 2) of the 1945 Constitution is, therefore,
not being fulfilled.

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