Democracy and legalism

By John Hargreaves

JAKARTA (JP): A democratic perspective emphasizes that laws are made to suit people while a legalistic perspective emphasizes that people must follow laws. In democratic societies a democratic perspective and a legalistic perspective seldom diverge because laws are indeed made to suit people. But in undemocratic societies laws are generally made to suit the government. So the interpretation of events is different according to whether we take a democratic or a legalistic point of view.

For a country to become more democratic the laws must change to allow wider public control and participation in the government. At the same time, the people must behave more democratically by showing tolerance of cultural differences, exercising their right to express opinions and so on.

It is not possible for an authoritarian leader to unilaterally declare a set of laws which will instantly transform an authoritarian society into a democratic one. Unless there is input and commitment from all sectors of society, the new laws will not be matched by appropriate changes in behavior.

In Indonesia the main drive toward democracy came from students exercising their right to demonstrate, backed by the press and others. Eventually their pressure removed the biggest obstacle to democracy, Soeharto, and forced the government to make some important new laws, such as the law on political parties.

As civil society becomes more organized and powerful, the laws will eventually come to reflect the needs of the people. In the meantime the difference between a democratic and legalistic perspective may be a source of confusion and even conflict. Some people prefer to view events from a democratic perspective while others prefer a legalistic perspective.

From a democratic perspective, Soeharto's failing was the failure to implement the will of the people. The Soeharto regime repressed organizations which defended people's rights, and maintained an elections system based on undemocratic principles.

In democratic countries the purpose of an election is to bring to power a government that represents the will of the people. Whether the system is parliamentary or presidential, dual party or multiparty, direct or indirect, the electoral system is congruent with the system of government. As long as the elections are free and fair they are sure to achieve their purpose.

But in the Soehartoist system, the purpose of an election is to bring to power a government that is stable and effective in bringing security and prosperity. In a democracy it is assumed the government will bring security and prosperity because it is controlled by the public. But in Soehartoism it is assumed that the public cannot be trusted to elect or control an effective government. It is not the people who must correct the mistakes of the government, but rather the government which must maintain its ability to override the will of the people.

Democracy is resilient, while Soehartoism is not. As soon as the government fails to deliver the promised stability, security and prosperity the credibility of the whole system collapses. People are enraged because they have been forced to support a worthless system.

The new election laws have changed the nature of the elections, but the underlying principles remain the same.

Indonesia has a multiparty legislative electoral system with a strong presidential government. There is no guarantee the elections will bring to power a government that represents the will of the people. In fact, there is a strong possibility that it will not. The basic principle, as under Soeharto, is that the people are too stupid to choose an effective government themselves. So a safeguard, in the form of the People's Consultative Assembly (MPR), is necessary to allow the people's mistakes to be corrected by those who know better.

As a result, the presidential election resembles not so much a democratic election as an elaborate game of cards, in which various players compete for the grand prize of the presidency. Parties which do well in the general election are dealt a strong hand, while those which do poorly are dealt a weak hand. The armed forces are given a strong hand for reasons that nobody is quite sure of. Further cards are given to provincial assemblies to fight over among themselves. Some extra cards are reserved for powerful and well-organized social groups which are adept enough at the political game to know how to obtain them.

Once all the players have their cards the game proceeds, the rules are refined and the players seek to join forces until eventually one group becomes powerful enough to win the game and appoint the president. Meanwhile the people, having played their part by determining the distribution of some of the cards, anxiously await the outcome.

Some people will state that this game is merely Soeharto's old game with a few new players. Others, including the players themselves, will say that all that matters is that everyone follows the rules, although they may quarrel about what the rules actually are and whether anyone is cheating.

From a legalistic perspective, Soeharto's failing was a failure to uphold the law and the Constitution. Soeharto interpreted the Constitution for his own ends and manipulated institutions so they could not maintain the rule of law.

From this view, the basic crime of Soehartoism is corruption, collusion and nepotism (KKN). Soeharto was the chief villain and his collaborators, depending on who is speaking, included the armed forces, the civilian bureaucracy, ethnic Chinese businessmen, foreign corporations or anyone with an expensive car.

The present administration believes it is best to keep the circle of villainy as small as possible and even suggest that legally it is doubtful whether Soeharto was really guilty of KKN at all. It sometimes seems that if Soeharto was indeed guilty of collusion, he can only have been colluding with himself. Far from clearing up the mess left by Soeharto, investigations have only turned KKN into a mass of contradictions -- ubiquitous yet elusive, familiar yet mysterious, an aircraft hijacked by its pilot.

Some people will state that the current government cannot possibly respond adequately to people's concerns about KKN, while others will say that legal technicalities make it difficult to bring Soeharto to trial.

Assessments of Soeharto's resignation are also marked by differences between democratic and legalistic perspectives. From a democratic viewpoint what matters is that the people's will prevailed. From a legalistic viewpoint what matters is that power was transferred in a legal manner to the vice president.

For some, Habibie should not take any controversial measures as he inherited a lack of democratic legitimacy from Soeharto and has even less following the June 7 elections. For others, Habibie has full legal and constitutional authority to take any measures he feels appropriate.

Those who prefer a democratic perspective see Assembly members as the people's representatives whose job is to solicit input from the public. The problem of the General Session of the Assembly will be how to enable the public to guide MPR members given that most people have no idea who their representatives are.

Those who prefer a legalistic perspective see Assembly members more like judges who should make wise decisions based on their knowledge of the law and their own perceptions of public interest. They should no more be pressured by outsiders than judges should be influenced by noisy protesters outside the courtroom. The problem of the MPR session will be how to prevent the public from disturbing delegates.

Presenting events in the light that best suits their interests will be a prime concern of presidential candidates. Megawati will want to present a democratic perspective, since according to the elections results she is the only generally popular candidate. But if she presses this argument too hard she may be accused of undermining the independence and authority of the Assembly. When she counteracts this by emphasizing her support for the MPR and the Constitution, she risks criticism as an antireformist.

Habibie, unless he can win the support of the National Awakening Party (PKB) and other parties, will want to downplay the general election. If his supporters make such remarks as "Megawati is not really popular outside Java", this will only encourage people to look more carefully at the elections results, which ultimately will be to Habibie's disadvantage. But his camp will find it hard to argue that "Habibie is a true democrat and reformer, and the fact that he lost the elections should not stand in the way of democracy".

Even if he adopts a legalistic stance to justify five more years as president he will have an image problem. The administration's record of law enforcement in fields that most arouse suspicion among the public, such as corruption and mass murder, is hardly any better now than it was under Soeharto.

The position of the "axis force" parties is not clear. They may not seriously intend to push their presidential candidate and they may not have a common platform. The National Mandate Party (PAN) favors amending the Constitution to promote democracy, while the United Development Party (PPP) favors amending the Constitution and banning women presidents.

Since the general election, PAN has stressed four aspects of reform: Constitutional amendment, the trial of Soeharto, the end of the military's dual function and regional autonomy. These points were selected in order to pressure Megawati's Indonesian Democratic Party of Struggle (PDI Perjuangan). But now they are sometimes treated as the be-all and end-all of reform while other, equally important programs, such as restructuring the MPR, bringing military members to trial for human rights abuses, reorganizing the civil service and depoliticizing the judiciary, have been upstaged.

What is clear is that the nature of the presidential election itself leads to confusion. In the general election campaign everybody understands that politicians are seeking to win votes from the section of the community which they see as potential supporters.

However, in the presidential election campaign they need the votes of MPR members and nobody knows what exactly will influence the votes of representatives. No doubt the most important voices for most representatives will be that of the public and that of their conscience, but for some the opposite may be true.

So political discourse in the coming months will remain complex as politicians speak from different viewpoints to enlist the support of different sections of the public and of the MPR.

The writer, a graduate from Cambridge University, United Kingdom, is now a teacher at Jakarta International Korean School.