Do we need a ministry of law?

By Bambang Widjojanto

JAKARTA (JP): A university rector's suggestion to set up a ministry of law and judiciary has won a large number of supporters. Dr. Muladi's recent suggestion echoed what Ismail Saleh, a former justice minister said in 1990.

Those who support the idea have said if the government is serious in improving the judiciary the suggestion must be taken into consideration.

But those against the idea are not convinced a ministry of law and judiciary can promptly solve legal matters in this country. Indonesia is suffering from a problem faced by many developing countries, namely the enforcement of the law. The law is only an instrument of those in power, so it is very dependent on the political will of the government to make law supreme.

Whatever the government decision will be, the judiciary is closely connected to the way we perceive legal problems and to the role it should play.

If we examine legal problems in Indonesia we have to go back to the origins of the social configuration which conditioned the modern legal system.

S.N. Eisenstadt in his book Modernization: Protest and Change said developing countries are usually latecomers to modernization. A society of this kind is characterized by a "chaos in growth" brought about by conflicts in various stages of development which take place simultaneously. There are also clashes of values caused by uneven growth in different sectors of society.

In this chaos, Indonesia has adopted modern law which has a formal and rational character. This law was the apex of social, political and economic development for centuries in Europe.

Alan Hunt in his book The Sociological Movement in Law describes it as an interaction of capitalistic interests with formal law and procedural certainty and the need for a codified and homogeneous system.

According to Weber, a modern legal system is capable of providing a predictability to ensure that planning can be realized. However, this has not been the case as the Indonesian experience has always been colored by conflicts of values. Therefore, as a legal system it can loose its direction and reduce its certainty and predictability.

The development of the law has not fully been realized despite the New Order credo which is to build a national democratic, constitutional life based on law. There is a tendency to treat the law as a government instrument, not as a means to accommodate people's interests to gain access and control public policies.

During the 30 years of the New Order, the law has merely become an instrument to boost economic growth and as a means to build political stability. The law is not yet a system that is responsive to the development of society transforming from an agrarian to an industrial society.

In such a transformation process the law should not be trapped into becoming a means to a system of legislature, but it should be an instrument that is capable of providing certainty and guidance to accommodate and create truth and justice in society.

The integrity and dedication of law enforcers and the judiciary also form a problem that is increasingly focused on by society. The inability to enforce the law and to make the judiciary institution a stronghold for justice seekers has caused a decline in the image and authority of the law.

It is therefore not wise to blame people if they use violence as a way out for their problems. They believe the law cannot be used as a means to solve conflicts according to their idea of justice.

In this context, the suggestion to set up a state ministry of law and judiciary needs to be studied carefully. The legal problems are so complex and overbearing that it cannot be solved by creating a new body alone.

The solution lies in the simple question of whether we are serious or not in making the law supreme in the country. Do we have a commitment to make the judiciary an independent institution that is capable of implementing the principle of equality before the law?

The political will of the government plays a very important role. It must be determined to make the law and its enforcement a reality as an accommodation of the process to attain certainty, truth and justice for the people.

If this is not realized, an institution like the state ministry of law and judiciary will not be of great significance and will only create new problems.

The writer is chairman of the Indonesian Legal Aid Foundation.