Do we need a ministry of law?

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.