Ending legal crisis: Getting closer to justice

Ending legal crisis: Getting closer to justice

Achmad Ali, Professor of Law, Hasanuddin University,
Makassar, South Sulawesi

The specific condition of the law in Indonesia is clearly
different from most other countries. Former president Soeharto
left this country in a very poor state, especially in the legal
sphere. During the 18-month tenure of his successor, B.J.
Habibie, law enforcement deteriorated further.

The biggest mistake of the New Order government was over-
reliance on "procedural justice," and also on nepotism which
favored the First Family and its cohorts. Justice in the form of
even distribution of economic welfare never materialized.

Peoples were removed from their lands "for the sake of common
interests" without adequate, if any, compensation. Land was
appropriated for large-scale development, often after bloody
clashes with villagers, while long-running disputes over
compensation and rights of occupancy went unresolved, in some
cases for decades. As this daily noted in 1995, the land problem
amounted to a "social time bomb."

Successive regimes have also been accused of abusing the law
for political gain, and the law has been often interpreted
according to the political interests of the authority.

Under President Megawati Soekarnoputri, we still see many
figures of the Soeharto regime assuming top posts in most areas
of government.

In 1995 the professor Neil J. Kritz wrote that Indonesia was
in a state of "transplacement" -- a government whose elements
were a combination of new figures with a high commitment to
democracy and figures of the previous regime, who found it
difficult to change their old ways and tended to conceal their
checkered past.

Such conditions similarly make up the difficulties of the
present government to improve law enforcement and settle, once
and for all, the various cases of violations of law and human
rights in the past. Consequently, there is a continuous tug-of-
war of interests between "reformists" and those of the past
regime, contributing to riots among the people.

Overly positivistic thinking that meticulously emphasizes
issues of "procedure" in law enforcement, in addition to the
corrupt mentality of law enforcement figures, has produced
disappointing judicial decisions, especially those relating to
corruption cases. The result is an increasingly worse image of
law enforcers in the public's eye, and in turn, the loss of
public confidence in legal institutions as well as other formal
institutions -- leading to people taking justice into their own
hands.

Restoring public confidence in the government and upholders of
the law is the first step toward escaping from our legal crisis,
to enable law to play a role in the country's development. A
crucial measure in this respect is cleansing our society of all
the "dirty" figures working in the field of law enforcement and
at other state institutions.

Only then can we begin creating legislation consistent with
local values, because it is such laws that would actually be
obeyed by people.

Legal awareness, legal obedience and legal effectiveness
constitute three interrelated legal elements -- structure,
substance and legal culture. People often confuse "legal
awareness" and "legal obedience". One's awareness that stealing
is "wrong" or "criminal" does not necessarily stop one from
stealing.

To escape from this legal quagmire we find ourselves in,
reform in legislation is not enough. The government must have the
political will to change the structure, substance and legal
culture consistent with the reform spirit.

The most important reform of legal substance is the
replacement of old laws that no longer suit the needs of society.
The creation of new laws must be considered deeply, maturely and
be given adequate time, so Indonesian law can meet the essential
objectives of law: justice, utility and certainty.

Reform of the legal structure, including that of law
enforcers, as aforementioned, should begin by getting rid of all
corrupt figures, especially those in the attorney offices and the
courts. This should be followed by recruitment of law enforcement
personnel who are people of true integrity and who have mastered
the legal science, with the highest commitment to justice.

Reform of the legal culture would aim to change the legal
paradigm in the eyes of citizens and particularly those in the
legal sector, so that the view of the law is no longer limited to
an overly "formalist-positivist" approach that often seems to be
so focused on the procedures that justice gets shoved aside, and
thus isolates law from the community's sense of justice.

This is the only way in which public trust in the law and law
enforcement can be restored, and therefore becomes the point of
departure of the true "legal development" in Indonesia.