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.