Inconsistent legal system likely in the future

Satya Arinanto

The discourse on law enforcement usually starts from the issue of the legal system. According to Lawrence M. Friedman of Stanford University, in one of his influential books, American Law, in modern American society the legal system is everywhere and surrounds everyone. To be sure, most of us do not have much contact with the courts and lawyers except in emergencies. But not a day goes by, and hardly a waking hour, without contact with the law and its broader sense -- or with people whose behavior is modified or influenced by the law. Law is a vast, though sometimes invisible, presence.

According to Friedman, there are three elements of a legal system. First, the legal system has structure. The system is constantly changing; but parts of it change at different speeds, and not every part changes as fast as other parts. There are persistent, long-term patterns -- aspects of the system that were here yesterday (or even in the last century) and will be around for a long time to come. This is the structure of the legal system -- its skeleton or framework, the durable part, which gives a kind of shape and definition to the whole.

The second aspect of a legal system is its substance. By this is meant the actual rules, norms and behavior patterns of people inside the system. This is, first of all, "the law" in the popular sense of the term -- the fact that the speed limit is 55 miles an hour, that burglars can be sent to prison, that "by law" a pickle maker has to list his ingredients on the label of his jar.

Finally, the third element of the legal system is the legal culture. By this Friedman means people's attitudes toward law and the legal system -- their beliefs, values, ideas and expectations. In other words, it is part of the general culture that concerns the legal system. These ideas and opinions are, in a sense, what sets the legal process going. According to Friedman, when people say that Americans are litigious (whether this is true or not) -- that is, that Americans go to court at the drop of a hat -- people are saying something about legal culture. Friedman observes that we talk about legal culture all the time, without knowing it. In other words, the legal culture is the climate of social thought and social force which determines how law is used, avoided or abused. Without legal culture, the legal system is inert -- a dead fish lying in a basket, not a living fish swimming in the sea.

Law enforcement is one of the fundamental problems in Indonesia. From one regime to another, this matter has never been completely resolved. We have already experienced changes in the offices of presidents, ministers of justice, attorney generals, chief justices and heads of the National Police.

It is obvious that the supremacy of law has been inadequately respected so far, while the principle of equality before the law, which is based on human rights, has also failed. The above elements, called the Rule of Law, form a principle that is practiced in countries that respect the supremacy of the law, including Indonesian and other modern states.

In particular cases politics have influenced law enforcement efforts in Indonesia. This underlines the opinion that law is a political product. In reality many legal issues, which are claimed to be far removed from political matters, actually have a strong connection with politics. The same things happens when law enforcement has to involve conglomerates, who have strong connections with some political figures.

If cases involving mischievous conglomerates had been solved properly and seriously, all state losses could have be returned, and the political elite would have also gained political benefit.

According to a survey conducted by PERC on investors in Asian countries in 2001, Indonesia was placed at the bottom with a score of 9.22 (on a scale of 1-10, with 1 being the best and 10 the worst).

According to the investors, as quoted by the National Law Commission of the Republic of Indonesia, law enforcement was worse than during the Soeharto regime. The reputation of law enforcers, including the police, judges and prosecutors, is terrible, and according to the investors, Indonesia is the worst among the countries rated (by PERC).

Moreover, the investors say that the police act more as extortionists and criminals rather than law enforcers, and that the courts' decisions usually favor those who have money as the courts are easily manipulated by unscrupulous individuals to thwart the course of justice.

From the above opinions we can see that the investors put a very high value on the institutions that correlate with the criminal justice system, starting from the police, the Attorney General's Office, prosecutors, the courts and the prison system.

According to the National Law Commission, the investors' opinions are similar to the results of a survey conducted by Indonesian Marketing Research in 1999.

According to a recent survey conducted by the Asian Development Bank (ADB), corruption in Indonesia is mainly seen as a legal problem. New legislation is apparently required, and government officials must improve their ethics to adhere to new moral standards. But new laws and new codes of ethics have so far failed to curb corruption, since they cannot address the roots of corruption. The eradication of corruption is much more complicated and more time-consuming than the issuance of new legislation (See ADB, Draft Country Governance Assessment Report Republic of Indonesia, September 2002).

In a medium-term perspective, Indonesia needs an anticorruption strategy that focuses on crosscutting government functions and on incentives and other human resources management mechanisms, rather than a general strategy focusing on general and repressive means to combat corruption.

Action plans spelling out the targets for reform in such crosscutting need to be developed and implemented to set objectives and special tasks for all involved institutions. However, anticorruption steps must be selective, for financial reasons.

Based on the above facts, we can conclude that the prospects for law enforcement in Indonesia in 2003 remain uncertain.