Indonesia must act firmly to push through necessary legal reforms

Frans H. Winarta, Jakarta

The rule of law is essentially an idea to achieve justice for the people of any state. The law is a system of values that transforms the cause of justice into a reality and should be recognized as such by the people.

The rule of law was originally introduced in countries adopting a common law system, such as the United Kingdom and the United States where the rule of law is perceived as equal rights, equal obligations and the equal footing of every person under the law. These ideas were based on the principles of equality before the law and the recognition of and respect for human rights.

The powers of these states are limited by the rights of their citizens.

Justice must prevail in a state where the rule of law works properly. The people are entitled to legal certainty, justice, a feeling of security and the recognition of their rights. The rule of law should set a balance between the powers of the state and individuals.

Indonesia is currently trying to reform its legal system. As we know, the legal system here is weak and open to abuse and therefore cannot deal easily with corruption cases. How rampant corruption is, is illustrated by the Rp 22 trillion (US$2.35 billion) lost in 1,198 corruption cases investigated from January 2002 to April 2004, according to the office of the Attorney General.

The Berlin-based Transparency International has placed Indonesia among the world's most corrupt nations during the past few years. The crimes committed ranged from the misuse of state funds, embezzlement, malfeasance in private companies, bribery, and collusion between government officials and businesspeople.

From the 584 corruption cases prosecuted in 2003, only Rp 1.2 billion in state assets was recovered because those convicted had spent most of the money or transferred ownership of assets to others.

This is only one example of how the rule of law is weak in Indonesia. Corruption has continued to run unchallenged for more than 40 years in this country and one can only imagine how many public funds have been siphoned off to the detriment of Indonesians. The huge losses of state assets must be stopped.

It is the people who have to carry the burden through all forms of taxation, the increase of fuel and basic commodity price rises.

Corruption eradication has been a national issue for a long time but the government remains helpless to cope with the crime.

Recently Indonesia has been shaken by a series of corruption scandals involving hundreds of provincial councilors in a spectacular case of collective corruption involving almost the entire legislature in West Sumatra.

It is encouraging to learn the Padang District Court has demonstrated the courage to sentence 43 of the 55 provincial councilors to prison terms. Although the losses from corruption in the province is small compared to the huge losses incurred nationwide, the court ruling could go a long way in adding to the momentum to combat corruption in this country.

It is now the duty of reformists to make the rule of law workable in Indonesia since the fall of Soeharto. Historically Indonesia is a state based on the rule of law (rechsstaat).

Constitutional thinker Friedrich Julius Stahl said a state based on law should be made up of four elements: The acknowledgement of basic human rights, the separation of powers, a government based on law and the existence of an administrative court. Indonesia is now striving to find a suitable system to institute the rule of law.

But the effective rule of law can only be achieved if Indonesia follows this action plan:

The law should comply with the people's sense of justice. This means that the people must be involved in the law-making process in the legislature through their representatives and the representatives must be able to translate this sense of justice into the bills before the House. The law must reflect the people's aspirations and be free from political and private intervention.

Secondly, Indonesia should adopt an honest, fair and clean judicial system free from corruption, collusion and nepotism. The judicial system in Indonesia at the moment has not been operating properly due to the lack of knowledge and incompetence of law enforcement agencies and the legal profession -- the investigators, prosecutors, judges and lawyers.

The call for a fast, effective and concise judicial process has become an empty slogan and has never materialized. Many believe the courts have been contaminated with the so-called mafia peradilan (court mafia) -- a malaise known internationally simply as judicial corruption. The buying and selling of court verdicts is normal practice. While, this intervention through money, power and politics continues to resist any efforts that could eradicate mafia peradilan, the rule of law will never prevail.

Public access to the court should also be improved. The Indonesian legal system should be able to protect the rights of justice seekers in criminal cases -- suspects, defendants, witnesses and the victims of crime.

In theory, justice seekers are protected and the legal system recognizes the standard international norms and principles. However the authorities in many cases abuse their power to the detriment of justice seekers.

In day-to-day court proceedings, a significant number of incidents occur such as intimidation and the denial of testimony, which create an uncertain situation.

Despite these abuses, it is undeniable some suspects create problems for investigators by making the investigation perplexing and slow. As a result, the police apply conventional and "unconventional" interrogation methods to achieve their objectives.

Consequently, public access to the court should be improved to ensure the rule of law is recognized.

The writer is a member of the governing board of the National Law Commission.