Indonesia must act firmly to push through necessary legal reforms
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.