Indonesian laws are unrealistic, dead letters

Hikmahanto Juwana, Professor of Law, University of Indonesia

For many, law is conceived as norms governing how society behaves. However, laws constantly change. Indonesia has constantly had amendments, introduction of new laws and repeal of existing laws. However, today's challenge is that the law does not work. Progress is insignificant due to a number of factors.

The first and foremost reason is that regimes in Indonesia have wanted to be distinct from the other.

The Sukarno regime wanted to reform all colonial laws into laws with sources in "Indonesian values". The Soeharto regime wanted to change all colonial laws and to amend the earlier laws. The regime of B.J. Habibie had three goals: Reforming colonial laws, the laws from Sukarno's Old Order and that of the New Order. This trend continued under the next presidents.

So Indonesia has never really tried to develop its law as part of a social process extending beyond a president's term. It restarts from scratch whenever a new regime comes to power. Each regime only changes the pendulum from one side to another regarding positive law.

The second reason is the dominance of the "top down process" in law making. Instead of a "bottom up" process in which values in a society are transformed into laws and regulations, the government mostly develops legal draft statutes and regulations at the highest levels of government, without substantial input from society.

There are several reasons why the top down process has dominated the law here. First, democracy has not worked. Social values are thus rarely transformed into laws.

Second, we are still largely an ethnically-based, traditional society. People follow their leaders who have extensive powers. Third, civil society in the traditional European sense has not developed, leaving extensive room for political maneuver.

A top down process needs strong law enforcement. Values are "forced" towards change through penalties. But the law has more often become a dead letter because society simply never adopts the imposed values and penalties are not carried out either.

A most cited reason is the law enforcers themselves, who rarely attempt to expand their knowledge. Corruption, blamed on low salaries, is rife.

Public trust in the judiciary is then low, hence the common reports nowadays of people taking justice into their own hands, to the extent of burning and beating to death petty criminals. Weak law enforcement is therefore caused by unrealistic laws and regulations.

Law making sometimes ignores the fact that amendments or introducing a law can be done in a relatively short period. while changing mindsets and values take much longer. Furthermore, unrealistic laws and regulations are seen by law enforcers in terms of financial gain. The stricter the penalty, the better the chance for higher amounts of bribe.

Weak laws are also caused by the lack in required research of the problems at hand, and the solution among various alternatives. Typical research for laws here are only undertaken for formality. Research is not performed in advance to explore needs, much less desired outcomes.

Research capacity in Indonesia is relatively weak, so good research is exceedingly rare. Most laws and regulations have never gone through research along with their enactment. Whenever new laws are promulgated even those within the legal community are often surprised.

As a result, the legitimacy of this top down law is often challenged and the law is rarely understood well. In the end, people do not want to change.

In addition, the absence of research on prevailing laws and regulations has led to contradicting laws and conflicting lower ranking legislations.

Among the new laws which now demand rapid changes are the economic laws which are considered by many to reflect foreign intrusion in the body politic.

Many say our recent competition law and consumer protection law are completely novel. There are also laws which have been in existence for a while, but their recent amendments have been significantly contributed to by international institutions such as the World Trade Organization and the International Monetary Fund. These include the substantially changed intellectual property law, company law, capital market law, bankruptcy law, banking law and central bank law.

The current substance of intellectual property law may have the same standard as other developed countries. However, the main constraint lies in the lack of understanding of the concept of intellectual property as a right.

The law's enforcement has thus been lenient and compromised due to the gap between values embedded in the law and values in society.

Another reason of weak enforcement of formal law here is cultural. Laws are not understood as social norms, but are instead taken as the expression of government policy, state matters or, even as mere symbols.

This has led to frustration of those who conclude that written law in Indonesia is not respected. Most Indonesian lawyers thought that once you enact a law it would be abided by. This kind of misunderstanding is also shared by many foreign advisors assisting in legal development here.

As a country in transition, such a condition is to be expected. Until recently constraints in law enforcement were not considered much of a problem until recently, due to the past strong government, and to a certain extent public respect in the law.

The challenge for Indonesia today is therefore to make law and the legal system work, as opposed to just enacting a myriad of statutes and regulations. Positive law is running wild, with little or no conforming behavior.

We do not even have the luxury to debate on whether the law is dead. Indonesia must acknowledge the issues as a given condition, and work from there.