Indonesia's long quest for legal certainty

Budiono Kusumohamidjojo, Jakarta

Legal certainty has been such an alien concept during the course of Indonesia's six decades of political independence that it has become an empty slogan for most Indonesians. Practicing lawyers are accustomed to the unclear, inconsistent and incomplete laws and regulations in the country.

We have almost forgotten that legal certainty is a normative state where people can anticipate what is most likely to happen in the majority of cases if a person, regardless of his/her respective background, violates or complies with a law. It is a state where people can rely on a legal system to function and respond if triggered by a breach of law.

Although no legal system can guarantee the attainment of perfect justice for every citizen at all times, a legal system that implies legal certainty provides the most plausible avenue toward justice that a person can achieve.

Effective legal certainty in an open and democratic society is the result of a complex synergy between an enlightened and effective national leadership on the one hand and enlightened, and hence motivated citizens on the other. In closed and authoritarian societies, we may also encounter impressive legal certainty, which rests in strong hands, but that excludes public participation in governance.

Having departed from two subsequent authoritarian regimes, Indonesia under the administration of President Susilo Bambang Yudhoyono has started to exert efforts to develop legal certainty that relies on a legitimate national leadership and a society that ardently seeks the manifestation of justice in a transparent social paradigm. A national leadership that is the result of a direct election by the citizens should by now have fulfilled the first requirement. It is now the Susilo government's turn to exert its maximum efforts toward consistent best public governance.

Whether excellent or poor, consistent governance plays a decisive role in forming a set of normative rules to guide citizens' behavior. No doubt, in the light of the prolonged dysfunction of the legal system Indonesia's present government faces a daunting challenge. It has no choice other than to deliver and demonstrate tirelessly that it exerts its best efforts to consistently employ the best governance. Or else Indonesians will back off in disillusionment and lose trust in anything that is Indonesia.

We cannot ignore the fact that both are products of two subsequent regimes that did not have high respect for the law, while a Dutch saying reminds us, that "the apple never falls far from the tree". In other words, there is the need to uproot the corrupt culture from which plenty privileged people are accustomed to taking the forbidden fruit.

As Indonesia's history has little to offer to speed up this process, we may expect stimuli from the global arena that will provide this country and its people with the historical challenge in terms of two choices. Either we deliver in terms of a world- class standard of public and private best practices, or else we risk marginalization and alienation from all the progress that is being achieved in the global arena.

Indonesia will gain respect in the international arena only if it proves that it delivers on the qualification of a modern state that abides by the law. This qualification is marked by a relatively high degree of legal certainty that will be of mutual benefit to Indonesians as well as the international community dealing with Indonesians.

No doubt a painful learning process lies ahead to achieve that end. This is the avenue where the international community may exert pressure to accelerate Indonesia's development of its legal system, about which we have not been serious to date.

Indonesians at large are struggling toward this objective and despite remarkable progress, we have suffered plenty of setbacks. As it is intertwined with culture, we may well have to take it as the cost of an inescapable historical process. No wonder President Susilo's government is in a dilemma whether to heed international standards of best practices or bow to Indonesia's old established corrupt but powerful elements.

Nevertheless, Indonesians are not responsive by nature to international pressure. Despite their reputation for hospitality (that is gradually fading away silently, however), Indonesians in general and plenty of their leaders in particular are paradoxically also renowned for xenophobic inclinations. Indonesian leaders used to warn their people from time to time, albeit ineffectively, against anything "foreign" that "runs against our culture". Which part of our culture -- the lax attitude in our working places or our poor performing civil service?

Such warnings have become increasingly out of date and misplaced, while it is high time that Indonesians and their leaders in particular open their hearts and minds in order to learn from other countries, peoples and their governments that have proven themselves to be at the forefront of a more humane civilization, of which legal certainty is simply a logical must!

The writer is senior lecturer in Philosophy of Law. This is an edited version of the author's presentation at the Indonesian Mining Association Conference in Jakarta, Sept. 21-22, 2005.