Indonesia's long quest for legal certainty

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.