Judiciary marred by distorted rule of law concept

The recent detention and trial of student demonstrators in Jakarta unveils the hypocrisy beneath the new law on freedom of expression. Political scientist J. Soedjati Djiwandono uses this law as a springboard to analyze the judicial legacy of the New Order.

JAKARTA (JP): The New Order regime from the very beginning had a penchant for distorting constitutional, ideological, political and legal concepts. This unfortunate talent seems to have been maintained by the Habibie government.

It is one of the ways by which the New Order government, be it under Soeharto or Habibie, has manipulated the political system. This manipulation is either a conscious effort motivated by greed for power or an unconscious effort rising out of sheer ignorance. And the political system based on the 1945 Constitution, having no mechanism for effective control, has been unable to resist the manipulation.

The House of Representatives, almost powerless under the Constitution, has been used as a rubber stamp. Manipulation has resulted in a House full of cowed and intimidated politicians with little knowledge or understanding of constitutional, legal or political problems, not to speak of the practice of democracy.

The most basic manipulation under the New Order regime was the distortion of the concept of the rule of law, on which the Indonesian state, according to the Constitution, purports to be based. The rule of law presupposes just law. Here lies the link between law as a political product and democracy, which ensures that with the participation of the people just laws will be enacted. Otherwise, rule of law becomes, to use the words of a prominent lawyer, "rule by law".

A law contrary to the principles of justice should be declared void and erased from the books. However, this is one of the problems with the Indonesian political system; it does not provide a mechanism for judicial review. And hence the continuous legal confusion.

The arrest and trial of peaceful demonstrators on International Women's Day in pursuance of Law No. 9/1998 on freedom of expression, while correct from a strictly legal point of view, was the latest case of what in effect amounts to the practice of arbitrary rule. Such a practice results from an arbitrary interpretation of constitutional provisions in the interest of the regime; usually under the pretext of maintaining public order.

Law No. 9/1998 supposedly gives expression to Article 28 of the Constitution, which states that "Freedom of association and assembly, of expressing thoughts in verbal, written and other forms, shall be regulated by law". Unfortunately, the term "regulated" always seems to have been interpreted as "limited".

Thus the law limits freedom of expression through demonstrations by stating that demonstrations must be reported to the police three days in advance. This requirement eliminates the element of surprise, which is one of the factors which makes a demonstration effective. Another limitation is that demonstrations cannot by staged near strategic locations, such as the presidential palace or the compound of the legislature.

Ironically, even the more repressive Soeharto government did not impose such limitations on demonstrations. If it had, the student demonstrations in the middle of May last year would not have led to the resignation of president Soeharto. Is President Habibie frightened of a similar experience?

Laws enacted to implement constitutional articles protecting basic human rights guarantee that such rights will be fully enjoyed by the people. These laws also are meant to punish those who abuse human rights, not those exercising such rights.

That is the spirit of Article 28 of the Constitution, as may be inferred from the next article, which states that "The State guarantees every citizen the freedom of religious worship and practice". While no particular law has been enacted directly relating to this article, it is implicit in the Marriage Law that religious worship and practice is not a right to freedom of religion, but an obligation, for the law requires one to get married in accordance with one's professed religion. To make matters worse, one must embrace one of the five religions officially recognized by the State.

No wonder the Indonesian state has always been described as "neither a secular nor a theocratic state". This negative definition, neither this nor that, seems to have become a peculiar form of Indonesian double-talk, all ambivalence and hypocrisy.

Indeed, years of indoctrination, fear and manipulation have confused values in Indonesian society. The distinction between right and wrong, good and bad, truth and lie, honesty and dishonesty, has been blurred. To have total political reform, given a successful general election in June, the Indonesian people need to liberate themselves from this mental and intellectual bondage.