Judiciary marred by distorted rule of law concept

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.