Justice must prevail

Justice must prevail

Almost unnoticed, a month has passed since the reform-minded
Abdurrahman Wahid became President of Indonesia. By any standard,
one month is not much of a time span for anyone to try to bring
order to a legal system that can only be called, at best,
disorderly. For Indonesia, where the law can be said to have
truly ruled only for about the first decade-and-a-half of the
country's 54 years of independence, putting order to a legal
system that can only be justly described as chaotic is a gigantic
task that normally might take a succession of governments decades
to correct.

Yet, putting order to the legal mess is one of the most urgent
first priorities that somehow must be accomplished before
Indonesians can even think of rebuilding their country's
economic, social and political infrastructure, devastated by
decades of iron-fisted rule by governments whose sole interest
seemed to have been the preservation of their own power. How
extensive the damage that has been done can be imagined just by
considering the following facts.

In 1959, then president Sukarno, distressed by endless
bickering among political factions that destabilized the country
and made economic development impossible -- a phenomenon which he
saw as proof of the unsuitability of a Western-style parliament
for Indonesia -- unilaterally decreed a return to the country's
tentative constitution decreed a day after the proclamation of
independence on August 17, 1945. Known as the 1945 Constitution
-- which is still valid even today -- it provides for a strong,
even dominant executive.

Once in full control of the administration, Sukarno set out to
"retool" the various instruments of state in a manner that he
believed, under his leadership, would push Indonesia toward
growth and make it one of the leading powers, at least in the
developing world. Among the most far-reaching actions Sukarno
took to buttress his system of "guided democracy" was to formally
repudiate the generally accepted principle of the separation of
powers, known as trias politica, which denies the executive a
free hand in the administration of the state. By giving the
attorney general and the head of the Supreme Court Cabinet
minister status, the judiciary was effectively subordinated to
the executive.

Measures to control social and political life were taken
elsewhere, too, but it was the subordination of the judiciary
that paved the way to total control by the state of practically
every aspect of public life in Indonesia. With Sukarno's demise,
Soeharto took over, only to perpetuate his predecessor's old
system of total state control, albeit in a more subtle design,
known as "Pancasila democracy". The kinds and the extent of
abuses and excesses which these two authoritarian system produced
are now well enough known. The obvious lesson that all this
provides is that more than a few things are essentially wrong
with the 1945 Constitution that must be amended -- a task that
the People's Consultative Assembly, the country's highest policy-
making body, is currently working on. All this will obviously
take time to accomplish. In the meantime, though, a few aspects
can be delayed only at the risk of stalling the current process
of total reform or, at its worst, of a breakup of the country.

The first aspect concerns the government's pledge to establish
good and clean governance by putting an end to corruption,
collusion and nepotism, once and for all. In this matter it is
important that action is taken before the community starts losing
its confidence in both the government and the legislature. Given
the difficulties encountered so far to prove corruption, it seems
the time has come for the House of Representatives to work on a
new law that puts the burden of proof on the accused, rather than
on the plaintiff. There should be little in the way of passing
such a law, considering that quite a number of countries across
the world already apply such a reversal of the burden of proof.

A second and most important issue is the satisfactory
conclusion of currently outstanding cases of human rights abuses.
Although human rights violations have been and are being
committed not only by the military but also by civilians, it is
the military which deserves our special attention. Not only have
surveys indicated that most human rights abuses are committed by
military personnel, the military has so far in most cases been
given the special consideration of being tried by its own
military tribunals, or even special councils of honor, rather
than civilian courts.

With an injured sense of justice playing such an important
part in fueling the flames of unrest in several regions, most
particularly Aceh, it is of the utmost importance that justice is
not only done, but is seen to be done. For this reason, our
military can make a most valuable contribution to holding this
nation together, simply by recognizing the need for a fair public
trial, in a civilian court, of any of its members who are accused
of or suspected of such violations. This is the only way the
public's confidence in and respect for the government and the
military can be restored.