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.