Legal reform a necessity to forge democratic society

By T. Mulya Lubis

JAKARTA (JP): As Indonesia celebrates the 53rd anniversary of its independence tomorrow, it is timely to reflect upon the nation's achievements over all these years, particularly in the legal sector, an area of great significance.

Compared with the other sectors, the legal sector has been very much left behind. Historically, during the colonial era, the laws were invariably used in the political field as instruments of "divide and rule" governance and repression. In the economic sector, the laws were often simply instruments designed for the interest of businesspeople and the capital.

Therefore, the contribution of the laws to the development of democracy and social justice was minimal, especially considering that the jurisprudence of the courts of law was not used much as a legal source.

In this respect, not only were the laws void of their neutrality but they furthered the interests of the ruling elite and business circles.

Since independence, the role played by the laws has not undergone much change. But it is worth noting that many of the legal products during independence, including those issued during the Soeharto administration, continued the colonial legal policies as reflected in the idolization of stability, security and order, and economic growth.

The much-publicized policy of income equity has proven to be nothing more than mere political rhetoric (a public lie). It is very difficult for a legal policy like this to take sides with democracy and social justice.

As a result, legal products have emerged that have muzzled Indonesians' civil and political rights. The nation has experienced the Law on General Elections, the Law on Political Parties and the Functional Group (Golkar), the Law on the Structure and the Position of the People's Consultative Assembly (MPR), the House of Representatives (DPR) and the local Legislative Councils (DPRD), the Law on Social Organizations, the Law on Referendums and the Press Law.

In the economic sector, although a few legal products take into account the interests of the "little people", most legislation, such as the Law on Foreign Investments, the Law on Domestic Investments and the Law on the Capital Markets, side with the business elite.

It must be noted that deregulatory packages introduced by the New Order government have also turned into legal products which, despite their legal validity being in question, have been enforced as instruments benefiting businessmen and the capital.

In this context, Indonesia's compliance with the World Trade Organization (WTO) regulations has created difficulties regarding the protection of small and medium enterprises and consumers. Unfortunately, the internationalization of economic laws, which apply the principles of nondiscrimination and national treatment, will eventually make this country little more than a pocket of the latest form of economic colonization.

The most important part of the legal sector is the judiciary. It is a public secret that the judicial institutions and the judges in Indonesia are notorious for their lack of independence and being contaminated with corruption, collusion and nepotism.

Unless reform of the judicial institutions is introduced and judges at all levels cleaned up, the legal reform drive will stall. Legal products like the Law on the Principles of Judicial Power, the Law on Public Judiciary and the Law on the Supreme Court must immediately be either revised or replaced.

The greatest challenge is to make the judiciary an institution that translates the laws into reality fairly and impartially.

With respect to the Supreme Court, the expansion of the right to conduct a judicial review of laws is absolute and a must. This is especially so if we wish to see the exercise of legal control over the legal products of the government and the DPR, which may well violate constitutional principles such as democracy, human rights and social justice.

It is only appropriate, therefore, if it is concluded that this right to conduct a judicial review is an indicator of the recognition of the supremacy of the laws in a law-based state.

Therefore, considering the legislative review as being most suitable for Indonesia is tantamount to subordinating the supremacy of the laws to dominant political interests.

The demand for legal reform is a historical necessity. The most urgent legal reform, in terms of restoring civil and political rights will, therefore, include the revocation of repressive legal products (the Law on Subversion, hatzaai artikelen and the like), the revision of nonfacilitating legal products (the Law on General Election, the Law on Political Parties and Golkar, the Law on the Structure of the Position of MPR, DPR and DPRD, the Law on Social Organizations, the Law on the Press Principles, etc) and the drafting of new legal products supportive of the reform drive (the Law on Public Information, etc.).

In the economic sector, it is of great urgency to issue legal products which will provide better protection to small and medium enterprises and consumers such as the Anti-monopoly Law, the Law on Consumer Protection, etc.)

Besides, being civilized and being part of an international community, Indonesia should speed up the ratification of international human rights instruments so that the protection of human rights will take a more institutionalized form.

The repository of Indonesia's positive laws will thus be very much enriched by the ratification of such instruments.

Total reform of the legal sector as set out above will finally lead to political and economic reform. The objective in living as a democratic state backed by social justice can be achieved only if legal reform measures are taken on in a planned, speedy and sustainable manner. This is the most invaluable lesson this nation could learn when coping with the challenge-fraught future.

The writer is a noted lawyer and a member of the Working Group of the Forum for Democracy.