Legal reform a necessity to forge democratic society

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.