Legal reform relies on power elites

By J.E. Sahetapy

SURABAYA (JP): Rhetoric about the role of law or due process and human rights is rampant, especially among bureaucrats and politicians.

At the same time, discussions about abuse of power and the naked authority of power elites -- linked to primordial, sectarian and feudal value system -- are prevalent among legal professionals and intellectuals.

What causes concern is the fact that everyone is talking about justice, truth and true morality but very few will stand on the side of truth and justice in Indonesia.

The main reason only a few dare to side with truth, justice and human rights is because once you are labeled as opposition, you will become an easy target, stigmatized as a dissident or sympathizer of the communist ideology.

Once labeled you will carry the burden for the rest of your life and the next generation becomes a social pariah.

To overcome this cardinal obstacle, the first and most important step is understanding the mechanisms of the judiciary according to the law of due process.

Overcoming "legal and social stigmatization" is not easy because a rotten fish begins to stink not from its tail but from its head.

The rubber stamp legislature dare not challenge this because if a member of the House of Representatives tries to voice his or her opinion about justice and truth, then the pressure of "power by remote control" will force the respective political party to recall the member.

Or, to use the Javanese expression, members who cannot harmonize their thinking and ways of expression (with the power elite) will find themselves on a tour of duty and not on the list for the next election. A number of legislators have experienced this.

There are many ways to silence the opposition. Megawati, the daughter of the late president Sukarno, is a recent example of a victim of government-engineered politicking. Both the bureaucracy and the Army denied it.

According to the power elite, Indonesia does not recognize the so-called "loyal opposition". The term "opposition" is a derogatory term and therefore should be defined as bersebrangan (the other side), a euphemistic Javanese term.

In legal discussions there have been debates about whether we should use "legal development", "legal change" or "legal reform". Mutatis mutandis (with respective differences considered), it is probably appropriate to use the term legal development. This is especially the case now that the nation is feeling the impact of technological innovation and globalization.

Many laws should be changed. Not only because they are from the colonial period but also because Indonesia is not ready to legally compete with its foreign counterparts in the next millennium.

Legal changes are needed, especially in the area of criminal law. One example is the so-called "haatzaai artikelen" ("hate- sowing articles") or subversion law.

At present, in terms of criminal acts (actus reus), almost everything could come under the subversive act umbrella and there is no need to prove its material consequences.

In other words, to use the criminal law parlance, it has been formulated in a formal manner. Hence it is irrelevant to talk about the possible impact of an act of "subversion" or even an intended act.

Gambling was once considered a subversive act. Selling fake fertilizer and illegal smuggling were also once labeled subversive.

Since 1967, the power elite has not needed to politically back a legal reform approach, except within its lipstick rhetoric.

Finally, in the 1993 Broad Outline of State Policy there was some substance to legal reform. Of course you could speak of an incidental change, like putting a new patch on old trouser. But the Dutch colonial trousers still remain, not because they are good but because there is no honesty, ethics or morality to be responsible for justice and truth.

Human rights in Indonesia seems like a hot potato. The bureaucrats and the power elite make derogatory remarks about the Western concept of human rights. I myself think that the substance of human rights is a universal one, except that its application should take into consideration the culture.

The President appointed the members of the national human rights commission. There were some social and political reservations about whether the commission would be independent and effective.

To use an Indonesian expression: if there is no rattan stick, then the rattan root could be used instead. In other words, although the present commission has been considered from a different perspective, socially and politically, it can still be used as counter check or, at least, a barometer for political, legal, social and economic plans relating to human rights.

A temporary conclusion can be made from this. The present bureaucrats are very powerful because they are backed by the Army. The Army itself is very loyal and no one dares to criticize or even comment about the present condition and situation.

So the need for reform depends on whether the power elite need legal reform for the sake of democratic and human rights to ensure due process is upheld.

There will be no legal reform in the near future if the elites who struggle for power have other motivations.

The effectiveness of human rights depends also on the structure and openness of the power elites, or it depends on "power by remote control".

The writer is professor of law at Airlangga University in Surabaya.