Political will for law reform

Political will for law reform

Budiono Kusumohamidjojo, Jakarta

It is redundant to state that Indonesia finds itself in a
legal crisis, which makes it pertinent to ask why and how the
country could manage to exist six decades following its political
independence and simultaneously experience a constant
deterioration in its legal system?.

The answer to this question is elusive, but one thing is for
sure: the long-lasting regimes of president Sukarno and president
Soeharto were both marked by a lack of will to seriously develop
the legal system in order for the country to comply with the
requirements of a modern state.

They each had good reasons for such neglect. President Sukarno
was busy trying to "build a country out of nothing" as was once
said by Daniel Lev. Sukarno had his hands full with nation-
building almost throughout his entire time in office. Meanwhile,
president Soeharto was kept busy trying to rescue Indonesia's
economy from virtual bankruptcy and liberating the country (but
not necessarily its people) from poverty.

Following a turbulent period of social and political
transition that marked the post-Soeharto era, to the astonishment
of the international public Indonesians managed to conduct an
open, democratic and direct electoral process that resulted in
the elevation of President Susilo Bambang Yudhoyono as the sixth
president of the Republic.

The new President said that his first 100 days in office would
serve as a trial run for his ability to deliver the basic
expectations of the people. The Aceh tsunami late in December
2004 became his real testing ground although it was completely
outside of his 100-day agenda. It would be unfair to judge his
accomplishments merely based on this alone.

While the Aceh disaster has drawn international help due to
the tremendous scale of destruction, Indonesians will need to
stand on their own two feet as regards law reform and effective
law enforcement. Indonesians seem to have learned something from
history by holding peaceful and orderly direct presidential
elections in September 2004 for the first time ever.

With 60 percent of the vote, Indonesians granted President
Susilo's government indisputable legitimacy to establish good
government. Indeed, Susilo's administration decided to place law
reform and law enforcement, along with economic reconstruction,
high on its agenda. Nonetheless, it soon turned out that
implementation would be quite a different story.

Approaching the completion of its first year in office in
October 2005, we have yet to see the law being enforced as it
should be or how a clear direction for the development of the
legal system is being set. We should admit that President Susilo
cannot be expected to do the job on his own and that no single
strike will on its own be enough to successfully accomplish such
a challenging mission.

The establishment of the Constitutional Court and Judicial
Commission, for example, could prove to be pivotal in the
structural development of Indonesia's legal institutions. This is
a welcome development as the judiciary should always serve as the
ultimate bastion of justice.

A problem that is ubiquitous in countries still struggling
with their legal systems is that the law enforcers and the
judiciary are frequently hampered in their professional
independence. Rather than a strict separation from the political
processes, they are merely only slightly removed by a Chinese
wall that naturally allows vested political interests and
bickering to permeate into the realm of the law at the cost of
justice and legal certainty.

A decisive government determined to uphold the law is
absolutely essential. Needless to say, every government has a
political mission to accomplish, but, as Marcus Tullius Cicero
argued as early as the 1st century, no government is legitimate
if it does not work to uphold the law and establish justice.

Consequently, legitimate governments should be dedicated to
the same objectives, and differ from each other only in their
respective strategies. An implication of this is that they must
have the political will to transparently uphold the law and
establish justice.

It is well understood that enlightened governments in
countries that are yet to establish a functioning legal system
face a daunting challenge from powerful stakeholders enjoying the
benefits of a dysfunctional legal system and widespread
injustice.

Accordingly, such enlightened governments must do their utmost
to ensure the establishment of a functioning legal system that
ensures the upholding of the law and establishment of justice.
There is no doubt that to win such a fierce fight they will
require boundless courage. But that is indeed a key qualification
for one who is determined to govern a country, even more so if
that country is Indonesia.

Rather than questioning the legitimacy of Susilo's government,
Indonesians prefer to watch him work towards goals that are
commensurate with their expectations. To date, the President
still has a lot of leeway to demonstrate his determination to
deliver on his promises up to September 2009. Those achievements
will depend on political will, over which nobody has control save
for the President himself.

For the President to put his political will into effect, he
may well need to resort to some policies that might not be
popular and which could cause him problems in the polls. At this
point, we would do well to remember the old East Java saying jer
basuki mawa bea, or sacrifice is a prerequisite for prosperity.
Therefore, to the extent that his policies are justifiable, the
President should be able to rely on the public's understanding
and support.

The writer is a senior partner with the law firm of Soebagjo,
Jatim and Djarot in Jakarta.