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.