Prospect for law enforcement in 2003

Prospect for law enforcement in 2003

Satya Arinanto
Lecturer and Deputy Dean
School of Law
University of Indonesia
Jakarta
arinanto@cbn.net.id

The discourse on law enforcement usually starts from the issue of
the legal system. According to Lawrence M. Friedman of Stanford
University, in one of his influential books, American Law, in
modern American society the legal system is everywhere and
surrounds everyone. To be sure, most of us do not have much
contact with the courts and lawyers except in emergencies. But
not a day goes by, and hardly a waking hour, without contact with
the law and its broader sense -- or with people whose behavior is
modified or influenced by the law. Law is a vast, though
sometimes invisible, presence.

According to Friedman, there are three elements of a legal
system. First, the legal system has structure. The system is
constantly changing; but parts of it change at different speeds,
and not every part changes as fast as other parts. There are
persistent, long-term patterns -- aspects of the system that were
here yesterday (or even in the last century) and will be around
for a long time to come. This is the structure of the legal
system -- its skeleton or framework, the durable part, which
gives a kind of shape and definition to the whole.

The second aspect of a legal system is its substance. By this
is meant the actual rules, norms and behavior patterns of people
inside the system. This is, first of all, "the law" in the
popular sense of the term -- the fact that the speed limit is 55
miles an hour, that burglars can be sent to prison, that "by law"
a pickle maker has to list his ingredients on the label of his
jar.

Finally, the third element of the legal system is the legal
culture. By this Friedman means people's attitudes toward law and
the legal system -- their beliefs, values, ideas and
expectations. In other words, it is part of the general culture
that concerns the legal system. These ideas and opinions are, in
a sense, what sets the legal process going. According to
Friedman, when people say that Americans are litigious (whether
this is true or not) -- that is, that Americans go to court at
the drop of a hat -- people are saying something about legal
culture. Friedman observes that we talk about legal culture all
the time, without knowing it. In other words, the legal culture
is the climate of social thought and social force which
determines how law is used, avoided or abused. Without legal
culture, the legal system is inert -- a dead fish lying in a
basket, not a living fish swimming in the sea.

Law enforcement is one of the fundamental problems in
Indonesia. From one regime to another, this matter has never been
completely resolved. We have already experienced changes in the
offices of presidents, ministers of justice, attorney generals,
chief justices and heads of the National Police.

It is obvious that the supremacy of law has been inadequately
respected so far, while the principle of equality before the law,
which is based on human rights, has also failed. The above
elements, called the Rule of Law, form a principle that is
practiced in countries that respect the supremacy of the law,
including Indonesian and other modern states.

In particular cases politics have influenced law enforcement
efforts in Indonesia. This underlines the opinion that law is a
political product. In reality many legal issues, which are
claimed to be far removed from political matters, actually have a
strong connection with politics. The same things happens when law
enforcement has to involve conglomerates, who have strong
connections with some political figures.

If cases involving mischievous conglomerates had been solved
properly and seriously, all state losses could have be returned,
and the political elite would have also gained political benefit.

According to a survey conducted by PERC on investors in Asian
countries in 2001, Indonesia was placed at the bottom with a
score of 9.22 (on a scale of 1-10, with 1 being the best and 10
the worst).

According to the investors, as quoted by the National Law
Commission of the Republic of Indonesia, law enforcement was
worse than during the Soeharto regime. The reputation of law
enforcers, including the police, judges and prosecutors, is
terrible, and according to the investors, Indonesia is the worst
among the countries rated (by PERC).

Moreover, the investors say that the police act more as
extortionists and criminals rather than law enforcers, and that
the courts' decisions usually favor those who have money as the
courts are easily manipulated by unscrupulous individuals to
thwart the course of justice.

From the above opinions we can see that the investors put a
very high value on the institutions that correlate with the
criminal justice system, starting from the police, the Attorney
General's Office, prosecutors, the courts and the prison system.

According to the National Law Commission, the investors'
opinions are similar to the results of a survey conducted by
Indonesian Marketing Research in 1999.

According to a recent survey conducted by the Asian
Development Bank (ADB), corruption in Indonesia is mainly seen as
a legal problem. New legislation is apparently required, and
government officials must improve their ethics to adhere to new
moral standards. But new laws and new codes of ethics have so far
failed to curb corruption, since they cannot address the roots of
corruption. The eradication of corruption is much more
complicated and more time-consuming than the issuance of new
legislation (See ADB, Draft Country Governance Assessment Report
Republic of Indonesia, September 2002).

In a medium-term perspective, Indonesia needs an
anticorruption strategy that focuses on crosscutting government
functions and on incentives and other human resources management
mechanisms, rather than a general strategy focusing on general
and repressive means to combat corruption.

Action plans spelling out the targets for reform in such
crosscutting need to be developed and implemented to set
objectives and special tasks for all involved institutions.
However, anticorruption steps must be selective, for financial
reasons.

Based on the above facts, we can conclude that the prospects
for law enforcement in Indonesia in 2003 remain uncertain.