Real measures badly needed to uphold law (2)

Real measures badly needed to uphold law (2)

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This is the second of two articles examining various aspects
of law implementation in Indonesia.
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By Charles Himawan

JAKARTA (JP): The warnings of the President, issued within
these last four months, should motivate lawyers to do something
concrete to revive the authority of law.

The response of the lawyer, however, must be quite different
from, nor can it be expected to be as prompt, as the response
displayed by the military in the field of security and order.

On April 16, 1994, the President said at a working meeting of
prosecutors that he was concerned at the many violent crimes
taking place. He urged them to seriously work at solving this
problem (Kompas, April 17, 1994).

Aware of this concern, the military immediately responded.
Several "night operations" were launched in various parts of the
country. A great number of guns, knives and bottles of alcoholic
drinks were confiscated.

These concrete actions bore immediate results in the field of
security and order. One can again exercise one's human rights by
taking a walk at night without fear.

If we investigate further, there are in fact no black letter
rules which guarantee any individual can take a safe walk at
night. Many law enforcement agencies, such as the military, the
police and the prosecutors have misunderstood this.

Human rights violations are often considered identical with
violations of written rules.

Violations of human rights are in fact more significant than
violations of written rules. The existing written rules are, for
example, the prohibition against threatening somebody with force
(Article 368 of Indonesia's Criminal Code), including threatening
a motorist to extort money from them; and the prohibition against
hitting somebody (Article 351); the prohibition against damaging
or taking away another's property (Articles 406 and 365), and
certainly the prohibition against homicide (Article 338).

If preventive actions are taken by the authorities to ensure
that all those prohibitions are adhered to, this means that one's
human rights (behind those written rules), like taking a walk at
night peacefully, are guaranteed.

If this right is "elevated", it may thus become the human
right to live peacefully, which is accepted by the entire world.

"Freedom from fear" was the way that the 32nd President of the
United States, Franklin D. Roosevelt, put the concept on Jan. 6,
1941, in an address to the U.S. Congress.

After passing through a long process of negotiations, this
right became a written rule, announced by the UN in its
Declaration on Human Rights on Dec. 10, 1948 (paragraph 2,
Preamble).

In Indonesia, the long process from the concern of the
President over the crime rate to being able to take a walk at
night peacefully did eventually take place due to the support of
the Armed Forces.

This support is clarified by the Chief of the Armed Forces,
Gen. Feisal Tanjung, during a meeting between the Armed Forces
and the Indonesian National Commission on Human Rights in
Cilangkap (Kompas, April 25, 1994).

It is true that without such support, nothing much can be
accomplished by the National Commission on Human Rights.

In the field of law, one's right to seek justice cannot yet be
implemented as can his right to take a walk at night. One still
does not feel safe to seek justice before a judicial court.

Cases like throwing shoes at the judge and using bank notes as
fans during a judicial session will certainly deter one from
seeking justice before a judicial court. In a sense these cases
actually reflect a situation in which the participants in a court
case are actually not equal before the law.

One or another of those involved is stronger than the other.
In such a configuration, justice can hardly be secured.

Contrary to the right to take a walk at night, which is only
implied in laws and policies, the right to obtain justice on the
basis of equality before law is guaranteed by a written rule as
embodied by the 1945 Constitution itself (Article 27, paragraph
2).

Perhaps the time is ripe for lawyers to follow in the
footsteps of the military. Concrete actions are needed to ensure
equality before law. We must prevent a judicial process which
sacrifices justice for other considerations from ever taking
place.

In the past three moths, several cases, which are not
supportive of the movement to revive the authority of law, have
taken place. Cases in regard to tax evasion and the cause celebre
of labor activist Marsinah seem to sharpen the concern of the
people in regard to justice as reflected by Letters to the
Editor, (Kompas March 10, 1994).

And cases like the "Cengkareng" incident in which "borrowed"
printed material was carried by citizens coming from abroad
(Kompas, March 28, 1994) and the "Surabaya incident" which
forbade citizens from speaking in a seminar (Kompas, May 2, 1994)
should be prevented in order to ensure a better atmosphere for
the enforcement of Article 27 (Item 1) of the 1945 Constitution.

The tragic irony is that in these cases, two members of the
National Commission on Human Rights were victims.

Although the lawyers are three months behind the military,
counting from the date of the working meeting of the Supreme
Court on Jan. 23, 1994, perhaps, as one sociologist has pointed
out, it is still not too late for the lawyers to harness a high
level of common will to make the court a repository of law and
justice.

All parties are aware that it is not an easy task to do this,
but concrete actions are needed. One encouraging signal is that
the Supreme Court has decided "to go back to law" as its working
agenda (Kompas' editorial of April 14, 1994).

Two main methods could be used to fulfill Article 27 of the
1945 Constitution.

First, spiritually, judges should take a long, close look at
themselves and their actions and do everything they can to ensure
that they develop the high level of integrity hoped for by
President Soeharto.

This situation certainly reminds us of the thinking of
Immanuel Kant who always marveled at the moral law to be found in
human beings. Although it may seem difficult to achieve such a
moral law within the conscience of our judges immediately, the
Supreme Court could certainly do something toward establishing a
greater sense of ethics among them.

Second, physically, the members of the Law Society of
Indonesia, the judges, the prosecutors and the litigation
lawyers, should sit together, discuss and deal with the material
problems faced.

Perhaps the most prominent and difficult problem to be solved
is the level of the real take-home pay of judges.

Economic development in the last 25 years has shown its
benefits. The quality of life of the people has improved.
Therefore the quality of life of the judges, who have such a
heavy burden should also be taken into account.

If we succeed in overcoming both the spiritual and the
physical problems, we are sure to be able to make the judicial
court a repository of law and justice.

The writer is a professor of law at the University of
Indonesia.

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