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. ________________________________________________________________

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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