Reform vital in legal sector

Reform vital in legal sector

By T. Mulya Lubis

JAKARTA (JP): The legal sector is trailing behind other
sectors. Historically, from colonial times, the law in political
life has always been employed as an instrument of devide et
impera (divide and rule) and repression, while in the economic
realm, the law often plays its role as an instrument benefiting
businesspeople and capitalists.

So the law obviously has not optimally contributed to
democracy and social justice, especially considering that court
jurisprudence is not always properly treated as a legal source.
At this juncture, the law is not only void of neutrality, but it
even takes sides with the ruling elite and businesspeople.

The role of the law has not changed much since our
independence in 1945, particularly because the existing legal
instruments are the legacy of colonial laws. It is worthy of
note, however, that many legal products in the era of
independence, including those produced during the Soeharto
administration, continue the colonial legal policies translated
into idolization of stability, security and order, and economic
growth.

The oft-intimated policy of even distribution of income has
turned out to be more of a political statement (wishful
thinking). It is very difficult for a legal policy like this to
be on the side of democracy and social justice.

The resulting legal products, consequently, have shackled our
civil and political rights, as we have all experienced with the
enforcement of the law during general elections, the law on
political parties and the functional group, the law on the
structure of the People's Consultative Assembly (MPR), the House
of People's Representatives (DPR) and the regional legislative
assembly (DPRD), the law on mass organizations, the law on
referendum and the law on principles of the press.

In the economic sector, our legal products, some of which do
take into account the interests of the common people, generally
side with businesspeople and capitalist, such as the law on
foreign investment, the law on domestic investment and the law on
the capital market.

Please note that deregulatory packages have also turned into
legal products which, despite their legal validity, raise doubt
in that they are enforceable as instruments benefiting
businesspeople and capitalists.

In this context, our compliance with the legal products of the
World Trade Organization has made it difficult to protect the
interests of small and medium-scale businesspeople and consumers.
Unfortunately, the internationalization of the laws in the
economic realm, which apply the principles of nondiscrimination
and national treatment, will eventually make this country a mere
pocket of the latest form of economic colonization.

The judiciary is the most important part in the legal sector.
It is no longer a public secret that our judicial institutions
and judges are known to be not only restricted in their freedom
and self-reliance, but are also infected by corruption, collusion
and nepotism.

Unless reform is carried out in the judicial institutions and
in the corps of judges of all levels, legal reform will become
stuck. In this context, legal products such as the law on the
principle of judicial power, the law on general judiciary and the
law on the Supreme Court need immediate revision and/or
replacement.

The main challenge is to make a judicial institution one that
translates the law in all fairness and impartiality in our social
life. Especially in respect to the Supreme Court, the expansion
of the right to exercise judicial review of a law is absolutely
necessary if we wish to see legal control over legal products of
the government and the DPR, which may well violate the
constitutional principles such as democracy, human rights and
social justice.

It is no exaggeration to conclude, then, that the right to
judiciary review indicates acknowledgement of the supremacy of
the law in a law-based state. Therefore, naming legislative
review as the most appropriate instrument for Indonesia in this
context is tantamount to subordinating the supremacy of the law
to dominant political interests.

The demand for legal reform is a historical necessity.

The most urgent legal reform agenda in restoring civil and
political rights is the revocation of repressive legal products
(the Subversion Law, hatzaai artikelen, and so forth), the
revision of nonfacilitating legal products (the law on general
elections, the law on political parties and the functional group,
the law on the structure and the position of the MPR, the DPR and
the DPRD, the law on mass organizations, the law on principles of
the press).

Also, the issuance of reform-supporting new legal products (a
law on public information and others) are equally urgent.

In the economic realm, it is of great urgency to issue legal
products which may better protect small and medium-scale
businesspeople and consumers, such as the antimonopoly law, the
law on consumer protection, and so forth).

The above mentioned total legal reform would eventually lead
us to political and economic reforms. The goals of our nationhood
and statehood, underlined with a longing for democracy and social
justice, can be reached when legal reform measures are taken in a
planned, speedy and sustainable manner.

The writer is a member of the Working Group of the
Forum for Democracy.

Window: The role of the law has not changed much since our
independence in 1945, particularly because the existing legal
instruments are the legacy of colonial laws.