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.