Rule of law or tyranny of law?
By Donna K. Woodward
MEDAN, North Sumatra (JP): It is the battle cry of reform: the supremacy of law! And in the last 16 months there has indeed been an attempt to hold alleged perpetrators of corruption and human rights violations accountable before the law. Why then has the effort been such a disappointment? Some blame the lackluster performance of prosecutors on the Attorney General's Golkar loyalties.
Others cite the endemic corruption within the judicial system. And the inadequacies in the laws themselves are a third impediment to justice.
A further explanation may lie in the principles and style of legal interpretation and administration that are operative in Indonesia's contemporary legal system.
In using the law there is, or seems to be, an exaggerated reliance on the words of the law and an under-reliance on the purposes behind the words, the statutory intent. Where legal text is ceded too much power, law becomes a tyrant instead of a guide.
We see repeated examples of law tyrannizing justice. Documents submitted to court with an error in the spelling of the accused person's name, or in his/her title, have triggered the dismissal of indictments and required protracted procedural replays.
Another version of enslavement to words might be seen in the recent statements of the Jakarta Governor. A certain decree provided that Jakarta councilors would be given vehicles. In the face of public criticism the Governor answered, "Sorry, but since there's a decree, what can I do?"
It is as if words once written are endowed with mystical, immutable authority -- at least what is written is in the interests of the authority figure.
Can a modern justice system arise out of such legal fundamentalism? Probably not, just as technical or industrial progress would not have been furthered by mediaeval religious fundamentalism. Life has too many permutations and variations; societies need laws that can accommodate the possibilities and the ambiguities.
If philosophers and astronomers of the first two millenia had continued to interpret the words of their religious scriptures literally -- as religious leaders sometimes they must -- science could not have developed to accommodate growing populations.
So too in relation to law. If statutory construction is governed by linguistic fundamentalism, changes in legal forms might well have only superficial consequences. Textual change alone will not promote a more just legal system.
Text exists within a context. For law, context is multi- dimensional: the statutory history and intent, and the human or social situation in which law is invoked.
Attention to the text divorced from these contextual elements results in the kind of corruption-riddled justice system we now see. To say that legal text is not in itself the complete law is not to suggest that text is unimportant. It does not mean that laws revision is not essential. It certainly does not mean that application of specific textual provisions should be disregarded. It means that legal texts need to be considered in context, in order to be understood correctly.
The challenge for those who draft and administer laws is to do so in ways that promote stability and predictability while affording reasonable flexibility. Now, on the one hand Indonesia's legal system is administered overly legalistically, as illustrated in the examples above.
On the other hand, everything can be arranged (bisa diatur) for a quid pro quo. For a price any requirement can be overcome; if no consideration is forthcoming, this wonderful flexibility is replaced by rigid, probably prolonged enforcement of rules. Corruption has destroyed both the constancy and the flexibility of the present legal system. Legal reform means new laws.
But it also means reviewing the dynamics of law: those underlying principles by which law is interpreted and applied. The current legal system seems devoid of an internal dynamic other than that of corruption.
Personnel can be replaced and corruption can be discouraged. Laws can be rewritten. But to move from the tyranny of law toward the rule of law takes more than rewriting words. It takes more, even, than recruiting honest practitioners. The legal system needs the support of a legal pedagogy that encourages multi-dimensional reasoning, imaginative brainstorming, and independent analysis of ideas in place of slavish dogmatism and textual fundamentalism.
Until the legal system adopts an approach to lawyering and adjudicating that embraces the purpose of law as well as its text, it is hard to see how the legal system can become one that promotes not just compliance but justice.
The writer, an attorney and former American diplomat at the U.S. Consulate General in Medan, is president director of PT Far Horizons management consultancy.