Thu, 04 Mar 2010

From: The Jakarta Post

By Juwono Sudarsono, Jakarta
The “rule of law” depends on whose terms a particular legal ruling is applied, and how that particular law affects different segments of society.

The political and economic context of the rule of law is critical to understanding what and whose political and economic interests are defended or adversely affected by a particular legal ruling or set of legal regime.

How do these clashes of interest affect the interpretation and implementation after a ruling is passed?
The rule of law, as it stands, is fine for those who benefit from “the system”. If you happen to be a member of the 35-40 million Indonesian middle class, and are lucky enough to be born into a well-to-do family, with easy access to basic human needs (clean water, adequate housing, affordable electricity) and have life and vocational skills, then the rule of law “works for you”.

Your particular economic station in life (“where you stand depends on where you sit”) gives you have a built-in personal interest to benefit from, and secure your standing, in the prevailing legal system.
If you live well above the affluent line and happen to be entangled in an expensive litigation, then you are likely able to afford your favorite high-priced lawyer to represent your interests against the claims of a similarly privileged person.

If, however, you were born into a family residing in one of the water-clogged slums of Jakarta, the rule of law is practically meaningless. Living below the poverty line means you do not have the social economic underpinnings making you “able to afford the law”. Your vulnerable premises are constantly under the watchful eye of the municipal police; who are authorized to forcibly remove them on behalf of a newly passed zoning law on publicly owned land.

If you live in the peripheral areas of Aceh, Poso or Papua, you have another dimension of the rule of law to account for: the local cultural norms and values. In these provinces, and indeed in numerous other places across Indonesia, national legal laws, acts, edicts and executive orders, as well as legislative or judicative rulings are alien to the cultural and customary norms at ground level.

The legal traditions that flow from the Napoleonic and Dutch legal system inherited through decades of state succession from the colonial period through post-independent Indonesia have no cultural relevance to the tribal and sub-tribal cultures across the remote corners of Aceh, Poso and Papua.

These diverse customary norms and values have their own local notions of what is right and proper, defined locally. The legally binding 700-article Revised Penal Code of the Republic of Indonesia bears little relevance to these people’s lives or to their sense of self-identity. That is why, viewed from a political economy perspective, the rule of law must be viewed comprehensively and linked to the five dimensions of human rights: civil, political, economic, social and cultural.

Across the world, of the rule of law stems from a strong tradition in the Anglo-Saxon world, which heavily emphasizes the rule of law, primarily as civil and political rights issues. It very seldom links these rights to the imperative of integrating them with the social, economic and cultural dimensions of both human rights as well as the rule of law.

The Anglo-Saxon legal paradigm tends to transpose the political, economic and cultural settings of Western notions of civil and political liberties, and rule of law on the social and economic settings of developing countries. Many of these countries are still grappling with the need to balance “the Rule of Law for the Rulers” and the “Rule of Law for the Many” who are gripped in economic destitute and despair. At different levels of legal authority, the biggest headaches involve the clash of political and economic interests between “The Ruler’s Laws” pitted against “The Rule of the Lawyers”.

Some years ago, an international conference on investment prospects in Indonesia was held in London. Indonesian, European and American businessmen were touting Indonesia as the investment destination to place their bets in. Indonesia was even favored compared to China. The conference finally agreed that if Indonesia was to become more competitive, it needed to resolve the so-called “3 L’s” conundrum: Land, Labor and Legal issues.

The conference agreed that a major impediment to foreign direct investment in Indonesia was in disputes over land titles. The ministries of home affairs, law, human rights, and agriculture, as well as the national land title agency fought over which particular legal rulings prevailed in a particular area open for investment. Governors, district chiefs and mayors in turn wanted their say (and “cut”) on the deal.

Clearly, the question of which law from which government agency (police, public prosecutors, judges) prevails on the ground becomes a classic case of local politics: Who gets what, where, when and how much? Interest groups, lobbyists, lawyers and even rights advocates joined in the fray.

The second issue had to do with labor laws. At the time, the Indonesian government had passed legislation in parliament which made it difficult for employees to be fired and which obliged domestic as well as foreign businesses to provide adequate compensation prior to dismissal. The ruling on severance covered roughly six months of basic pay. It led several employers, including foreign investors, to balk and look to Vietnam and Cambodia as alternative investment sites.

The third issue focused on the legal system. Here, it became a battleground for the many lawyers of their respective specialized fields: land, commercial, investment, finance and labor. The adage that “a jumble of laws leads to the law of the jungle” became an acknowledged nightmare. The police, the prosecutors’ office and the courts system - national, provincial, local - became part of the problem that added up the costs of investment. It ultimately cost Indonesia’s investment competitiveness.

The Indonesian middle class now consists of roughly 35-40 million people who in monetary terms spend roughly US$750-1000 on monthly household spending. They are the “affordables” who benefit from the rule of law because their social and economic status gives them a special stake in defending the prevailing political and economic system.

They are the professionals in management, banking, accounts, specialized law, bio-technology, engineering and other marketable skills who run the market economy. Pictures of their “grip and grins” regularly appear in glossy magazines of the super-rich.
But 35-40 million (out of 230 million) who mainly live in urban and suburban centers throughout

Indonesia is not the critical mass required to become the transmission belt between the super rich (less than 3 percent above the upper middle class) and the super poor who make do on less than $1.50 a day.

The central political economic issue of our time is bridging this vast gap of those who can afford the law (and at the very least who are able to manipulate or buy off the legal authorities) and the vast majority who suffer economically from the prevailing legal norms.

In each township, district and province, the rules of laws must fairly and justly resonate in the hearts and minds of more and more citizens as improvements in the Human Development Index are achieved in stages. The governor’s, district’s or mayor’s leadership and management skills in delivering essential services (clean water, public housing, basic education, electricity, infrastructure) are crucial. There cannot be sustained national development without respect for the rules of laws at every level of governance, from the village, to the subdistrict and up to the township.

Streamlining existing laws and legislation both vertically as well as horizontally is critical to establishing fairer legal regimes pertaining to the political and economic goals of transparent and graduated national development. Matching diverse legal and cultural regimes, able to deliver justice through tangible benefits, would accelerate the fair distribution of monetary as well as non-monetary indicators of social, economic and cultural well-being.

Less legal clutter would boost legitimacy as immediate benefits transpire over more and more people scaling up the socio-economic ladder. Sustained national development entails the meshing and enrichment of legal cultures prevalent in Indonesia’s diverse ethnic, cultural and traditional entities.

There will be painful glitches from time to time, but the saving grace of our cultural diversity means it is through patient work in rebuilding and replenishing political, economic and legal consensus, rather than authoritarian fiat, that ultimately defines the trajectory of our particular way of serving the rule of law towards equitable national development.

The writer, a professor at the University of Indonesia, is a former minister of defense, of education and of the environment. These are introductory remarks presented at the International Seminar, Pelita Harapan University, March 4, 2010.