Mon, 14 Jul 2003

Toward the rule of the few

Ferdinand T. Andi Lolo, Ph.D Student, University of Auckland Law School, New Zealand

We have heard of court rulings which sentenced high ranking state officials to imprisonment after finding them guilty of abusing their authority causing substantial financial loss to the state -- which essentially means misusing the people's money. The same institution has also sent a homeless man to jail after finding him guilty of stealing a pair of sandals at a mosque.

All were found guilty and received a prison sentence; however, the well-connected officials in the corruption cases did not go to jail because the court did not order them so whereas the poor fellow in the sandal-stealing case was ordered to serve his term with immediate effect. We can expect to see more such strange paradoxes in court rulings.

The rule of law itself is not a law or a rule of the law; it is a rule about what the law ought to be. It espouses complex and intertwined values supposedly upheld by society as a whole. Besides a legal ideal, it is also a political and social ideal. Although abstract, it can be materialized, in the legal sense, if the authority and the people accept its supremacy.

There is no provision in the Criminal Code that makes it imperative for the court to order a convicted criminal offender to be sent to prison immediately after his or her sentence is handed down.

Hence such court rulings are perfectly legal. Yet legal is one thing and just is another. The essence of the rule of law lies in its principle of justice and not in its legality. Unfortunately, legal authorities have blurred this crucial difference. Every policy is measured by its legality or its illegality. Whether such policy accords the sense of justice prevailing in society is not a real issue for them.

Such authorities warn anyone criticizing their policies that the criticism should be carried out "within the corridor of law or else they will face the strong arm of law." This legalistic attitude has barely changed since the fall of Soeharto's New Order.

If our legal system values legality more than the principle of justice, can our legal system be confidently claimed as a system that really strives towards achieving the rule of law?

There are three classical requirements which any legal system must fulfill above all others so that it can even claim to be considered as constituting the rule of law. They are that laws must be general, equal and certain.

Law must be general. It means law has to provide the same treatment to all people. When the law says one has to go to jail for an offense he has committed, the judges are under their inherent obligation attached to their profession to be faithful in implementing what the law has declared despite the fact that no written provision literally inhibits them from acting otherwise.

Thus the judges must order each convicted criminal to immediately serve his/her prison time for the offense(s) they commit, irrespective of their social status or their political connections.

Our constitution also guarantees that every citizen is equal before the law. What judges ought to examine is what has been done and to what extent such a crime has damaged society, not only who is guilty of the crime.

The differences in opportunities for "those who know nobody" and "those who know everyone" is a reality outside the court. However, the court must recognize that social differences do indeed exist, such differences must not cloud the judgment in delivering justice. Such differences must not be used as a rationale behind court rulings to benefit particular people.

Finally, the law must be consistent. When the court hands down a verdict and a sentence to one person, it has to do the same to others so society will get the right message that the law is consistent. Court rulings that stop short in completing the proper administration of justice set a "biased" precedent for the campaign against the rule of law.

When law is created based more on circumstance or situation rather than principle, then uncertainty and inconsistency will reign, and this encourages corruption. We are clearly far from moving closer to the rule of law -- instead we are becoming much closer to the law of the few, as we were under the former regime.