Under rule by law, offenders are rewarded

Under rule by law, offenders are rewarded

Luhut M.P. Pangaribuan, Lawyer, Jakarta

The basic issue underlying today's legal crisis is how to free
legal policy and practices from what may be termed "rule by law",
and then how to restore the rule of law? Despite the reforms
touted by three presidents since the resignation of Soeharto,
rule by law still prevails.

The rule of law basically requires a situation where all deeds
and decisions, from the level of the people up to the state
administration, always abide by the law, not a semblance of, or
quasi, law.

Despite the formal end of the New Order regime, its legal role
and status still exists. Rule by law was a basic strategy
employed to maintain the power of the New Order.

The laws were drawn up and enforced basically for the sole
purpose of legitimizing the actions of those in power. Rulers
here can be those with power either over in the political or
economic fields.

Therefore, over decades we became familiar with the legal
jargon of the New Order: that the law must "secure the results of
development" (read: politics). As a result, the law was made
subordinate to the wishes of the powers that be.

In practice, it is not so easy to distinguish the two kinds of
legal environment, especially in the context of our culture,
which regards the fiat of officials as being tantamount to law.
Rule by law is evident from the fact that the politically and
financially powerful are beyond the reach of the law. This
reality is indicated by the shift in legal mechanisms -- where
the source of the law is not an institution, but an individual.
Clear examples of this are reflected in the buzzwords "national
consensus," "sole representation," "presidential directive" and
so on. Today, lobbying between the political parties has made the
law ineffective, such as the plan to extend conglomerate debt
settlements beyond the time allowed for the repayment of the
debts.

Instead of being punished, violators of the law are rewarded,
as a result of such political lobbying. Thus, in the New Order
period, for instance, many legal products were defective -- and
instead of laws, they took the form of presidential decrees and
government regulations in lieu of laws. Today, no real decisions
are taken until the people have forgotten the original
controversy, especially in the fields of corruption, collusion
and nepotism.

There is also the question of the discretion that exists among
law enforcers, one that can lead to uncertainty and confusion in
law enforcement. The poor performance of rulers can be hidden
behind this discretion. The discretion available to the police or
prosecutors in taking legal action or imposing measures such as
detention fall within this category.

So many large scale cases of corruption are not being brought
to trial -- but smaller-scale cases are brought to court quickly.
Former chief of the State Logistics Agency (Bulog), Beddu Amang,
was detained on allegations of corruption involving Rp 40
billion. But Bustanil Arifin (another former Bulog chairman), who
was implicated in a case involving an even bigger sum, was only
charged with misusing Rp 10 billion. Such discretion in law
enforcement must be removed.

Wide, unlimited discretion in law enforcement has been a
constant feature since the New Order period. The law has become
mere rhetoric, and so the absence of respect for the law has led
to the justification of unlawful acts, like the burning down of
police posts.

Therefore, the answer to questions like whether one should
separate the political and legal processes in cases such as
Buloggate I and II are almost beyond comprehension. The
application of the law in the case of Gus Dur (former president
Abdurrahman Wahid who was ousted following investigations into
the scandal) is treated differently from the application of the
law in the case of Akbar Tandjung. Hence, rule by law is still
the norm.