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.