Adil W Surowidjojo

Reforming the Law is a very important aspect of nation-rebuilding in Indonesia, and it is one that has received enormous attention by observers domestic and abroad. There have been numerous projects and policies that deal with law reforms and indeed some new and updated laws have already been in effect for some time now. The most pertinent question, therefore, becomes not whether law is being reformed, but under what principles, what kind of wisdom, have those laws been reformed? Rest assured that Indonesia was conceived under highly regarded principles; it is in fact the enforcement of these fine principles that must be handled better in Indonesia. The busway project, for instance, was not in itself a bad thing – and in fact over the past month we have seen it provide comfortable and swift transportation for a significant segment of the population; however, in the context of life in Jakarta at present, it can be argued that the policies designed to support the busway project – the 3 in 1 rule and the exclusive section of the road for the busway itself – were ill-devised and were not motivated by the principles upon which this nation was built, because they were essentially forced into being rather than being a natural evolution of city-landscaping. In short, before the busway was even conceptualized, there are many processes that should have been implemented: to nurture other cities to bloom into centers of growth like Jakarta, thereby creating new jobs and wealth in those areas; to repair and improve Jakarta’s railroads to better serve the commuting population; to do it by the book, basically.

In the same vein, the acquittal of Akbar Tandjung could be viewed by many as a failure of the Supreme Court to uphold the principle of justice it claimed it represented. Instead of offending the masses with rebukes of how they should accept the decision maturely, to respect the edict of the Supreme Court, the esteemed institution should respect the masses and at least come up with a more believable evasion than: “Tandjung was acting under the orders of the highest authority, therefore he is free from all responsibility”. Andi Malarangeng, at a recent seminar on Tandjung’s acquittal, correctly drew a parallel between Tandjung and a military subordinate: on command from his officer, the subordinate must do what he’s ordered to, unless the order defies the principles of that military institution, or, Malarangeng half-joked, the poor person may at least ask for a signed proof that he was ordered by that officer to perform an act that contradicts military principles. People have always been talking, but now they’re talking that if Tandjung was to be brought down, he would very well bring down everyone else entangled in his mess. If true, this would be the biggest cover-up everybody already knew about. And of course everybody knows that the general election is getting nearer and nearer.

The Corruption Eradication Commission (KPK), established with approval from the Indonesian parliament, is a new hope in the country’s fight against legal scandals like the Tandjung acquittal. The success of the Commission, however, hinges a lot on the political will of the government, for although it is theoretically an independent agency, political will has nevertheless been exerted to lessen the impact of any crusade on corruption on certain members of the parliament, in the form of the Indonesian parliament’s failure “to appoint the most crusading candidates as commissioners”, as the Economist (Feb 21^st 2004) puts it. Clearly, somewhere along the way there has been a perversion of the Indonesian political will: it should have been directed at serving the country, and not, as it seems to be happening all this time, at serving oneself. The KPK is a young agency equipped with formidable abilities to combat corruption, so there is hope still that the more ‘crusading’ of the elected commissioners will galvanize the rest into a team that is committed to force the government to transform Indonesia’s diseased political will into what it needs to be for the country to start realizing that it is more profitable to behave economically in a non-corrupt environment. Refreshingly, the leaders of the KPK are aware that the extraordinary abilities awarded to their anti-corruption institution provide them, the Commissioners, with extraordinary opportunities to abuse them, and so have formulated a code of ethics that governs the way a Commissioner should behave in order to reduce opportunities for abuse, with severe penalties for those who violate the code. For example, commissioners could not, under any circumstances receive monetary payment (i.e. receiving an envelope) for accepting speaking roles at functions such as seminars, TV shows, et cetera; in fact the only form of payment that KPK Commissioners and staff are allowed to receive is their monthly salaries. In our modern world, there are many ways to transfer wealth so as to make it undetectable, but hopefully these methods will be pointed out by the general public to be included in the code of ethics as well. This code of ethics is a way for the KPK to show the general public that it means business, and what is important is that the KPK is trying to ensure that it is combating corruption with the Indonesian people. This is significant if the institution is attacking both corruption at the higher and the lower levels, therefore gaining support from the masses by showing that the KPK is doing a lot of good works, while still tackling the bigger fishes who are bleeding Indonesia dry billions of dollars at a time.

On the subject of the upcoming elections, law reforms take on a slightly different, but diamond hard importance: we have to admit that we are new to the concept of democracy, and it is not something to be taken lightly. A common mistake is for people to take democracy to be synonymous with the freedom of speech. This would not be a bad thing if they did not misunderstand the latter concept. Freedom of speech is not just a freedom of expression; it also includes a freedom of other people from the abuse of that expression, in any form. Democracy, similarly, should not encourage people to take up old views and forms of governance and presenting them back to the masses just because they think a democratic society should include everything on God’s green earth, including their backward principles. In short, there should be clearly defined, thorough laws on what Indonesian democracy should be: there must be laws that govern the funding of political campaigns and other aspects of the election process, the filtering process for political parties (now being performed by the KPU) should be improved in its function to weed out the obsolete and unqualified, and there must be some sort of visible effort of the government to embrace democracy in the form of better service to the people. Better service in this sense should be taken as professionalism; in the sense that the Indonesian government must be able to show once and for all that it will abolish all forms of KKN in its ranks. The government already knows how to achieve that state, countless NGOs, foreign corruption watches, and other governments have been telling them how to do it for years. It is tempting to surmise that if only the government would shape up, businesses will discover that behaving cleanly like the rest of the civilized world is much more profitable (for the competitive), but there must be sufficient will for the government first, which we definitely need more of.

There are developments for which we can be thankful for, for instance the fact that the 2004 elections will bring the direct election of parliament members (also in the regions), the president, and the vice president. This is an incredibly significant socio-political experiment that necessitated amendments in Indonesia’s constitution, the UUD 1945, a feat of major law reform since there was significant opposition to changing the constitution on grounds that we should not erase our past. The breakthrough here is reaffirming the fact that the UUD 1945 was created as a temporary stopgap to support our fledgling State back in 1945, and it is necessary to update the UUD 1945 so that it no longer is merely a stopgap (that nevertheless has achieved an almost sacred quality), but a national constitution that realistically supports the nation in these interesting times. Right now, we are witnessing that a lot of people are actually longing for the stable days of the Suharto regime, a strange kind of memory loss that has blocked out recall of the brutality, autocracy, and oppression of that regime. The ability to elect the president and the vice president directly should slowly present a dilemma to these people: if they choose another dictator, they will bring that regime back upon themselves. They forfeit their freedom, and the freedom of their children, for the certainty that their lives will be more predictable under an iron heel. Once this dilemma starts to sink in, they will also discover that the ability to choose their representatives and leaders directly presents pressure on those candidates to align their policies to fit the needs of the electorate. Of course, for this to work in Indonesia, we need transparency and accountability, and this is something that the government has to work on in order to regain the trust of the people: the system can be a good one, but if candidates are able to lie their way into office (as they are enabled by corrupt Statesmen), the whole system will crash.

The Law and Good Governance

Currently in Indonesia, there are virtually hordes of NGOs, domestic or internationally based, with an interest in the implementation of true democracy in Indonesia, the most meaningful of which help with policy-making, law reforms, and the conceptualization of Indonesian good governance and civil society. One and all, their main complaint to the government is the lack of political will. The pertinent question here is why political will is so weak in Indonesia? The quick answer is that we haven’t seen a regime of sufficient strength to govern the country the way it should be governed, not since Suharto’s fall. The strength of the Suharto regime is of course, not based on the principles upon which the country has been built, therefore we have not actually seen a government representative of the people’s will that is strong enough to enforce its policies. This leads us to the implementation of policies in Indonesia, where regional autonomy has been a bane to inter-regional coordination. It has been pointed out by many observers that regional governments have failed to represent and manage their respective regions efficiently and accountably, instead emulating the central government at its lowest points. Economic logic would explain this sort of behavior as rational, that people would always take the path of least resistance to acquire wealth. The important point though, is that such people would never have been able to take their prestigious positions, of course, but for the prevalence of KKN.

            So, exactly how do we encourage the right kind of political will to grow and blossom in a country so devout to the religion of KKN? The KPK code of ethics is perhaps a good precedent, as it acts as a kind of contract between the Commissioners and the people: it shows a commitment to be responsible. Earlier the part of the lawmakers was pointed out in that they must design election laws that weed out the bad seeds. The problem is, where will the good seeds come from? There are always many genuine and crusading politicians out there, who are driven by the need to reshape the country into a place they would like their children to grow up in. Experience has taught us that these individuals are repressed by the majority who follow the KKN way of life: if Indonesia were an Operating System, crusaders against corruption are a bug, not a feature. Therefore it is necessary to ensure that the majority of people who enter the political realm are like these stalwart individuals: Education is a good starting point, every Indonesian knows that the Indonesian education system needs many improvements to be able to compete with the quality of education in the Western world. As we have seen however, many of our representatives are graduates of foreign institutions, and they are still vulnerable to the temptation of corruption; so reforms in the education sector will only be a part of the equation. Another important aspect in rearing reliable politicians must be in the form of incentives: the Law must ensure that the potential entrant into the world of Indonesian politics has incentives to not abuse his/her position (for instance through tighter monitoring), and at the same time maintain that there are still enough incentives for the person to do good works in his/her sphere of expertise.

The direct elections system that we will experience soon is a good step in establishing what Jeremy Pope, who used to be a Transparency International activist, called a National Integrity System, which is an intricate system that not only supports the proliferation of good governance in the government and the private sector (in the form of comprehensive audits and other measures to prevent conflicts of interests and reduce the chances for opportunities to engage in corruption to appear), but also to socialize the concept of good governance to the general public, the media, and agents of reform such as NGOs. In this way, the government and the private sector are presented with frameworks of how to perform their work in an accountable and transparent manner, while the public, the media, and agents of reform become knowledgeable enough to realize that they need to support the establishment of good governance in the government and in the private sector if they ever want things to change.

It may be prudent to say that in order to enforce any kind of National Integrity System, we would need to have more institutions like the KPK to monitor important aspects of the nation where the integrity system could potentially be compromised, so the proper authorities could be alerted. The problem with such agencies (who need to be centralized and independent from the government) is that they need money to function, so a source of (usually significant) funds must be allotted for this purpose. Furthermore, there is always the irony that if these agencies will be able to monitor the people and institutions well, they must be manned by the correct people, and this is difficult if staff is elected by the parliament, at this point in time. Therefore, in our urgent need for reform of the political will of Indonesia, perhaps it is wiser to let someone else elect the staff of these agencies. Which entities in Indonesia have the authority to do this? At present, it is hard to pinpoint such an institution: it may be that a coalition of NGOs interested in building a finer nation should organize the election, or perhaps cooperation with international institutions such as Transparency International, the World Bank, etc. could allow foreigners to directly or indirectly filter the potential staff. This latter idea touches upon a sensitive issue. Indonesians dislike the notion of being directed, ordered around by foreign powers. This may be the intrinsic feeling every nation possesses, that their nation-state should be sovereign in the decision-making process of the nation; or maybe people in power are more interested in fostering xenophobia in the masses, so that their decisions that reject assistance from abroad are accepted and even applauded by the public (as is happening in many other cultures); or perhaps the feelings of having been subjugated by other civilizations such as the Dutch and the Japanese in the past automatically infuriate the romantic (i.e. non-economic thinking) Indonesian. It can be argued, however, that Indonesia is a special case. We are a nation of countless tribes and ways of life, held together by fragile tenets that are rapidly losing adherents in the younger generation. If we are to go on as the nation of Indonesia, we need very much to emulate the behaviors of outsiders who have experienced similar conditions; more importantly, we need to ensure that the values that we need to integrate into our own nation will be integrated, whatever the channel.

Learning from Abroad

For the purpose of finding the right system to emulate, perhaps the European Union is currently the most important case study. It is an economic union of significantly different cultures, which will be joined soon by member states with other distinct manners of running their own countries. In the sense of the new members, one could argue that the old members (which include France, Germany, and Britain) are significantly more powerful and richer than the old members. We can expect in the future to see tugs of war between these two camps, with the richer nations (who will be unwilling to fund growth in the poorer nations out of their own pockets) and the poorer nations (who wanted to get into the EU to generate more wealth for them). It will be interesting to see how the policy-makers in Belgium will adapt to the new entrants, seeing as the current laws that regulate trade within and without the EU are already very complex and exhaustive. Theoretically, Indonesia should benefit from observing how the many member states of the EU settle their differences. For example, policy-wise, it is important for the central authority to always possess more bargaining power, though of course such advantages should be tempered by a measure of freedom for each region to implement broadly stated regulations in the best way that it can. The power of the central authority is also important since, of late, it has been apparent that the EU member states have been going through many altercations that have crossed the line into actual political conflicts, mainly between the richer and the poorer member states but also amongst the more powerful ones (for instance during the Iraq war). When the new member states join the EU, it will be interesting to watch if the EU is able to consolidate the differences of all its members.

The legal system in the EU is more socialist than not however, so if we want to learn from more capitalist examples, perhaps this could be done by observing NAFTA and the like. This is important because the experiments in socialism in the continental European nations have yet to yield impressive results: the crux of the matter is that although it would be nice to have blanket welfare systems (i.e. laws which support the weakest at the expense of taxpayers), but the costs in terms of providing enough incentives for people to actually be productive may be too high. One argument that has been made is that European nations such as Sweden succeeded in their welfare experiments in the past because they were homogenous societies, therefore everyone had the same expectations and were basically living the same life, which makes it easier for people to accept that they are working towards the same benefits under a fair and just law; however, the United States is a relatively new nation that is home to many kinds of societies that are exposed to different ways of life and different risks, so people tend to think that it is unjust for them to shoulder the burden of others who do not share their own views and work ethics. The advent of globalization has spread this way of thinking even across continental Europe, as people are starting to wonder why they should pay taxes to support immigrants who are not interested in being integrated into their culture (such as in France, where they unfortunately form unproductive communities that are becoming more and more isolated). Our nation is a hodge-podge of different cultures, all are yet to experience the full spectrum of opportunities in terms of more varieties of jobs, more research and development in science and technology, more freedom, and other attractive features of a capitalist State, and arguably, we have not done much anyway in the context of creating a welfare state. Perhaps if we take this road first to accumulate material wealth, a well designed welfare system could be implemented. Whichever method we take first, we must take into account the costs and benefits carefully.

As we have discussed, it takes extreme efforts to calibrate the way the Indonesian legal system should work. Unfortunately, it is all necessary, in order for our future civilization to be legitimate, the process must start from the reforming of our laws. There are a few caveats then, which are necessary so we do not pour even more money and effort into ill-designed laws. If the Indonesian law reform project proves to be successful in the future, it is necessary to curb lawmakers from going on to reform every law under the sun, the aftermath of such a venture would likely create bureaucratic confusion of an immense scale. Only time will tell if we will eventually need stronger laws to ease the ability of officials to monitor law-reforming activities to ensure efficiency and accountability. In that vein, to make it easy on ourselves, perhaps it is also necessary to create a filing system of all our laws that will grant law enforcers and the general public the ability to easily access knowledge of the law. At the end of the day, the law provides a framework for living in a modern society that should be the most accountable of all customs. It is therefore imperative that we respectfully award the law our serious and vigilant attention. (aws)