The President Post T H E
S P I R I T
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IDR 20,000
I N D O N E S I A
April 2012 /// N0. 34
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The Rule of Law and Political-Economic Stability The rule of law and legal enforcement are related to, and inseparable from, the enduring struggle for adequate rates of economic growth, increased social justice and the imperatives of reinforcing rules at the ground level.
The following steps are critical to emphasize the importance of law enforcement in advancing national stability and development: First, triple the size of our middle class within the next 10-15 years. Locally defined, the Indonesian middle class now consists of roughly 35-70 million Indonesian who in monetary terms spend about $750-1,000 a month on household spending. They are the “affordables” who benefit from the rule of law because their social and economic situation allow them to have a special interest in defending the prevailing political, economic and legal system. They are the professionals in management, banking, accountancy, specialised law, bio-technology, engineering and other professional skills that energize the market economy. Pictures of their “grip and grins” often appear in glossy magazines of the super-rich.
By Juwono Sudarsono
R
ules-based democratic governance is often cited as the necessary political-economic framework for conducting law and order and national stability. But the legitimacy and effectiveness of any legal precept ultimately very much depends on the quality of political leadership. That political leadership is crucial to underpin how particular rules of law is interpreted, enforced and legitimately accepted. An understanding of the political and economic context of law and order is therefore imperative if we are to gain any meaning to the broad notion of law enforcement. In the real world, what transpires is a contest of which sets of which law and what terms of social order are being defined, and what definition of which part of law over what particular scope of legal order prevails over the interpretation and execution over yet another (set of ) legal precepts. There is a saying which stipulates “Where you stand depends on where you sit” which, if elaborated further, transpires to the maxim “Where you sit depends on what you eat, and what you eat depends on where you were born.” Translated into layman’s terms, law enforcement as it stands is always fine for those who benefit from “the system”. If you are a member of the 3570 million Indonesian upper and middle class, and lucky enough to be born into a well-to-do family, have ready access to basic human needs (clean water, adequate housing, affordable electricity, possess life and vocational skills), law enforcement tends to “work for me”. One person’s particular economic station in life translates into a built-in interest to benefit from and support the existing legal system. The social economic system that underpins our political status defines our legal advantage. If a person or group lives well above the affluent line and happens to be entangled in an expensive litigation, then they are likely to be able to afford one’s favorite highpriced lawyer who will represent their interests against the claims of similarly privileged person or group. If, however, you were born into a family residing in one of the water-clogged slum hatches of Jakarta, the “rule of law” is practically meaningless. Living below
But 35-70 million (out of 240 million) who mainly live in urban and suburban centers throughout Indonesia is not quiet the critical mass required to become the transmission belt between the super rich (less than 3% above the upper middle class) and the abject poor who make do on less than $1.50 a day. The central issue of our time is bridging this vast gap of those who can afford the law (or at the very least those who manipulate or buy off the legal authorities) and the vast majority who do not economically benefit or enjoy the good life afforded by the prevailing legal system.
the poverty line means you do not have the social economic underpinnings that allow you “to benefit from the prevailing law and order”. You do not bathe twice, cannot afford eat three square meals and are unlikely to enjoy the pleasure of donning a clean Tshirt after a hot shower on a daily basis. Your poverty makes you vulnerable to the watchful eye of the municipal police who are authorised to forcibly remove your dwellings on behalf of a zoning law on publicly-owned or privately sequestered land. In the real world, there are no slumdog millionaires. If you live in the peripheral areas of Aceh, Poso and Papua, you have another dimension of the rule of law, as local cultural norms and values are not generally accounted for. By and large, in these provinces national laws, acts, edicts and executive orders and legislative as well as judicative rulings are alien to the pre-
vailing cultural and customary norms at ground level. The legal traditions that flow from the Dutch legal system inherited through decades of state succession throughout post-independent Indonesia have no real meaning to the peoples of tribal and sub-tribal cultures in the farflung corners of Aceh, Poso and Papua. These diverse customary norms and values have their own particular notions of what is right and proper. The 700-article Revised Penal Code of the Republic of Indonesia bears little relevance to their lives and to their sense of self-identity. Viewed from a broader political and economic perspective, the rule of law can only have meaning in particular contexts of time and space, linked to all five dimensions of Human Rights: Civil, Political, Economic, Social and Cultural.
The central issue of our time is bridging this vast gap of those who can afford the law (or at the very least those who manipulate or buy off the legal authorities) and the vast majority who do not economically benefit or enjoy the good life afforded by the prevailing legal system.
The liberal narrative of the rule of law stems from a strong tradi-
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tion in the Anglo-Saxon world, which emphasizes the rule of law as primarily civil and political rights issues. That notion 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. That biased interpretation of the liberal notion perpetuates the maxim that ”The rich do what they can, the poor suffer what they must.” Some years ago, European, American and Indonesian businessmen were touting Indonesia as the investment destination to place their bets on. Indonesia was already favorably compared to China. The conference agreed that if Indonesia were to become even more competitive, the government had to resolve the socalled “3 L’s” conundrum: Land, Labour and Legal. The first key impediment to foreign direct investment was the issue of land titles. The ministries of home affairs, law and human rights, agriculture, as well as the agency for national land titlement fought over jurisdiction about which particular legal ruling prevailed about a particular area open for investment. Governors, district heads and mayors in turn wanted their say on each investment deal. Clearly, the question of which law from which government agency prevailed became a classic case of local politics: Who gets what, where, when and how. Interest groups, lobbyists and even rights activists joined in the fray. Foreign companies had to manuever into the legal morass in Jakarta and the provincial offices of the ministries of finance, Industry, and law and human rights.
The second issue had to do with labor laws. At the time, the government had passed legislation in parliament which made it difficult for employees to be fired and which obliged companies to provide “adequate compensation” prior to dismissal. Severance pay covered about six months of basic salary and led to 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. It became a veritable battleground for the many lawyers in their respective specialised fields: commercial, investment, finance, labour. The adage that “a jungle of laws leads to the law of the jungle” became a harsh reality. The police, the Office of the Attorney General, the courts and predatory lawyers – national, provincial and local – became part of the problem that added up the overhead costs of investment. It also ultimately cost Indonesia’s investment competitiveness. The rule of law and legal enforcement are related to, and inseparable from, the enduring struggle for adequate rates of economic growth, increased social justice and the imperatives of reinforcing rules at the ground level. These endeavors must be improved continuously over time. I also recognize that there is no linear correlation between the rule of law (for those who can economically afford it) with equitable national development, just as there is no automatic transformation towards political democratization as economic development expands.
Second, establish clusters of graduated social economic progress so that the myriad rules of laws can fairly and justly resonate in the hearts and minds (and stomachs) of more and more citizens in each province, district and township, concurrent with improvements in our Human Development Index. The governor’s, district’s or mayor’s leadership and management skills in delivering public goods and essential services (clean water, public housing, basic education, electricity, infrastructure, public order) are critical to sustainable national development. There cannot be sustained national development without respect for the rule of law at every level of governance throughout the 2012-2025 period. Thirdly, streamline laws and legislation both vertically as well as horizontally so that there are clearer and fairer legal regimes pertaining to the political and economic goals of carefully calibrated commitments to equitable national development at every stage of development. Matching diverse legal and cultural regimes able to deliver justice through tangible benefits accelerates equitable distribution of monetary as well as non-monetary indicators of social, economic and cultural wellbeing. Less legal clutter will boost acceptance of the law enforcement as more and more people scale up the social economic ladder. Sustained national development entails the matching and enrichment of legal cultures prevalent in Indonesia’s diverse ethnic, cultural and traditional entities. There will be social, economic and political glitches from time to time, but the saving grace of our cultural diversity means that it is patient work at rebuilding and replenishing political, economic and legal consensus that ultimately defines the trajectory of matching the rule of law in support of graduated national development and politicaleconomic stability.
The writer is the chairman of President University Foundation, Cikarang, West Java, and is former Minister of Defence