The Jakarta Globe, 2 Feb 2010

Elizabeth Besufekad

This past October, Indonesia’s National Strategy on Access to Justice was launched — its main focus being the creation of a framework of laws that affords ordinary people access to justice and enables them to overcome poverty.

Created under the auspices of the National D evelopment Planning Board in collaboration with the United Nations Develop m ent Program, the strategy came after several years of growing interest among national and international policy makers on the role of law in the development process. This is obviously not a new idea, but one that has been proposed by thinkers ranging from Aristotle in the West to Narada and Kautilya in the East. Sociologist Max Weber captured the idea when he observed: “Industrial capital must be able to count on the continuity, trustworthiness and objectivity of the legal order, and on the rational predictable function of legal and administrative agencies.”

The interrelationship of law and economics had an impact on some of the policies pushed by the World Bank and the International Monetary Fund in the 1980s and 1990s, resulting in adjustment programs that promoted market liberalization and deregulation in conjunction with legal reform. However, the legal reform advocated was limited to measures to confer, protect and enforce property rights, and facilitate liberalization and privatization.

These days the emphasis has shifted from strictly economic and legal measures to encompass the promotion of democracy, good governance, adherence to the rule of law and respect for human rights. Many have noted the positive correlation between democratic norms and legal issues not merely in terms of narrow definitions of economic development, but also in the wider sense of social development.

This has led to changes not just in related laws but in broader constitutional reform. It is interesting to note that in the last two decades, more than 65 percent of the member states of the United Nations have either adopted new constitutions or amended their existing charters, most introducing references to democratic norms, social development or specific human rights.

Indonesia is no exception. The 1945 Constitution has undergone successive amendments since the fall of Suharto in 1998, with the total number of articles ballooning from 37 to 73, including 10 new articles on human rights.

However, an improved Constitution and changes in related laws are only the first step. Constitutions guarantee rights only in theory, in reality it is how laws are interpreted in courtrooms and on the streets and how applicable they are to all members of society that make them equitable and give them bite. In other words it is adherence to the rule of law that counts.

In Indonesia, cases abound where the rule of law has been applied to one citizen but not another, seemingly on an arbitrary basis. Further analysis often points to money changing hands somewhere within the judicial system. Even jail sentences and the comfort levels of prison cells have come under public scrutiny recently as richer jailbirds continue to pay to keep themselves out of jail, or if convicted to make their jail time as comfortable as possible.

In such cases everyone is a loser. The rule of law is undermined because public power has not been exercised within the bounds of the law. Judgements are not made logically, rather they are made arbitrarily. Furthermore, the rule of law does not uphold the protection of fundamental rights, but rather to favor one set of rights over another.

Legal systems are meant to be arenas that are free from the fickle and the arbitrary, enforcing constitutional, property and contractual rights, resolving conflicts, and providing protection from crime. They are meant to enforce social and individual rights for those who live within the law and to define actions that are outside of the law. Legal certainty is the cornerstone of both investment and social order, underpinning the achievement of development goals and more broadly, poverty reduction.

Unfortunately the opposite can be true in developing countries. Accessing “alien” institutions and getting lost in a quagmire of legalese can result in a loss of large amounts of money, with judicial structures and strictures, and self-serving legal officials serving only to obfuscate rather than clarify. The poor are especially vulnerable as their resources are scarce and support systems limited, though the rise in paralegal services and legal advocacy groups has at least increased the number of cases going to court.

But it is still true that access to justice is impaired by the reluctance of people to use the law, which in part derives from suspicion and lack of confidence in the legal system and law enforcement officials. These negative perceptions are often reinforced by corrupt judges, complicit government officials and state indifference.

A related issue is lack of popular awareness. People may not know their rights and that makes them susceptible to abuse by those keen to exploit their ignorance. Surveys have shown that 56 percent of the population could not name a single right to which they were entitled. The figure rises to a staggering 97 percent among the less educated.

But one should not be too pessimistic. Indonesia has made steps in the right direction, with a number of high-profile cases of elite figures going to jail. A former president’s son and the father-in-law of the son of the present president have both seen the inside of a jail cell. Law enforcement in a variety of areas is making a difference. New institutions dealing with corruption and human rights are being put under pressure by elites — a sure sign they are a threat and making a difference. The case brought by a hospital against a woman complaining over the Internet about her hospital treatment was finally dropped and justice served. Much of the credit can be taken by the organizers who campaigned over the unfairness of the case. Tens of thousands of dollars were raised for legal fees by concerned citizens through a Facebook group.

But further commitment to the rule of law from political leaders, government and state officials in Indonesia is still needed to keep the momentum of any judicial reform process. Fundamental principles such as the independence of the judiciary, due process of law and presumption of innocence must be advocated and practiced throughout the country. Without such a commitment efforts to improve access to justice are doomed to failure.

There is no doubt that the nation has made groundbreaking changes to its legal system by introducing new laws and institutions. However, the thorny issue of implementation and enforcement is yet to be resolved.

 

Elizabeth Besufekad is a legal adviser for Strategic Asia