Hikmahanto Juwana, Jakarta – This newspaper has published various opinions from writers discussing legal conditions in Indonesia. The articles seem to identify the sources of weaknesses in law enforcement here.
Basically there are three categories of challenges facing law enforcement in Indonesia. First is the challenge in making substantive laws. Second is the weakness of law enforcement agencies. Third are the challenges related to the legal culture.
Making substantive laws is a challenge since lawmakers do not pay sufficient attention to ensure the laws they create can be implemented effectively. Lawmakers assume that the regulations they make will be automatically implementable and enforceable.
Laws are made at the national level without taking into account the gaps that exist in different regions in Indonesia, including legal infrastructure.
Laws are often made by reference to the conditions in Jakarta or in other big cities. Without adequate legal infrastructure, laws and regulations cannot be effectively enforced as intended. Many laws thus become dead letters.
Furthermore, laws and regulations are often made unrealistic. This is due to laws being made at the "order" of the political elite, foreign countries or international financial institutions, and even as a result of Indonesia's becoming a party to certain international treaties.
The making of such laws usually is not concerned with how they will be enforced. As long as their is a trade-off for making the law, law enforcement is hardly an important issue. This indicates that such laws are made with no real intention to enforce them. They are thus merely symbolic.
The second category of sources of weakness stems from the agencies enforcing the laws, including the individuals in these agencies.
Many have pointed out that law enforcement is weak because of the influence of money. In every line of law enforcement, the individuals are very much prone and open to the opportunity of corruption and bribery.
The other factor influencing the weakness of law enforcement is the fact that law enforcement has become a political commodity in Indonesia. During the Soeharto administration, the use of law enforcement as a political tool was prevalent.
Law enforcement could be arranged when those in power wanted it. The actions of law enforcers could be dictated, and even intervened in, by those in power.
Another problem causing weak law enforcement is selective enforcement. Corruption suspects and petty theft suspects are often not treated differently. And suspects with power and money often receive special treatment.
Law enforcers seem to take sides only with the rich and rarely if ever with the poor. The law tends to be on the side of those who hold positions and have connections with legal officials or access to the legal system.
All of the above is caused by the mentality of the law enforcement apparatus, which tends to look at suspects in terms of position or social status, rather than focusing on the alleged crimes. The higher the social status one has, the more reluctant the apparatus becomes to pursue matters.
The next source of weakness is that legal institutions are filled with mediocre-quality individuals. This is a result of the law being marginalized, with the brightest law graduates pursuing employment in the private sector.
Given the public sector's failure to attract individuals possessing knowledge and integrity, coupled with indications of bribery and corruption in the recruitment process, it is foreseeable that law enforcement will remain weak, perpetuating the role of money in law enforcement as part of a vicious circle.
Another issue with law enforcement agencies is the limited budget. Budgetary funds allocated by the government for legal infrastructure and the salaries of employees of public legal institutions are grossly inadequate.
Another concern, for some litigators it is unimportant to know the law. What is important is to have the right connections with individuals in enforcement agencies, such as judges, prosecutors or police.
The third category of sources of weakness in law enforcement is the legal culture in Indonesia.
Indonesians facing the legal process, especially those living in big cities, will do anything in order not to lose or to avoid punishment. This indicates that Indonesia is a victory, rather than a justice-seeking society.
It is not surprising, therefore, that in seeking victory, all possible means are explored, legitimate or otherwise, for the sake of gaining the end result.
The typology of a victory-seeking society is an issue for law enforcement agencies, especially when they lack integrity and are prone to bribery. A victory-seeking society is likely to see power and money as means to achieve victory or avoid punishment.
Bearing in mind the typology of Indonesian society, those who face the legal process will prefer advocates who have the right connections over advocates who understand the law.
Another source of weakness is the attention in the mass media. Whether we realize it or not, law enforcement in Indonesia has become a media circus since the press is driving law enforcement.
The attention afforded to law enforcement by the press is certainly very positive, as over the longer term it hopefully will lead to increased seriousness or professionalism in law enforcement.
What requires our attention, however, is the temporary nature of the attention. The fluctuating dynamism in law enforcement in a case appears to be dependent on the mass media.
If the media is willing to place a case in the headlines for a continuous period of time, legal institutions are likely to work more quickly and tend to be more responsive. However, when the same case disappears from the news, so does law enforcement.
At present, many in Indonesia are undertaking various measures for improvement. It is neither easy nor simple to resolve and correct the many weaknesses that have overshadowed law enforcement in Indonesia.
[The writer is Professor of Law, University of Indonesia. He can be reached at hikmahanto@yahoo.com.]