Anomaly of Law in Indonesia

KOMPAS/PRADIPTA PANDU MUSTIKA

Ilustrasi

In the history of this republic, the enforcement of law has contributed to the logic of the birth and development of this country. At the beginning of the establishment of this state, the law was upheld not by a well-ordered system, but by reformers who had the intention to uphold the law.

Of course we understand well, at the beginning of the establishment of this state there had not been any consideration to build a system in an established way. What was available was a glance of thought to have a mechanism related to law enforcement. The 1945 Constitution up to various laws and regulations experienced changes and improvement efforts. However, there was the birth of people, who enforced the law with enthusiasm and ethics. Their names are of course already imprinted in the historical path of our law enforcement.

Now, everything should have changed. Building a system is an obligation that is impossible to solely be burdened on people. We have been independent for more than 73 years. It was calculated from the reform era that it has now been more than 20 years old. Our legal substance certainly has improved. However, if it is calculated up to the quality of its law enforcement, it has not shown the expectation being imagined. Of course there are many problems, which are not as simple as writing in this limited space. However, there are at least a number of indications that seem to be the trigger of that condition.

Several indications

First, we like to play on concepts, but easily leave them. Sometimes there are reasons to build our own system, but what happens is a funny structure which is created by neglecting the concepts being expected. For example, about the strengthening of the presidential system. The recognition is only wishful thinking when it is faced with the system being built. Fajrul Falakh (2003) called it “parliamentarianism through the back door”. Saldi Isra (2006) wrote with the term “parliamentaryism heavy”. Despite the strange condition, we remain happy and consider it not to be a problem. Even, the proposal to revive the State Guideline (GBHN) will take us further to the concept of parliamentaryism.

More surprisingly, both the president and the House of Representatives (DPR) seem to have no problems with the idea of reviving the GBHN. In fact, it is the president whose authority will first be eroded as befits in a presidential system. Simply put, if GBHN is revived, how is the president\'s accountability in implementing the GBHN? If the president has to be responsible to the DPR and Regional Representatives Council (DPD) or as the People’s Consultative Assembly (MPR), welcome to the concept of parliamentaryism. Not because there must not be parliamentaryism, but change the basic agreement first when it intends to strengthen presidentialism.

This is not simply a matter of presidentialism and parliamentaryism system, but entering to all matters related to it. For example, the president is controlled in implementing policies and how the concept of its supervision will be. Pelizzo dan Stapenhurst (2014) described how unusual a presidential system is stronger in its supervision than the parliamentary system. Indonesia shows that. Even so in legislation, Saldi Isra (2008) wrote about the legislation practice which is closer to parliamentary model than the presidential.

Second, we like to build institutions which are then given a function far from the institutional expectations and description. Look at the messy condition of DPD. The DPD is presented as a substitute for regional representatives and is a representation of space, the balancing of political representation through the DPR. DPD is a representation of space. Full stop! However, the presence of the DPD seems as if it were unexpected. It nearly becomes "covert unemployment". It is not the DPD\'s fault, but the construction of Article 22D of the 1945 Constitution, which deviates far enough from the actual division of two parliamentary rooms. "Odd combination between high legitimacy and very low authority" combination in the language of Sthepen Sherlock (2008).

And, the "dwarfed" Article 22D construction, which has increasingly been dwarfed in the Law on the Composition and Position of MPR, DPD, DPR -- currently MD3 Law [MPR, DPR, DPD, Provincial/City Legislative Counciles (DPRD)] -- whose deliberation meaning on certain draft law is limited to the certain stages that leads to the approval of the law. The remaining roles are "recommendations", which may or may not be present, and are treated as inputs only -- whether to be followed up or not is not a problem at all. Not stopping there, its presence is further stunted by the act of letting political parties enter the DPD room. Fortunately, the Constitutional Court (MK) gave a verdict that straightens that logic. However, we know, this is still being resisted -- more surprisingly -- by the DPD members themselves.

The issue of building institutions is also not only in the DPD. Try to calculate how many institutions we have built, but we have not managed to tidy them up institutionally. Many are even left to overlap. For example, in the maritime region we allow so many institutions there to overlap and be uncoordinated, such as the Ministry of Maritime Affairs and Fisheries, the Navy, Bakamla, and the water police. The eradication of corruption is the same. We let the Corruption Eradication Commission (KPK), the police and prosecutors fight in the same area in the investigation of corruption cases. Instead of getting coordination and reinforcement, it even becomes a competition and negates each other.

Third, we nearly have no legal politics that is strong and sufficient in conceptualizing the legal politics as the basis for policy making in legislation. At least if the parameters which were written by Mahfud MD (2011) about the legal political concept of a law which is measurable from three things, namely the expected legal blueprint, the tug of war of political interests during the deliberation, and the ability to ensure its implementation, can be done, the three are not balanced. The larger focus on the second benchmark, namely the tug of war of political interests reinforces the views of those who say that in this republic the law is no more than a result of mere political interests.

Look at the substance of our legislation. Starting from the 2018 National Legislation Program (Prolegnas) list where there are 50 bills, how many of them actually "deserve" to become a law and in fact its material content must be a law. Similarly, the same question applies for the 2019 Prolegnas, which contains 55 bills. It is natural, therefore, if our legislation becomes a kind of "horse lust, chicken power". There is not much that is resolved for a short period of time, even with the recess of the DPR, which is increasingly being multiplied. Poor performance is subsequently claimed as a result of political year preparations even though it really could not be the reason because previous years also showed more or less the same legislative performance.

Still around legal politics, let\'s talk about our legal politics to eradicate corruption. To put it simply, what is actually our attitude towards eradicating corruption? Do we want to distinguish the concept of handling petty corruption or simple corruption by needs, with massive corruption by greed. Until now we have not had any agreement, even the policies that really will be taken from those choices are left unmanaged. A kind of thinking about the degree of corruption. Which is actually "evil" corruption and

which one with the smallest degree of evil. We do not do this, so it is natural that in a number of areas there is a big suspicion of handling "small-scale" corruption and neglecting "big" corruption.

Including the matter of conception. We have ratified the United Nations Convention Against Corruption through Law Number 7 of 2006, but the many conceptions have not been corrected. We allow the Law to Eradicate Corruption Crime to remain as it is. Private corruption, illicit enrichment, and trading influence are only three of the many things we do not enrich in our law.

Finally, we only get the perpetrators. Becoming prisoners in prison, which later with a large capacity of money, they can turn a prison into a "luxury" place, and even go out of prison as they like. We can argue about the inhumane concept of our imprisonment, etc., but there, three are issues of inequality treatment due to the capacity to buy such luxury. Once again, in some cases, we only get the prisoners, while other countries "harvest" money by imposing large fines against the foreign private company is bribing Indonesian officials.

Even deeper we do not have a clear legal politics in the area to what level the strengthening of corruption eradication will be. Will there be strong punishment, maximization of asset recovery, or at what? If we want to detain people or the return of the lost state assets, we do not its blueprint. However, once again, everyone is calm. Policy makers seem to be more absorbed in technical thinking, with quick wins compared to conception. Therefore, the basic concepts have never been put in place and the blueprint is not spread out.

Dualism

Fourth, law enforcement also seems to stop due to the behavior of law enforcement officials themselves. The rising number of judges who were arrested did not make the Supreme Court (MA) sit back together with the Judicial Commission (KY) to improve the areas of supervision, guidance, and recruitment of judges. The judges are even busy questioning and rejecting the authority of the Judicial Commission in connection with the selection of judges as contained in several laws on judicial authority through judicial review at the Constitutional Court. The quality of judges\' verdicts is nearly neglected.

We can imagine, how can the law revoked by the Constitutional Court be used as a backing for a verdict? It has even been followed by verdicts on the material test and State Administrative Court (PTUN) for the conception and actions of the General Election Commission on the nomination of DPD members from political parties. The Supreme Court even straddles the Constitutional Court\'s decision. Not just straddling, the Supreme Court seems to say the Constitutional Court has mistakenly laid the basis for the decision to apply in the future (prospective). The Supreme Court has acted as if it were the appellate institution of the Constitutional Court\'s decision.

This problem actually comes from the dualism of establishing the Constitutional Court and the Supreme Court. If we open the history, the dualism can actually come from a strong legal thought, but it can also be due to an unresolved ego. The Supreme Court wants the power of judicial review to be entirely below it, like in America. Meanwhile, the founders of the Constitutional Court hope to be separated because they do not believe in the Supreme Court, at the same time encouraging the Austrian model. The point of its compromise is that the Supreme Court becomes court of justice and the Constitutional Court is court of law, but a part of the judicial reviews are placed under the Supreme Court.

Therefore, what happens is like now. The continuing dualism which negates each other. Even in such a condition, we are still relaxed as if all the problems are just spices from the law enforcement. The idea of making one roof judicial review has been around for a long time, but it has not been discussed properly.

Here we also just talk about public law, not the private one. The boundary between the two even frequently becomes a problem. This reminds us that we have a problem to solve the big problem that is often mentioned by Lawrence Friedman as a problem at the level of legal substance, legal structure, and legal culture. The three things are like a machinery for the moving of a mill. Without all three of them, it is impossible for the mill of law enforcement to move normally. And, thus far we have left the abnormality as it is. We put the anomaly, consciously or not, while at the same time there has been no strong intention to improve. (Zainal Arifin Mochtar, Lecturer, Law School, Gadjah Mada University (UGM); Researcher, the Center for Anti-Corruption Studies (PUKAT), UGM Law School)