Legal Reform for Whom

Legal reform in the form of a revision or formulation of new legislation and policies is a necessity considering that society is changing and always needs new laws.

However, the civil society protest movement against a number of pieces of legislation lately reminds us that laws are not made in the sterile chamber of the House of Representatives alone. This phenomenon shows the growth of the public’s political awareness, which is good news for Indonesian democracy, regardless of the excesses of invisible hands. Or possibly this also shows distrust of the legislature. The process of formulating laws not only requires formal legality, but also social legitimacy. How should a legal formulation be made to meet the principles of formal legality and attain social legitimacy at the same time?

Law and society

Fresh law students believe the law is made to protect society from evil and greedy acts and to distribute justice. However, after studying legal and socio-legal philosophy, and becoming acquainted with critical law theory, they begin to understand that the law can be misused to protect certain groups that possess power or money, by controlling the majority of people who have no power (Hunt, 1986; Unger, 2015). This is done by building false awareness, for example, by saying all formal legal procedures are appropriate. Unfortunately, many legal realities in Indonesia serve as examples to justify the basic assumptions of this theory.

KOMPAS/P RADITYA MAHENDRA YASA

A student activist stands before a banner hanging on the fence of the Central Java Legislative Council (DPRD) in Semarang, Central Java, Tuesday (17/9/2019). The students were protesting against the revisions to the Corruption Eradication Commission (KPK) Law, which they said undermined the nation’s war on corruption.

It is not surprising to see a piece legislation, which is thick with political nuances, lose its social legitimacy. In fact, if a piece of legislation is passed, it immediately binds every citizen and has a broad impact on their lives. Among them are bills that have the potential to threaten the loss of living space in the form of natural resources (land, water, minerals) and lead to state intervention in private space and social relations, while the hottest topic at the moment is the revision of the Corruption Eradication Commission (KPK) Law, the most publicly trusted institution today. Examples of such legislation are 421 local regulations that domesticate women, and cannot be frozen even by the Home Ministry (National Commission on Violence Against Women -- Komnas Perempuan, 2018).

In a critical perspective the priority of legal issues is also highlighted. Why are various bills ratified at the same time? The revision of the Criminal Code Bill (KUHP) must be excluded here. As for a law that is anticipated by the public, the sexual violence eradication bill, only its title has been discussed over the last three years, while there are two victims of sexual violence every 30 minutes in Indonesia.

The methodological question is whether the validity and quality of research of an academic text can be justified.

The next question is whether a law takes into account or ignores the experience and reality of the community; whether the law is beneficial or detrimental, in what ways, and what impacts does it have and on which groups? Various regulations mandate that lawmaking at any level must be based on an academic paper. The methodological question is whether the validity and quality of research of an academic text can be justified.

However, it is common knowledge that social research in government agencies must not exceed the five day administrative limit. Research on social and humanitarian problems cannot be carried out "instantly". The study must produce a narrative of the experience, reality and world view of the community members regarding the issue in question. Furthermore, there has to be a policy impact analysis or regulation impact analysis (RIA) on the bill, so that the legislation does not conflict with a sense of justice.

The poor quality of legislation and policy is evidenced by the lack of development in the fields of food, energy and health and in the automotive and maritime sectors. Likewise the innovation and creativity of scientists is limited by poor regulations.

KOMPAS/WAWAN H PRABOWO

House of Representatives Legislation Body (Baleg) chairman SupratmanAndiAgtas (left) shakes hands with House of Representatives (DPR) Deputy Speaker FahriHamzah during the handing over of a report on deliberations of amendments to Law No. 30/2002 on the Corruption Eradication Commission (KPK) on Tuesday (17/9/2019), during a House plenary meeting. The DPR and the government agreed during the meeting to approve the KPK bill.

Rule of law

It is important to test whether a legal formulation meets the rule or law, an umbrella concept needed to protect citizens against state power. The understanding of the rule of law continues to grow because of various debates, especially about its function, whether the rule of law is only aimed at protecting citizens of the state, or also includes protection of citizens related to rights and ownership. The substance of the rule of law is grouped into three categories, (1) procedural, (2) substantive and (3) control mechanism, each of which is the result of a long debate (Bedner, 2010).

In the procedural category, the state is obliged to be governed by law, not by individuals, and the government must abide by the law. Here there is a formal legal element that requires the law to be clear, certain, accessible, predictable and widely applicable. The last element is democracy, which is not necessarily meant to be a matter of the most votes being won when it deals with issues of justice and humanity.

A number of requirements must be met to effectively protect citizens from excessive state power. The substantive category requires the law and its interpretation to refer to the principles of justice, fairness and due process of law. Based on theoretical debates, the next element of law must contain, (1) protection of individual rights, basic political rights and ownership rights and (2) protection of human rights groups. Finally, the control mechanism category requires giving disputing parties access to judicial independence. Today, the control of power is not only limited to Trias Politica, but has seen the birth of the Ombudsman, tribunals and various commissions including the National Commission on Human Rights and the Corruption Eradication Commission (KPK).

Legal theorists must collaborate with other legal experts and social humanities scientists.

Based on these three categories of the rule of law, it can be checked whether a piece of legislation meets the requirements. If it causes a (loud) protest by the citizens, it means there is something wrong with the implementation of the rule of law. Today, the concept of the rule of law is continuing to be developed through the study and application of the concept of access to justice, especially for marginalized groups. The law regulates what is and is not allowed in human relations. Legal texts, ideals, philosophies and the spirit of justice are formulated as a guideline for community life and dispute resolution. However, there is a gap between legal norms as ideals and substantial justice in practice. To close this gap, legal studies need a cross-disciplinary perspective. Legal theorists must collaborate with other legal experts and social humanities scientists.

The civil society movement opposing legislation shows that legal issues cannot be approached textually and dogmatically. The words in the article cannot be debated in black letters, as if there is no room for contemplation and questioning of whom the law is for. In fact, it is almost impossible to separate the law from society, culture, politics and the economy. The law cannot be assessed in an empty space, especially when society is developing very fast thanks to digital technology.

KOMPAS/RADITYA HELABUMI

Sulistyowati Irianto

Legal reform is a matter of legal development that aims to provide affirmative justice for marginalized groups seeking justice. The history of legal development in Indonesia, as in other countries, shows its failure (Caroters, 2006; Golub, 2006). Legal development has been top down, designed by the elite, without adequate knowledge about the operation of law in society. A process of making law that ignores the reality of society, even harming it, is contrary to the rule of law. Certainly it endangers the future of Indonesia, the largest Muslim-majority democratic country that has been admired by the world for being capable of caring for diversity. This has been weakened by its implementation of the rule of law.

Sulistyowati Irianto, Professor at the School of Law of the University of Indonesia