Nationalism and other -isms (like racism and chauvinism) may appear good or bad
depending on which side of the fence you stand.
Indonesia, with all its enormous diversity, has room for progressive humanists pushing
for rule of law and human rights, and xenophobic nationalists pushing against them,
just as do America, Australia, Japan or any other nation.
History never leaves us. And regarding the “purpose of law,” there is
an Indonesian view strongly based in the 1945 constitution which supports the nationalist
and xenophobic side.
In modern Indonesian law institutions, this history may be expressed as unabashed
collusion against anyone, Indonesian citizen or not, who authorities find less desirable
to their personal view of the state.
Quoting from Transparency International's article
Causes of Corruption in Indonesia:
Suharto's highly concentrated and particularistic regime has left weak institutions
and clientelist social structures throughout the country... Acts of bribery and corruption,
for example, are frequently not seen by Indonesian authorities as corrupt practices.
Under Dutch rule, there were once two law codes. The Europeans and non-native Asians were covered by a
comprehensive code known as the R.V. (Reglement de Rechtsvordering) protecting human rights
under strong rule of law. But the Indonesian
native peoples were subject to the looser H.I.R. (Herzien Inlandsch Reglement)
which mixed adat law with prerogatives allowing the courts to make rulings
outside of formal law, with the purpose of protecting the interests of the state—meaning,
of course, the Dutch.
Only the HIR survived. It still forms the basis of Indonesian law.
The 1920s and 1930s, Indonesia’s formative revolutionary era, saw the rise
of fascism, Japanese imperialism, Nazism, Stalinism, all based on the philosophy
that the authoritarian state was the highest expression of the people. The people
were therefore obligated to serve the interests of the state, not the other way
around.
The Japanese during their occupation did away with the more rigorous European law
code, but they kept the HIR. The Dutch had intended the HIR to ensure their control
over the native Indonesians. The Japanese liked it for the same reason, plus it
suited their own view of the proper relationship between people and state.
With Merdeka—the August 1945 declaration of independence—a Constitution
was written quickly, largely by the revolutionary lawyer Soepomo.
Soepomo made his sympathies clear: the constitution set up an authoritarian government
because the people and the state were one. Protection of “human rights”
or “individual freedom” would have been unthinkable, because, in Soepomo’s
view, any individual opposing the state opposed the people, and the will of the
highest leader was therefore the most perfect expression of the will of the people.
Modifications to the Constitution were made during the Sukarno era, tending towards
a more open recognition of law and human rights, but in 1959 Sukarno unilaterally
threw them all out and declared a return to the 1945 revolutionary constitution.
The “will of the state” as interpreted by the supreme leader supported
Sukarno’s drift to the left and his flirtation with the Communists. With the
end of Sukarno’s “Guided Democracy” in 1965, the “New Order”
under Suharto used the same rational for a turn to the right.
This discussion is largely based on an extreme condensation of Chapters 1 and 2 by
Profs. Tim Lindsey and Mas Achmad Santosa in Indonesia: Law and Society,
The Federation Press, 2009. Highly recommended.
Under the HIR, Sukarno, and Suharto views, the purpose of law was always to support
the will of the state, not to ensure rights for the people, and particularly not
to ensure rights for “outsiders.”
In fact, one could easily make the case that Merdeka in 1945 does not deserve the
label of “revolution” at all, because the relationship between a ruling
elite and the people never changed; the Dutch elite were simply replaced with a
native Indonesian elite.
The real revolution came in 1998, or at least began in 1998, and the changes have
been extraordinary. No matter how much remains still to be done, the idea of the
people as the obedient and voiceless subjects of the state is gone forever.
...well, maybe not entirely.
In 2007 I met an Indonesian assistant head prosecutor—a Wakil Kepala Jaksa
Tinggi— who expressed it well.
Finally at 3:30 PM Pak Arthana showed up with an entourage, consulted with his adjunct
in the lobby without looking at us, and then proceeded down the corridor. It was
almost 4:00 when the adjunct appeared again and showed us into Arthana’s office.
Arthana barely grunted an acknowledgment as we entered.
“What do you want?” he asked curtly.
Pak Ketut Kadra started off, Balinese to Balinese. “Pak Arthana, we came here this
morning from Bali to meet you because we have a request. We understand you will
be the new Assistant Chief in the Kejaksaan in Denpasar.”
He grunted again as Pak Maharidzal took over the explanation of the situation. “We
have a request, Pak Arthana, in the prosecution of a criminal case now at the Kejaksaan
in Bali…”
Arthana immediately sat forward in his chair and cut him off. “If you are requesting
assistance in a criminal case, it is a criminal case in whose opinion, a lawyer’s
opinion or the Prosecutor’s opinion? Because the Prosecutor’s office does not necessarily
agree with lawyers. You might have your opinion, but that doesn’t mean you can come
here and tell me what to do about the law. Responsibility for upholding the law
in Indonesia does not depend upon lawyers, it depends on the Kejaksaan.”
Maharidzal had no chance to reply as Arthana lectured him. “Some lawyers seem to
think they can just go here and there, entering reports, making complaints to the
police, to the Kejaksaan Agung, to the Komisi Yudisial. Lawyers are not the government!
Lawyers don’t uphold the law, and I don’t like lawyers who make trouble!”
He grew more heated as he explained that lawyers are expected to work together with
the Prosecutor’s office, they are to support the opinions of the Prosecutor who
represents the government and all the people of Indonesia, rather than work for
their clients, foreigners even.
“You need to remember,” he said, stabbing his finger toward Maharidzal, “who is
your friend? Who do you need to work with? Your relationship with the Kejaksaan
is permanent, it is for your career. Your relationship with your client lasts how
long? They are here and gone. And this one here,” he said, motioning with a sideways
nod of his head without looking at me, “how long do you think he’ll stay in Indonesia?
He’ll soon be gone and you will have ruined your relationship with the Kejaksaan.
You need to remember who your friends are.”
“I have a book,” he continued. “I write down the names of all those lawyers who
make trouble with many reports to the Supreme Court, the Judicial Commission, the
Attorney General and so on. I know who you are. I’ve run into you before haven’t
I? On that case, what was it? The French man?”
“Mutiara,” offered Maharidzal.
“Mutiara,” he agreed. “You reported a problem with the jaksa in Denpasar
to the Kejaksaan Agung. I know you, and I know how you work, and I don’t want to
receive any requests from lawyers who don’t know how to cooperate and work together
with the Kejaksaan as they should.”
“Pak, if I could explain…” started Maharidzal, but Arthana cut him off.
“No, you can’t explain and I don’t have time. I am leaving to the airport now for
a flight to Bali at 5:00. I don’t have any more time for you, and I’ve said all
we need to say here!”
That was the end of the interview. Arthana gathered up his briefcase while the adjunct
showed us out, and moments later Arthana swept past us with several secretaries
rushing after him spilling files, and they all climbed into the back of a waiting
car and were gone.
From Eleven Demons - Secrets of Deincarnation in Bali, Chapter 20.
From later meetings with Ketut Arthana, I concluded that perhaps he had not realized
that I spoke Indonesian when he delivered this lecture to my lawyers. But in any
case, I had no doubt that he had openly and honestly given us his view of the law,
and he never denied it in our later meetings.
When this first occurred I immediately assumed that Arthana was involved in collusion. More recently I have changed my mind.
The earlier quote “Acts of bribery and corruption, for example, are frequently
not seen by Indonesian authorities as corrupt practices,” may not
be quite broad enough.
Appearance of favoritism or collusion
was clear, but to assert “corruption” based on collusion would be unjustified.
Ketut Arthana clearly felt—or at least stated— that both the Kejaksaan
and lawyers in Indonesia had a higher duty than to help a foreign client.
The industrialized countries of the world—in Europe, the Americas,
Japan, South Korea and the like—are based on a liberal humanist philosophy
of law. Some Indonesians share these aspirations, but liberal humanism does not
drive all Indonesians, and it is not embedded as a basis of Indonesian law.
Ketut Arthana is Balinese, the alleged perpetrator of a fraud was Balinese, and
the complainant was a foreigner. It may be that in allowing favoritism, or nationalism,
or racism to motivate collusion in the legal process, many law professionals sincerely
believe they are doing their duty to the highest good of the state and of Indonesia.
In a business conflict, police, prosecutors, and judges might decide that although
a foreign citizen invested in and built a business in accord with the laws of Indonesia,
the nation would now be better off if the successful result were turned over to
an Indonesian citizen. They can use their control over the legal system to make
it happen.
This is not corruption, it is not illegal, and in fact, using the power of law to
confiscate desirable properties is one view of the entire purpose of Indonesian
law dating back to the very first days of the arrival of the V.O.C.—the Dutch
East India Company—in the East Indies.
So don’t make the mistake of assuming that members of Indonesia’s legal institutions have
the same views of the relationships between law, society, and human rights that you do.