Formalism

Formalism

 

Both Indonesians and foreigners recognize and frequently comment on the reliance of Indonesian law and bureaucracy on Formalism.

Formalism by dictionary definition is "A reliance or fascination with outward appearances or procedures rather than substance."

 

Formalism as a basis of law

In the absence of clear national consensus about the purpose of Indonesian law, formalism often becomes its own purpose.

One definition of law is “a monopoly on force or the threat of violence by the state to settle disputes and regulate behavior.”

“Justice” as a purpose of law is secondary. The Nazis had law, the Soviets had law, and of course the V.O.C. had law, but their objectives were not to provide justice.

Although many Indonesians do now aspire to justice under law, the laws and legal institutions of Indonesia were never set up to deliver it.

No one can actually appeal to “in the interest of justice” to supply meaning to written regulations because justice was never their intent to begin with. And so the only safe recourse continues to be strict compliance with the formal provisions of the law as detailed in the regulations.

 

Formalism and bureaucracy

As a result, laws and regulations are often defined by the forms which should be filled out and filed, as we saw earlier in the chapter about "inter-faith marriage," but without adequately specifying the conditions which would make the forms valid, or the philosphy behind the laws which would allow development of progressive interpretations.

Bureaucracies grossly run through pay-offs still insist upon all proper paperwork being filed, even if the details listed in the forms are clearly untrue.

Police reports are always complete, all appropriate documents and procedures fill each investigative file, even if the actual investigation is a sham.

Court decisions are always properly issued, the proper phrases inserted in their appropriate points, even if the evidence and witness statements have been entirely falsified and the decisions issued clearly contrary to law.

 

Colonialism and dictatorship...

As with much else in the Indonesian legal system, it is not difficult to trace these tendencies back to colonialism and dictatorship.

The Dutch worked through local elites, giving them the semblance of authority without real power. (See Geoffrey Robinson's Dark Side of Paradise for an interesting description of how the Dutch revived or reinvented royal houses in Bali as instruments of political control.)

Under Suharto the semblance of democracy and the fiction of local government and process of law was always adhered to, although it was clear to both the officials and the public that the only authority of any import was in Jakarta.

Generations of bureaucrats were trained to pose with authority, fill out forms, give and receive awards, attend meetings, but never, upon pain of dismissal or worse, actually do anything. Falsifying documents, sidetracking investigations, doing favors for payoffs, and delivering aberrant court decisions was part of their job.

Quoting again 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.


Dealing with legal institutions in which authorities have been trained and rewarded for adhering to formalist procedures while accepting bribes for subverting the substance of their jobs can be painful.