Law Enforcement Moral Problems
Law and power are part of the community (social order). Law and power relationships are of course dialectical, reciprocal and symbiotic, so there should be no power that dominates the law.
Law enforcement in the second era of the Joko “Jokowi” Widodo administration needs public attention.
From the ratification of the Corruption Eradication Commission (KPK) Law in 2019, to the ratification of Law No. 2/2020 on state financial policy and financial system stability for mitigating the Covid-19 pandemic, ratification of the Job Creation Law on 5 October 2020, and changes to the Statute of the University of Indonesia (UI) through Government Regulation (PP) No. 75/2021 on the UI Statute to replace PP No. 68/2013, this was a period full of controversy over the creation of laws that have the potential to cause moral problems in law enforcement.
The KPK Law is considered to weaken the KPK, the Job Creation Law is considered a legal product that favors business actors, while Law No. 2/2020 is made for emergencies outside of legal control. Meanwhile, changes to the UI Statute legalize the "ban" that was previously made so that it is considered an improper legal formation.
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Of course, the formation of the above laws was preceded by controversial issues related to the behavior of the authorities which could potentially lead to abuse of circumstances, abuse of rights and authority that lead to the accumulation of authoritarian, arbitrary and unfair, power that is contrary to the principles of the rule of law.
Indonesian state of law
Indonesia is a country based on law (rechtstaat), not based on power (machstaat), let alone characterized by a night watchman state (nachtwachterstaat). Since the beginning of independence, the founders of this nation have wanted the Indonesian state to be managed based on law.
The enforcement of the principles of a just state is a necessity in a state of law.
When choosing the form of a state of law, automatically the entire administration of this state must be as far as possible within the corridor of law, all of which must be carried out regularly (in order) and any violation of it must be subject to commensurate sanctions. The enforcement of the principles of a just state is a necessity in a state of law.
In Friedmann\'s framework, for example, law must be interpreted as a content of law, legal management (structure of law), and a culture of law, so that the enforcement of the principles of the rule of law is not only carried out through legislation, but also how to empower law enforcement officials and legal facilities and how to create a community legal culture that is conducive to law enforcement.
The Indonesian state of law adheres to the rule of law principle described by Dicey as the administration of state government based on the supremacy of law, namely the dominance of the rule of law to limit the authority of the authorities; the existence of equality before the law, namely equality before the law or equal submission of all groups, both officials and ordinary citizens; and the existence of a due process of law or the guarantee of human rights by the constitution.
Deputy Chairperson of the Corruption Eradication Commission (KPK) Alexander Marwata (center) in a press conference determining the Chairperson of the Muara Enim DPRD in the KPK\'s Red and White Building, Jakarta, Monday (27/4/2020).
The implementation of the rule of law concept is that the administration of the state is regulated through a legislation that fully upholds the supremacy of the just law so that laws and regulations are not only used as a tool by the authorities, but can also represent justice in society.
The concept of rule by law that is based on legal certainty of course gives high legality in carrying out legal rules, where legality is a core value, human rights, in the sense of nullum crimen, nulla poena sine lege (no crime, no punishment without law) which actually means not only providing guarantees of human freedom, but also protects individuals from acts of arbitrariness or abuse of power and unfair acts by the rulers to individuals and community members.
In the application of the principles of the state of law, the strategy of the formation of the laws in Jokowi’s second term indicates the existence of legal moral problems that has not changed, and is even trapped in more complicated intensity. This confirms that the legacy of the legal moral problems and law enforcement is undeniable, even though we know the saying "quid leges sine moribus?" (What is the meaning of laws or regulations without morality?).
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The issue of the formation of the KPK Law, Job Creation Law, the Emergency Law on the Covid-19 Pandemic and the change of the UI Statute, for example, clearly describes the fundamental problem from our legal world: the existence of the manipulation of legal functions by the holder of the power that blinds the public. Finally the law in Indonesia lives in a society that is not oriented to the law so that it is opposed to the adage "ubi societas ibi jus" (where there is a community, there is a law).
That means, the community does not care about the law because the law is not useful for them. The existence of the new KPK Law still does not reduce corruption. The Job Creation Law was made to encourage economic and investment progress, but it turns out that it could potentially become the most dangerous rule for workers, which in Latin is called ”jus naturale est quod natura omnia animalia docuit”.
A politician during the plenary session of the ratification of the Omnibus Law on 5 October 2020 mentioned that the Job Creation Law was an omnibus law, which is believed to be able to create the practice of evil agreements between business actors, slavery in the economical sense, social violence, and so on.
Domination of power over the law
Law and power are part of the community (social order). Law and power relationships are of course dialectical, reciprocal and symbiotic, so there should be no power that dominates the law. The function of power to the law is clear as a means of forming the law (law making), enforcing law (law enforcement) and carrying out the law (executor). Meanwhile, the law is a medium to legalize power.
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Anticorruption activists and employees of the Corruption Eradication Commission (KPK) hold a #SaveKPK rally at the KPK building, Jakarta, Sunday (8/9/2019). The activists, along with KPK staff, covered up KPK logos and other insignia to symbolize a deliberate effort to weaken the country’s anticorruption body through a plan to revise the KPK Law and problematic candidates who had been shortlisted as KPK commissioners.
Legalization of law against power means determining the validity of the power from a juridical point of view. The problem in Indonesia is that this legal power is often misused to be arbitrary, immoral and unfair so that it has problems with legitimacy. Because of concerns there will be problems with legitimacy, legal functions of power are also to regulate and limit power. This arrangement is important so that there is no ambiguous and paradoxical power in the country.
Meanwhile, restrictions are needed to prevent accumulation of authority in one official or institution that is feared to be trapped in authoritarian behavior in the implementation of the state and abuse of power. The final legal function is to request power responsibility. It is important to keep power to be used according to the mechanism and purpose of the given power. Therefore, it is obvious that the dialectical and symbiotic relationship between law and power gives birth to equal and regular functional relationships in the frame of the law supremacy.
Legal understanding in the context of rules means understanding the law as things which should be done (das sollen) in the lives of the community.
However, the relationship of power and law frequently experiences ups and downs. The revision of the KPK Law, the formation of the Job Creation Law, the formation of the Covid-19 Emergency Law, and others apparently indicate the opposite about dominance of power over the law. For this reason, we need to learn again to understand the law more correctly and fairly. Legal understanding in the context of rules means understanding the law as things which should be done (das sollen) in the lives of the community.
Likewise our legal studies have been to understand the law as social reality (das sein) that occurs in community. The legal essence is basically a matter of values that illustrate morality, truth and justice. Therefore, in the dialectical and symbiotic relationship with power, the law may not submit to power, it should not be the tool of a ruler or capitalist to protect the interests of the ruler or group of elites.
We want the law that determines the existence of power and law to be made to protect the interests of the entire community, not the interests of the ruler or elites.
Amir Syamsudin
The concept of the state of law provides certainty, there is social control of the behavior of the ruler. However, the concept of this state of law sometimes legalizes state actions and if it is done without being supported by the moral attitude and principle of justice, there will be denial of the principles of the state of law because the law is utilized by the ruler as a tool to legalize all forms of illegal actions.
Legal praxis, which is far from the sense of public justice if reflected, is actually experiencing social and moral problems because it is less beneficial for the social development of the community in a better direction, which by Von Benda-Beckman is called a legal praxis that is not socially meaningful.
Amir Syamsudin, Former law and human rights minister
(This article was translated by Hyginus Hardoyo)
