Championing the “Losers”

SALOMO TOBING

Bivitri Susanti

“Losers” are real. They are often included in the lyrics of songs, like Iwan Fals’ song in 2012, as well as in book titles and stories. The reality is that there are always losers in law.

In society, there are often groups of people who lose to the law in the name of the public interest. This includes the poor, the disabled, religious minorities and any other group that is not “common” according to the law, such as people with different sexual orientations and gender identities, who are often not even considered when laws are made.

In fact, the law can have a different impact depending on the social condition. Lawmakers and law enforcement must not simplify the meaning of equality before the law by assuming that everyone is physically, mentally and socially equal. Equality before the law must also be interpreted as a legal duty to build equality.

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There are groups of people who will always lose to the law, because the law operates in a formal setting that requires legal status and documentation. Among them are indigenous people who build their livelihoods from the land they live on, who do not even exist according to the law and are expelled when that land has a permit owned by a large company. The urban poor are treated the same, worse than corruptors, because they occupy land in a city without a permit.

“If there is no permit, then they must be evicted,” is the standard response from law enforcement. They forget that there are many circumstances that can make it impossible for these people to obtain permits. Laws that champion “losers” can provide a humane solution to questions of status and documentation, as opposed to expulsion and oppression through violent means.

We are often mistaken in believing that the law is only a matter of punishments and permits. While it is true that the law covers instructions, bans, permits and approvals, the law is not the same as a regulation and is certainly not a mere means of punishment. In fact, initially, law was a matter of human rights. The idea of law emerged during a condition of acute feudalism, and aimed at equalizing the rights of ordinary people with those who had privileges due to their titles of nobility, position or wealth.

Failure to equalize

On an assumption that the law is only a matter of punishment and permission, the law will always fail at achieving equal rights. This is because state law is created by people with power, but we know that power is not always succeeded by virtue. In the current political condition, those in power are often more concerned with helping themselves and their group than with considering the impact the law will have on all of society and the environment.

Of course, these impacts are not felt by lawmakers and those who enforce the law who travel to their offices in vehicles bearing special license plates to exercise road privileges. The 1 percent of the wealthiest Indonesians who possess 44.6 percent of the country’s wealth and the wealthiest 10 percent that control 74.1 percent of the country’s wealth (Credit Suisse Global Wealth Databook, 2019) are not affected either.

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So when a riot broke out at the nickel facility in Morowali, for example, people were surprised to observe that foreign workers had privileges ranging from immigration matters to their positions and lifestyles, which seemed to put them in a completely separate bubble from the local community. This had all been made possible because of the Job Creation Law (now a regulation in lieu of law), which rolled out the red carpet for foreign investors and triggered conflicts of interest between authorities and businesspeople.

Likewise, many people were shocked to learn that several villages on the northern coast of Java had been submerged as a result of dire environmental conditions. This occurred because development no longer required an assessment of environmental impacts, which was also reinforced by the Job Creation Law.

Of course, aspiring to laws that champion the losers will merely remain an aspiration if we do not start breaking down the system of making and enforcing the law. This reflection is an initial thought, which must be followed by concrete actions that encourage legal and political change in this country.

BIVITRI SUSANTI, Professor at Indonesia Jentera School of Law

This article was translated by Kesya Adhalia.