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Is there any idea of the rule of law in the Indonesian Constitution? What is the notion of the rule of law in the context of Indonesia?

Like a company that has a deed of establishment as the basic foundation to operate the company, the state has its constitution to exercise power.

According to B.O. Nwabueze (1973), a constitution is not only a text of articles, but also a living basic system for the government and the people. To discuss the rule of law in Indonesia, therefore, must refer to the 1945 Constitution because it is the source of power for the government to govern the state and the people.

Since the fall of Suharto’s regime in May 1998 Indonesia has entered the Reform Era (Era Reformasi) and there have been four presidents: B.J. Habibie, Gus Dur, Megawati Sukarnoputri and current President Susilo Bambang Yudhoyono (since 2004). From 1999 to 2002 the Indonesian Constitution of 1945 was amended four times in successive years. Can such constitution support the idea of the rule of law? Has President Yudhoyono maximally supported the notion of the rule of law?

The answer is no. Many tragedies of law, black markets of law or legal scandals have occurred in the Yudhoyono era.

Various cases can be mentioned. For example, in recent years some members of parliaments, former Cabinet ministers, governors, polices, judges, prosecutors and public officials have been jailed for involvement in corruption scandals. There are still many cases pending.

Therefore, compared to other jurisdictions, Indonesia is still in a high rank of corruption index. For sure, the establishment of the Anti-Corruption Commission (Komisi Pemberantasan Korupsi) is quite vital for the purpose of numerous corruption eradications in the country, although this state auxiliary commission is facing various challenges from the cronies of the New Order regime and from those who are mentally corruptive and greedy. Therefore, the authority and power of the Anti- Corruption Commission has to be strengthened. This is absolutely in line with the spirit of the United Nations Anti-Corruption Convention that has been ratified by Indonesia.

Although corruption is prohibited by laws and the Constitution in Indonesia, in reality it still significantly happens. Thus, a constitution without constitutionalism and without sincere support of the people is nonsense. It is like a “paper tiger” in which the constitutional provisions have become inert and impotent. Yet one can see that the countries with constitutions do not automatically guarantee that it will be apt to constitutionalism.

In the Indonesian Constitution, the term of constitutionalism is a synonym of the negara hukum, rechstaat or the law-state. This concept can be defined as a legally accountable state or a state that rules by law and not by power. Government and its power must be limited to enshrine respect of human values and dignity as a central fundamental truth based on the rule of law, so that government exercises its power according to specified rule to obtain justice for all the people irrespective of their different backgrounds of political belief, economic status, religions, tribal affiliation and so on.

Accordingly, the arbitrariness of political power goes against constitutionalism, since constitutionalism recognizes a necessity for the government to put a limitation upon its power. The constitutionalism concept is the antithesis of the arbitrary regime and is opposed to corrupt administration in which the government is conducted not according to predetermined rules but according to despotic principles.

In a democratic state, there should be effective legal guarantees of basic rights enforced by an independent and impartial tribunal.

In short, constitutionalism has generally been concerned with the procedural ways of limiting government power and how to set up accountability. Hence, constitutions of constitutional governments must contain substantive as well as procedural limitations on governmental authority.

The government must provide a protection of human rights, free speech and freedom of association. Essentially everybody has the right to choose the justice based on equality principle, meaning that everybody should be equal before the law.

In conclusion, the implementation of the rule of law is the only panacea, cure or solution for all Indonesia’s troubles.

I am sure that the rule of law is also a panacea for the world’s troubles. Therefore, the rule of law should be a priority for any countries from Africa, Latin America, China, Japan, Russia, Asia and the Middle East (including Egypt, Libya, Jordan, Tunisia and so on. It is the only way to save Indonesia.

T.M. Luthfi Yazid, an Indonesian lawyer, is currently a professor at the Gakushuin University Faculty of Law. He is editor of “WAKAI: A New Approach for Dispute Resolution” (2008) by Yoshiro Kusano, professor at Gakushuin University and a former judge at Hiroshima High Court. This article is the personal opinion of the author: tmluthfiyazid@yahoo.com (www.lyzlaw.com)

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