Volume 3, No. 5 May 2024 (574-585)
p-ISSN 2980-4868 | e-ISSN
2980-4841
https://ajesh.ph/index.php/gp
Legal Framework and Rule of Laws in The Context of Indonesia’s
National Resilience
Stanislaus Vicky Primanda1*, Muhammad Syaroni
Rofii2
1,2School of Strategic and Global Studies,
Universitas Indonesia, DKI Jakarta, Indonesia
Email: stanislaus.vicky@gmail.com1*, muhammadsyaroni@ui.ac.id2
ABSTRACT
This study aims to explain the impact and pattern of the relationship
between the framework and the rule of law on the quality of data-data, in
particular demography, politics, society, culture, defense, and security, so as to provide an appropriate perspective on the lens of
Indonesia's national resilience. This study uses a structured literature review
that explains the relationship and impact of the framework and the rule of law
on the Qatar-data, especially on the political, economic, demographic, social,
security, and defense forces. The results of this study show that the framework
and rule of law have a net relationship and have a positive correlation with
political, economic, demographic, social, security, and defense forces, where
the quality of both either positively or negatively affects the level of
resilience or vulnerability to Indonesia's resilience as a nation-state.
Keywords: National
Resilience, Legal Framework, Rule of Law, Vulnerability, Resilience.
INTRODUCTION
One might guess the poor quality of a
country's legal environment may contribute to its weak resiliency; however,
which aspect that constitutes a legal environment, the concept of national
resilience, and how such a poor legal environment affects a country's
resiliency in this study, Indonesia national resiliency is an unexplored study
Resiliency is generally defined as the
ability to recover from a previous condition after experiencing shock(s)
The turmoil caused by the Asian Financial
Crisis (AFC) of 1998 that engulfed Asia, notwithstanding Indonesia, is a
perfect example to portray how the data in Indonesia’s national resilience
model are connected to one another
Now that the correlation of each gate has
been explained, it is pivotal to the discussion of this study to disclose that
each gate in the resiliency model has derivatives. The quality or strength of
the derivatives of each gatra, therefore,
understandably also affects the quality or strength of the gatra
it belongs to and, in turn, also affects other gatra.
For the purpose of this study, we will focus on ‘law’
as a derivative of political data
Law is the subject that fundamentally governs
and regulates how any state operates, such as in the case of Indonesia, which
is set out by its constitution as a state that is based on law (rechtstaat) as opposed to power (machstaat)
As explained above, the legal framework and
rule of laws, i.e., the quality thereof, is fitting to be hypothesized to have
a significant impact on the qualities of the gatra
that makes out the model and strength of Indonesia's national resilience
The aim of this study is to determine the
relationship pattern and impact of legal framework and rule of laws with
demography, politic, economy, social, defense, and security gatra
and therefore provide a hopefully renewed and distinct view on their impact on
the overall Indonesian national resilience. Such a view shall also hopefully
invigorate the view of law as a pivotal element in Indonesia's nation-building
and national resilience.
RESEARCH METHODS
The revised research methodology adopts
systematic literature analysis. The aim of the literature analysis is to
uncover direct and/or indirect relationships between the legal framework, the
rule of law, and various aspects such as demography, politics, economy, social
dynamics, defense, and security. These relationships
are then elaborated upon to provide an explanation of their impact on each
entry point. In this case, there is no use of sampling or a specific number of
respondents as this methodology involves reviewing existing literature.
The data analysis technique employed in
this study is thematic analysis. Thematic analysis involves systematically
identifying, analyzing, and reporting patterns or
themes within qualitative data. The qualitative data, in this context, consist
of information gathered from reviewed literature regarding the relationships
between the legal framework, the rule of law, and various aspects such as
demography, politics, economy, social dynamics, defense,
and security.
RESULTS
AND DISCUSSION
Law and Democracy
Democracy is mentioned in this discussion as
a governmental system on which Indonesia is based; therefore, its strength or
quality affects Indonesia's national resilience.
There are different interpretations by each individual, and by scholars of law as to the
understanding and definition of, however, the common consensus is that law is a
set of rules made by the authorized party with the purpose of maintaining order
within society by setting out the command, restriction, prohibition, and
discharging coercive power with impedance to the penalty to those who violate.
As mentioned before, it is certain that individuals who occupy the same space
have opposing interests which may create dispute or even, without something to
intercede i.e.: law, unrest or chaos shall be bound to happen to disrupt the
activities of everyone’s daily life. Therefore, it is impossible to comprehend
how a society could remain intact and thrive without law governing the behavior
of the member of society and the state itself from discharging its powers as
arbitrary, undermining democracy.
The 1945 Consitution
(UUD 1945) serves as the ground norm for the governmental system, how the
government operates and discharges its rights and duties, and as a basis or
reference for the law of the lower hierarchy. Article 1 in the opening section
of the 1945 constitution sets Indonesia as a form of a republic based on the
sovereignty of its people within the frame of Pancasila as a state. Such
sovereignty, in practice, is carried out by the People Consultative Assembly / Majelis Permusyawaratan Rakyat (MPR),
whose members comprised of a member of the House of / Dewan Permusyawaratan
Rakyat (DPR) and Regional Representative Council / Dewan Perwakilan
Daerah (DPD). In the context of the formulation of the law, each member of the
DPR and DPD is eligible to propose a draft of the law which then requires the
approval of the DPR as Indonesia's legislative body and validation from the
President, who acts as an executive in the concept of separation of power. The
mechanism for the formulation of law / legal framework showcases how Indonesia
as a state discharges its rights and obligations based on law, in this case,
its constitution.
Since reformation took place following the
stepping down of Soeharto in 1998, Indonesia's
democracy has shown promising progress; however, as Indonesia progressed, its
democracy began to exhibit stagnation and decline. Such a setback of democracy
does not happen suddenly but happens gradually, starting from the stagnation
stage, which began in 2009 to 2014. During such a period of
time, Indonesian democracy is considered to be ‘stable but of low
quality’. Such quality of democracy is reflected by the government's
malleability in curbing radical groups of undemocratic ideology and the
enactment of Information and Electronic Transaction Law, which is prone to be
punitive tools rather than regulating legal framework. The ‘accommodating’
approach of the regime towards a group of elites with certain religious
ideologies spoils them by putting them in a coveted and lucrative position
within the government, which also comes with privilege. Polarization comes as a result of how the regime during this time treated certain
groups affiliated with certain ideologies lopsided by providing them
privileges.
The emplacement of partisan or confidant into
strategic positions of the government within the scope of the executive branch
causes the consolidation or aggrandizement of executive power, in this case,
held by the President. Such emplacement within the security and law enforcement
institutions that wield coercive power, such as police and attorney general
office (AGO), can be exploited to be a political instrument used to
‘neutralize’ political opposition by selectively using law and its enforcement.
In other words, targeted prosecution. This is done by taking leverage on the
information of criminal activity such as corruption, which is a rampant
practice among state official, including the regime’s political opposition, to
be then utilized as a bargaining chip to alter their political orientation to
be in favor of the regime. Turning political opposition into allies by
‘coercive’ means. In addition, a certain institution that has a role in
oversight and control or ‘checks and balances’, which, however, pose obstacles
to the regime’s political goal, are curtailed, reducing its efficacy in
carrying out its activity and discharging its rights and duties. With law
enforcement institutions held captive by political power or influence due to
the installation of partisans and confidants, civil society was ineffective in
voicing their opinion or critique towards how the government carried out its
practices as opposed to a democratic guarantee. This condition has led
Indonesia’s democracy to be named a narrow democracy.
Then, is there harm, and if there is, what
harm may befall a state whose government shows undemocratic attributes as
reflected by its institutions? Inclusive (democratic) political and economic
institutions are characterized by the unrestricted participation of their
citizens, and therefore availability of the wide talent and skill pool served
from them, enabling greater contributions in nation-building, equality before
the law, acknowledgment, and protection of intellectual property rights (IPR),
and fair access to public services. Inclusive state institutions are the
prerequisite for a nation to be prosperous. Whereas inclusive institution is
characterized in opposite to the inclusive institution. Inclusive institutions
are named as extractive institutions. This type of institution has no intention
to make the people prosperous, instead, these institutions are used to exploit
resources, be it natural resources or resources from the people by exploiting
for the benefit of an elite group of people of a country, and naturally, this
elite cluster of people demands status quo to maintain their power and control
over these state institutions. It can be understood that extractive
institutions take place in a country and reflect the characteristics of an
undemocratic government that harbors no respect towards sets of rules (legal
framework) and rules of laws.
The tendency to maintain the status quo
exists both in inclusive and extractive institutions, but each yields a
different result. Inclusive institutions enable the cycle of economic growth
and stability, whereas extractive institutions propel economic decline and distability, which may ultimately cause the creation of the
failed state. Although the tendency to maintain the status quo exists, history
has shown that institutional transformation took place. A pivotal event,
whether something positive or in the form of a negative shock, may constitute
an intersection to institutional reform. For example, the damaging effect of
absolute monarchy on the economy led to the establishment of constitutional
monarchy, which placed the law in a position of power over the king and nobles.
As in the case of Indonesia, the 1998 AFC and the ensuing unfortunate events
resulted in the declaration of a reformation agenda, which acts as the turning
point or intersection that pushed the transformation of institutions in Indonesia
to become inclusive.
There is a relation between openness and
stability as explained by a ‘J curve’ by Ian Bremmer. The concept of the J
curve by Bremmer can be explained by imagining an imaginary ‘J’ that is spread
across the horizontal and vertical axis, with the horizontal axis representing
openness and the vertical axis representing stability. It is explained that a
country with a high level of openness is a perfectly democratic country,
reflected by the transparency and inclusivity of its institutions, the presence
of a check and balance mechanism, guaranteed freedom of expression, and the
rule of laws. A country with a high degree of openness is also characterized by
embracing globalization with an unrestricted flow of information and
international trade. The position of a country with a high level of openness
can be found on the right side of the horizontal axis along the J curve. The
United States and the United Kingdom are examples of countries with high levels
of openness and stability. On the other hand, North Korea is an example of a
country positioned at the left side of the J curve, which is a ‘closed’ yet
stable country. The most unfortunate are the countries located at the bottom of
the J curve which means they are neither open nor stable.
The position of a country along the J curve
may change and, therefore, move along the track of the J curve. For example, a
democratic country positioned on the right side of J experiencing a democratic
setback may cause the country to shift down-left ward, which means it shall not
only experience a reduction in openness but will also become more unstable.
Should the condition be worse, the worst thing that could happen is such a
country would rest at the bottom of the J curve, which is neither democratic nor
stable. The normal decision for the leader of such a country to improve such
conditions is to either make it a closed country (undemocratic but stable) or
restore the quality of democracy to regain its place on the right
side track of the J curve.
The choice to increase stability at the cost
of being a closed country is a rational and possible choice. However, it bears
consequences such as the use of authoritarian and/or coercive means, which
abolish its freedom. Closed countries are also prone to economic problems due
to self-rawal or exclusion from international trade
or international sanctions, which prevent such countries from utilizing their
comparative advantage and, therefore, experience obstacles in their efforts to
grow. The passing of the authoritarian figure leading a closed country may also
trigger an internal power struggle, which may create disability from within.\
The choice to shift towards the right side of
the J curve by a closed authoritarian regime indeed will place such a country
in a position of disability as what Indonesia experienced during the dawn of
reformation following the 1998 AFC. However, a consistent choice to be more
democratic will eventually, in the long run, make a country also stable.
As explained above, it, therefore, can be
concluded that there is indeed a positive correlation between the legal
framework and the rule of laws with a country’s democracy quality. Upholding
the importance of legal framework and the rule of law is the prerequisite to
maintaining democracy. Without a legal framework to govern and a rule of laws
ensuring enforcement, a country might descend into an authoritarian regime with
its institutions being exclusive, abolishing democracy, which ultimately may
lead to national instability.
Law and Economy
In accordance with the role of law to
regulate with the aim to create and maintain order, the presence of a legal
framework and rule of laws within any society also serves to provide assurance,
fair treatment and policy required for economic activity to run productively
and stable.
Justice, in the sense of equal opportunity
for all members of society to gain access to both criminal and civil justice
systems, ensure all member of society possesses equal opportunity and benefit with regard to economic activities, which in turn creates
economic equality, which is the prerequisite for economic development. Equality
in the economy also brings a positive impact in the form of strong social
cohesion within society.
In a study of the history of the United
States legal framework, a pair of findings were found regarding the
relationship between the legal framework and the economy. The first finding
found that legal framework renders an impact on macroeconomic policy, the
second finding is the purpose of legal framework widens from creating,
maintaining stability and fostering economic growth as measured in Gross
Domestic Product (GDP) to later include the purpose of improving Human
Development Index (HDI) as coined by the United Nation Development Program
(UNDP) which covers aspects of life expectancy, education, and Gross National
Income / GNI (GDP plus income of nationals working overseas minus the income
earned by foreign nationals working domestically) and improvement on Inequality
Adjusted Human Development Index (level of inequality on HDI. This study shows
that legal framework and policy, as shown in this study, understand the
importance of this and therefore suggest that legal framework and policy should
be formulated with the aim of improving the quality of human life.
Referring to data from the Corruption
Perception Index (CPI) by Transparency International, in 2023, Indonesia ranked
115th out of 180 countries. Also based on the same report, the corruption
occurring in countries in the Asia Pacific region, including Indonesia, has a
negative impact on the economic growth (GDP) of those countries. Such
prevalence of corruption is due to the characteristics of the institutions of
each country in such a way and the complexity of the legal framework, making it
difficult to eradicate corruption.
This refutes the myth about the benefits of
corruption, which posits that corruption can help boost the economy. Instead,
it shows that corruption is inversely related to economic growth, particularly
in developing countries in the Asia Pacific region, including Indonesia.
Governments that are characterized by patrimonialism and clientelism create
opportunities or even a fertile ecosystem for corrupt practices. Patrimonialism
is when power is concentrated in the hands of a single ruling figure and there
is a mix of state and personal interests. Through such power, the ruler can
grant economic and/or political privileges and rights to trusted individuals in
exchange for loyalty and support for their regime. Privileges granted to
confidants may include strategic and coveted positions in state institutions,
such as security, law enforcement, and military agencies, disregarding
transparency, accountability, and meritocracy, impacting inequality and uneven
economic growth and development. The phenomena and impacts of patrimonialism
and clientelism reflect the failure and simultaneously be the cause that
further damages the rule of law. In another word, the weak the rule of laws and
practices of corruption occurs in a cyclical form.
Indonesia is endowed with a vast territorial
area. As an archipelago, the total land and maritime sovereignty of Indonesia
covers 5.180 million km². Within the vast territory of Indonesia, there is an
abundance of natural resources; however, the endowment of these natural
resources is not enjoyed equally by its people.
Inequality as measured by the Gini
coefficient, ranges from 0 to 1, with a value of 0 showing perfect equality and
a value of 1 showing perfect inequality. A country is categorized as having
'high inequality' if it has a value between 0.5 and 0.7 and as 'moderately
unequal' if it has a value between 0.2 and 0.35. According to the Central
Statistics Agency (BPS), as of March 2023, Indonesia has a Gini coefficient of
0.388. The wealth of natural resources in Indonesia does not seem to correlate
with the equitable distribution of income among its people, reminding us of the
concept of the resource curse. The resource curse is a condition where abundant
natural resources do not contribute to economic development but create
inequality and problems in government institutions. This inequality and poor
institutional quality are caused by issues in the legal framework that fail to
regulate practices of clientelism, corruption, and other practices that exploit
weaknesses in the political and economic environment and the failure rule of
laws carried out by law enforcement to regulate and ensure the equality in the
opportunity to enjoy the benefit from a country's natural resources/wealth.
Compared to developed countries with already
optimized legal systems, the impact of improving governance, i.e., legal
system, in developing countries, which covers the aspects of the rule of laws,
compliance with regulations, law enforcement, and legal institutions, yields
more significant positive effects on economic development levels.
Economic growth alone does not reflect
improvements in the aspect of human quality of life. A country's economy might
grow based on GDP calculations due to the concentration of economic activities
by only a group of individuals within such a country. On the other hand,
economic development reflects both growth and the equal economic distribution.
Without a legal framework and the rule of laws that ensure compliance with
regulations, which play a role in the implementation of governance that adheres
to general principles of good governance and is, therefore, able to ensure the
equal distribution of economic opportunities and the benefits thereof, economic
growth prone to be riddled with disruptions and, not to mention economic
development which come to be impossible to achieve. It can be concluded that
the legal framework and rule of law have a positive correlation with the
economy, both in terms of growth and development, and therefore impact
Indonesia's national resilience.
Law and Social aspect
The nature of the laws governing economic
activities has been previously explained to have a role in creating a stable
economic ecosystem and equal economic opportunities to participate in the
economy; in other words, law is contributing to the reduction of the level of
inequality in society. However, a legal framework (regulations) formulated and
enacted with the intention or to be in favor of the interests of a specific
group of individuals will increase inequality and marginalization, resulting in
the potential for conflict.
Economic inequality has 3 (three) types:
vertical, horizontal, and regional. Vertical inequality can be seen from the
creation of stratification in society that classifies certain groups as
superior, thus placing them in a higher economic stratum compared to others.
The conflict resulting from this vertical inequality is between the groups that
feel marginalized due to government policies and decisions that cause or are
responsible for deprivation, which causes inequality. The conflict in this
vertical form of inequality is between the deprived group and the government.
Horizontal inequality is the disparity between specific ethnic groups in
society. The potential conflict arising from this inequality in society takes
the form of inter-ethnic conflict or rebellion by ethnic groups that feel
deprived. The inequality occurring between regions in a country can cause more
prosperous areas to be driven to seek independence because they feel burdened
by supporting less prosperous areas, thereby inevitably triggering conflict
with the central government.
Throughout its history, Indonesia has
experienced a fair share of conflicts, both horizontal and vertical, with
various forms of conflict including rebellions, communal conflicts, and
terrorism. The conflict that entails the monetary crisis in 1998 in Indonesia
is regretfully one example of how the weakening of the laws contributed to the
cause of conflict. Indonesia's journey towards democracy began with
uncontrolled and deep-rooted corruption, collusion, and nepotism during the New
Order regime, which made the economy at that time fragile. When this already
fragile economy was shaken by the Asian financial crisis, it collapsed.
Dissatisfaction and resentment towards the mismanagement of the government
erupted into conflicts and spread into ethnic violence.
Problematic legal frameworks and rule of
laws, limited literacy, and dissemination of legal provisions, as well as their
enforcement, contribute to the occurrence of conflicts. Conversely, the
presence of a legal framework of quality, a strong rule of law, widespread
literacy, and consistent law enforcement can be pathways to resolving
conflicts. As occurred in Poso (1998), the gaps
between religious community groups were exacerbated by political competition
for positions within the government structure that were self-beneficial by
exploiting central government policies (rent seeking) such as development
funding, poverty alleviation program funds, and subsidies, which became
triggering factors for conflict. Conflict then erupted in Poso,
and all that was needed was a trivial issue to ignite those factors. The
resulting conflict was a communal one that lasted for three years until it was
finally resolved through an agreement between the parties, encapsulated in the Malino Accord, which included, among other points, an
agreement to submit the disputes for resolution under the applicable law and
its enforcement.
Another case of conflict that occurred in
East Nusa Tenggara was a conflict that stemmed from a land dispute between the
local community and the government. In this case, the local community felt
disadvantaged and marginalized by the eviction of their land, as the eviction
was considered arbitrary and without regard to the community's customary law.
The eviction resulted in the loss across aspects of society: loss of the local
community's livelihoods, access to educational facilities (schools), and psychological
trauma. This occurred because the existing legal framework, the agrarian reform
law, did not include provisions that accommodated the values and customary laws
of the Indonesian tribes. The local community also lacked knowledge about the
law or access to legal aid. From the governmental side, the relevant government
institutions lacked expertise in managing agrarian conflicts, which
necessitates regard to the aspect of customary law. All these are the causes of
the occurrence of such conflict.
Law and Demography
A country may experience economic growth
through the increase of its national income but without experiencing economic
development, which is reflected by the equitable distribution of wealth and
improvements in the quality of human life in its society.
The Human Development Index (HDI) by the UNDP
portrays the concept of economic development with more comprehensive indicators
consisting of Gross National Income (GNI), which provides a more precise
description of a country's income by adding GDP and the income from nationals
working abroad minus the income from foreign nationals working within the
country, life expectancy (the average lifespan of an individual from birth),
and education (the actual duration of educational attained and the expected
educational achievement). HDI factors also have interrelated influences. For
example, economic capability will determine whether an individual can enjoy
education, and the knowledge gained from education enables the individual to
make informed decisions about their health while equipping them with skills to
compete and innovate in economic activity. In this context, the rule of law
plays a positive role by creating an environment that fosters education and the
economy to develop through the creation of equality and respect for property
rights.
In countries with advanced education levels,
a positive correlation is found between the quality of the legal framework and
the level of education. The quality of the legal framework can be measured by
how well-structured and orderly the legal regulations are, whether they create
efficiency and positively impact socio-economic aspects, including economic
growth, improvement in HDI, and the number of scientific publications issued by
a country. Conversely, a legal framework cluttered with numerous complex regulations
can hinder output in these socio-economic areas. In addition to the quality of
the legal framework, an established rule of law is pivotal for an effective
legal system to serve as the basis for legal compliance, ensuring equality
exists in governance, which then also contributes positively to supplementing
the increase of outputs by a quality legal framework.
Law and Defense & Security
As mentioned at the beginning of this study,
Indonesia, as a country based on a constitution (rechtstaat),
requires legal frameworks as a basis for exercising its authority in all
aspects, including in the field of defense and security. This encompasses the
establishment of defense and security institutions, their respective
objectives, powers, limitations of authority, their relationship with other
state institutions, and their interactions with society.
The improper and unfit use of security and
defense institutions, or other institutions wielding coercive authority, has
been noted to have a detrimental impact on democracy as previously has been
discussed. Therefore, adherence to the existing legal framework as a means of
oversight and control (checks and balances) over these institutions is crucial
not only to preserve the quality of democracy but also to prevent these
institutions from contributing to a state’s failure. The following discussion
will outline a case in Indonesia where misuse has had adverse effects on the
society, the institutions themselves, and the state.
Law and Security
Buzan's work on securitization describes it
as an action by an actor with authority (securitizing actor), through the form
of a statement or declaration of something as a security issue, which
constitutes a threat to an object that needs to be protected from existential
threats, where such a declaration requires approval or acceptance by an
audience. What needs to be considered a security issue and what requires
securitization continues to evolve according to the development of age, as
witnessed in the event of the Coronavirus Disease 2019 (COVID-19) pandemic. The
attempt to curb the spread of COVID-19 led to regulations on social distancing,
including in educational activities. In this case, face-to-face teaching
activity is an example of the application of securitization. Technological
advances are evidently also a subject of securitization. The development of
technology that has produced artificial intelligence (AI), perceived by
countries as both a potential and a threat to national security, has made AI an
object of securitization, as China has done. China's concerns are driven by its
history of technological inferiority in the past, the survival of the Chinese
Communist Party, and the competition to dominate AI technology against
geopolitically opposing countries, which have prompted China to securitize AI.
For securitization to work, it requires
approval or acceptance from the audience. In the context of a democratic
country like Indonesia, this is done by the proper mechanism involving its
legislative body, which, by the constitution, is established as the
representative of the Indonesian people and related to its function in enacting
legal frameworks. The coercive nature of law makes the implementation of
securitization possible, ensuring the achievement of securitization objectives.
Indonesia has a diverse legal framework covering a wide range of aspects.
However, the number of legal frameworks is relatively less strategic than their
application, which necessitates a proactive and cautious approach and
application of these frameworks. Failure to implement proactive and cautious
steps can have detrimental effects on the objectives of securitization itself,
as exemplified by the following.
Terrorism is undoubtedly established as a
serious crime by countries and, therefore, requires securitization, allowing
for extraordinary efforts to mitigate and combat terrorism. Since the tragic
Bali Bombing incident, Indonesia's efforts in counterterrorism have made
progress, among other things, thanks to the enactment of legal frameworks to
combat terrorism, namely Law No. 15 of 2003 as revised by Law No. 5 of 2018 on
the Eradication of Criminal Acts of Terrorism. In addition to the aforementioned law that provides a basis for POLRI
(Indonesian National Police) and TNI (Indonesian National Armed Forces) to
conduct counter-terrorism operations, the constitution also plays a role in
providing balance in protecting human rights, in this case, ensuring that
counter-terrorism operations by security forces do not violate human rights.
What this means is that the balance between the aggressiveness of
counter-terrorism operations and the protection of human rights is important in
maintaining democracy and closing the gap or loophole that may be exploited by
terrorism defendants to conjure errors in the due process of law of
counter-terrorism operations and the ensuing legal proceeding.
Unfortunately, the study by Rucktäschel & Schuck (2019) did not address the
constitutional court's judicial review of Law No. 15 of 2003, which was
petitioned by the Bali Bombing defendants as an important example of the need
for proactive steps in law enactment, especially regarding security and public
safety. The basis for filing this judicial review was the retroactive nature of
Law No. 15 of 2003, which contradicts the principle of legality in the
Indonesian criminal legal system. The Constitutional Court ruled that Law No.
15 of 2003 violated the non-retroactive principle of the Indonesian legal
system but also decided that their own ruling would not apply retroactively,
allowing the prosecution and examination of the defendants to continue and
yield a verdict. Had the judicial review fully invalidated Law No. 15 of 2003,
the state would not have been able to provide justice and restitution to the
victims of the Bali Bombing tragedy, effectively nullifying securitization
efforts. Therefore, a proactive and careful approach to creating legal
frameworks is important in ensuring security.
Proactive steps also mean that the state
needs to continuously establish legal frameworks over other aspects and their
derivatives, which are fundamentally new to society. Therefore, anticipating by
enacting legal provisions is an effort toward effective securitization. The
following discussion underscores the importance of law, particularly legal
frameworks, in preventing losses and ensuring the success of securitization
objectives.
The sophistication of AI also brings
developments in the transportation sector by integrating AI into electric cars,
resulting in the concept of autonomous electric cars. As the name implies, the
operation of these cars involves a fully integrated electronic system in the
vehicle. This new concept requires a specific legal framework, as has been
enacted by the European Union (Automated and Electric Vehicles Act). However, a
new study has emerged criticizing the inadequacy of the legal framework, which
is seen as lacking in regulating how to handle liabilities from damages
resulting from cyber attacks on autonomous electric
cars. The study is an example of a proactive approach through the
identification of weaknesses in the legal framework on autonomous electric cars
that can be adopted by the government by formulating revision thereof before a
hypothetical incident mentioned in the study comes into reality.
Facial Recognition Technology (FRT) can be
used for law enforcement purposes within the jurisdiction of the European Union
due to its ability to identify individuals targeted in security operations.
However, its potential to violate human rights necessitates an updated legal
framework. Research indicates the need for a legal framework update to balance
the benefits provided in the context of law enforcement and the protection of
personal data. This means that without revision to the legal framework, the use
of FRT is certain to also become a threat to the quality of democracy of
countries that use FRT.
Law and Defense
According to its two prominent figures, Sun
Tzu and Kautilya Chanakya, the scope of intelligence
activities is defined more than its role in the art of warfare; instead, it
covers domestic, foreign, and economic affairs. The commonality between these
two views is that intelligence is an activity involving the collection of
valuable and/or secret information through clandestine means. From this
definition, it is clear that intelligence is an
essential part of maintaining a country's security and defense. Intelligence
activities include but are not limited to information gathering, evaluation,
analysis, report production, early detection, anticipation, or prevention of
threats before they occur, but also include activities categorized as counter-intelligence. Counter-intelligence is defined as
actions to protect intelligence activities and products through defensive and
offensive means such as sabotage, deception, disruption, neutralizing actions,
and exploitation. To conduct intelligence activities, individuals with
specialized skills known as 'agents' or intelligence officers who work under
the command of an intelligence institution or an institution with intelligence
functions are required.
It is understandable to have the impression
that intelligence activities and their institutions might be perceived as
something that operates outside the scope of legality due to their elusive and
obscure nature. However, a legal framework does exist which sets out the basis
for the establishment, duties, and authority. This is evidence that shows the
legal framework is deemed necessary as a check and balance for the intelligence
service in performing its duties and discharging authority.
An undemocratic governance style or the
absence of a legal framework can result in deviations in intelligence services
usage by individuals in positions of power. Intelligence services can be
misused to serve political interests and neglect the true mandate of
intelligence, which is to ensure the safety and welfare of the public. In the
case of Indonesia, the excessive use of intelligence apparatus during the New
Order regime aimed at maintaining and consolidating Suharto's power is an
example of how deviations in the use of intelligence services were detrimental
in Indonesian history. It should be noted that the National Intelligence Law
was only enacted in 2011 through Law No. 17 of 2011, 13 years after the
collapse of the New Order. The New Order's absolute and extensive use of
intelligence range on wide aspects of societal life, from combating separatism,
engineering politics, maintaining security and order in repressive ways,
extreme media control, and including actions that violated human rights for the
benefit of the New Order. Suharto and his intelligence institution's authority
was unaccountable and arbitrary, but ironically, this misuse led to the fall of
the New Order regime. Intelligence at that time was too focused on business as
usual and failed to pay attention to new and rapid developments both
domestically and internationally. Disagreements were met with hostility, as
experienced by Benny Moerdani, a prominent
intelligence figure and Suharto's confidant when he expressed concerns about
the burgeoning business interests of Suharto's children. What Benny Moerdani said led to his removal from a prestigious
position in the intelligence institution, followed by a purge of loyalists from
the institution. The restructuring after Benny's removal resulted in a shortage
of competent intelligence officers. The remaining officers chose to play it
safe by providing reports that Suharto wanted, not those that were needed. The
combination of external shocks in the form of the Asian Financial Crisis and a
wave of domestic desires for democratization from a coalition of civil society
and academics was not a focus of the intelligence, and Suharto became
negligent, which along with the ongoing dynamics led to the end of Suharto's
32-year regime along with unfortunate turn of events experienced by the people.
What happened during the New Order regime
shows how the absence of a legal framework and the severe damage to the rule of
law had long-lasting effects on the corruption of the intelligence institution
itself and its failure to fulfill the raison d'être of any intelligence
institution standard. The legal frameworks that were established could not
fully prevent the misuse or exploitation of intelligence institutions from
politicization by powerful figures. However, at the very least, the existence
of a legal framework means there is still a channel for oversight or checks and
balances as long as the constitution and democracy are upheld, and internally,
by the integrity of its officials to remain true to the constitution.
CONCLUSION
This study highlights the integral connection
between Indonesia's legal framework, the rule of law, and the nation's
resilience across political, economic, social, demographic, security, and
defense spheres. The quality of democracy is intricately linked to the quality
of the legal framework, as dirty politics can lead to poor legal formulations,
weakening the rule of law and democratic foundations. Moreover, a robust legal
framework is essential for economic development, which in turn enhances social
stability. Security measures, including securitization, rely heavily on legal
frameworks for success, while historical examples illustrate the importance of
legal structures in national defense. Overall, the legal framework and the rule
of law are intertwined, serving as vital pillars for Indonesia's national
resilience, and their inadequacy could significantly impact the nation's
ability to withstand internal and external shocks. Thus, addressing and
enhancing these aspects are imperative for fostering robust national
resilience.
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Copyright holder: Stanislaus
Vicky Primanda, Muhammad Syaroni
Rofii (2024) |
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First publication right: Asian Journal of Engineering, Social and Health
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