By: Sunardi, Head of the Master’s Program in Notarial Law, Postgraduate Program, Universitas Islam Malang (UNISMA)
In today’s era, one of the most pressing imperatives for every holder of public trust, particularly those entrusted with the administration of law is the realisation of a “new norma” within the construction of their profession. This is because far too many have previously strayed from the ethical boundaries of their office, resulting in serious harm to the world of justice and to the communities seeking it (justiabelen).
William G. Andrew, in Constitutions and Constitutionalism, identifies three elements of constitutional consensus: (1) the general goals of society, or the general acceptance of the same philosophy of government; (2) the basis of government, the foundational rules underpinning the administration of the state; and (3) the form of institutions and procedures for the conduct of state affairs.
Among other things, Andrew’s thinking underscores the strategic and fundamental position of state administrators who have been entrusted with authority by the state. State administrators are assigned roles in accordance with the rules of the game, tasked with fulfilling and realising the sacred mission of the constitution, particularly in a nation such as Indonesia, which defines itself as a state governed by law (negara hukum). For as long as there is no renewal in the realm of norm enforcement, the “pandemic” will not be limited to COVID-19 alone; other viruses of a different nature may equally take hold.
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The state administrators most directly connected to the sacred mission of the rule of law are law enforcement officials. It is in the hands of these power-holders that the fate of the nation and its people is determined. A rule-of-law state labelled a “failed state” reflects the existence of varied human behaviour, particularly among law enforcement personnel. In which individuals fail to conduct themselves as steadfast pemangku amanat (trustees of public authority).
Students of legal history will understand that the term rechtsstaat (rule of law) emerged in the 19th century, younger than other constitutional concepts such as democracy, constitution, and sovereignty. According to Soediman Kartohadiprodjo, the term rechtsstaat was first used by Rudolf von Gneist, a professor in Berlin. The concept of the rule of law itself, however, had already been conceived since the 17th century, alongside the rise of resistance against absolute, authoritarian, and arbitrary systems of governance. Theoretically, the concept emerged as a reaction against traditional doctrines of state sovereignty advanced by thinkers including Augustine and Thomas Aquinas (theory of divine sovereignty), Machiavelli, Paul Laband, and Georg Jellinek (theory of state power), Jean Bodin (theory of royal sovereignty), Thomas Hobbes (homo homini lupus, the constructivist theory), Rousseau, Montesquieu, and John Locke (theory of popular sovereignty), and Hugo Grotius, Krabbe, and Léon Duguit (theory of legal sovereignty, or supremacy of law). All of these frameworks remain relevant in the empirical realm specifically in how norms can renew the professional conduct of practitioners and the lives of communities dependent on their services.
Indonesia’s distinguished philosopher Franz Magnis-Suseno argues that, from a moral-political standpoint, there are at least four primary reasons why people demand that the state be governed on the basis of law: (1) legal certainty; (2) the demand for equal treatment; (3) democratic legitimacy; and (4) the demand of reason (akal budi).
The philosopher’s reference to the “demand of reason” points fundamentally to the ethical dimension of professional practice. Whenever a profession is not conducted on the basis of ethical values, the harm inflicted upon society is immense. Given this reality, what the current era demands is a renewal of working methods and professional conduct aligned with new norms not norms that are forcibly bent to serve vested interests.
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Mahfud MD has rightly reminded us that, in order to guarantee that the power entrusted to every state administrator is exercised in accordance with the very purpose for which it was granted and to prevent its abuse the conferral and exercise of that power must be grounded in law. This is the very meaning of the rule-of-law principle, both in the context of the rechtsstaat and the rule of law. Law functions as the software that directs, limits, and controls the conduct of the state. Yet even within this framework, the instrument of the “new norma” In the form of the enforcement and strengthening of ethics remains the decisive factor.
We know that abuses of power can take the form of betraying the principle of legal equality, or of implementing a discriminatory judicial system. It is here that the “new norma” can be deployed with even greater force to accompany and safeguard the performance of every actor within the justice system.
The “new norma” is not a slogan, it is an invitation to renew every form of conduct that has previously stood as an obstacle to the building of a strong and credible state. Any element of the judiciary can easily declare their commitment to it, but to practise it consistently demands extraordinary courage. Such consistency is of immense value precisely because within judicial elite circles, one of the most prevalent viruses is inconsistency itself.
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*) Author: Sunardi — Head of the Master’s Program in Notarial Law, Postgraduate Program, Universitas Islam Malang (UNISMA)
*) This opinion piece is the sole responsibility of its author and does not constitute the editorial responsibility of timesindonesia.co.id
