Do Not Screw Up Legal Principles
In the Law on Mass Organizations context, for example, there was misunderstanding of the legality principles.
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“The government is not allowed to impose sanctions before the court rules an individual or organization guilty. Otherwise, the government violated the law, abused the power and acted arbitrarily.”
That statement has become a part of polemic related to the Law on Mass Organizations, which eventually twisted people’s understanding of legal principles. The polemic has occurred since the issuance of government regulation in lieu of law (Perppu) No. 2/2017, which was followed by the disbanding of Hizbut Tahrir Indonesia (HTI) based on the Perppu that was passed into law.
Screwing up legal principles
Many have said based on the presumption of innocence principle that the government cannot impose sanctions on a particular legal entity before the court declares it guilty of wrongdoing. Nevertheless, the government and some legal experts said based on the contrarius actus principle that the government is allowed to impose administrative sanctions without awaiting a court ruling.
Regarding the contrarius actus principle, there are counterarguments taking the akad nikah (wedding vow) as an example. It would be dangerous to follow the principle as it could lead to abuse of power and arbitrary acts. The principle could lead to the government arbitrarily revoking a couple’s marriage. “It would be dangerous if the government could revoke it. There must be a court ruling first,” the argument says.
Such a debate occurred because people misunderstood the legal principles. In the Law on Mass Organizations context, for example, there was misunderstanding of the legality principles, presumption of innocence, contrarius actus and consensual principles. It is correct to say that, based on the legality principle, each action of the government or the citizen must be based on the existing law. Based on the legality principle, an individual or legal entity (organization) is not allowed to get punishment without the presence of a law.
From this definition, it is known that the legality principle does not discuss whether any punishment is issued before or after a court ruling. The legality principle only stipulates that each action, be it by the government or an individual, must be based on the existing law.
Regarding the time or method of punishment, it depends on the branch of law because of the differences in legal principles. The legal principles in criminal law, in state administrative law, penal codes and others are different.
In the criminal code, there is the presumption of innocence, which says that someone cannot be punished before a court ruling. The presumption of innocence principle cannot be perceived to mean that we are not allowed to assume or discuss matters in mass media or conclude that someone has done a wrongdoing. Such actions are allowed. In fact, the law enforcers also process a crime through allegations, stating someone is a suspect.
The presumption of innocence principle has a certain meaning that someone cannot be stripped of his or her rights before the issuance of a court ruling. For example, someone must not be called a convict, his or her belongings must not be taken over (but they can be confiscated), his or her arrest is not called imprisonment (but detention), his or her salary must not be terminated (but delayed) and others. Thus, we are allowed to discuss, assume, allege and conclude socially that someone has committed crime. That is not a violation of the presumption of innocence principle.
Moh Mahfud MD
Different branch of law, different principle
In the state administrative issue, the legal principle is different, namely contrarius actus, which means an administrative ruling, such as business permit, worker recruitment and others cannot only be revoked by the official or office, which issued the permit.
If the office that issued the decision is the Law and Human Rights Ministry, the entity that revokes it should also be that ministry. In the state administrative law, there is no obligation that revoking a policy as a punishment must await a court ruling.
In fact, we can say that in the state administrative law, almost all revocation of a policy or decision as a sanction can be made before a court ruling. If the party that got the punishment feels they has been disadvantaged, they can file legal complaints through the court. That is why we have the State Administrative Court (PTUN), a court with the authority to look into a decision, including sanctions, made by a state administrative office or official.
There are many examples, such as the revocation of an entertainment business permit, the revocation of forest concessions and the revocation of a mining permit. It can be done without a court ruling. The revocation of a decision about mass organizations based on Perppu No. 2/2017, which has been passed into law, is under this category. It is true that in certain conditions, as specified in the Constitution or law, the contrarius actus principle does not apply, such as in the disbandment of a political party that can only be made by the Constitutional Court as stipulated in Article 24C of the Constitution.
The principle in the penal code is also different. The penal code does not recognize the principle of presumption of innocence. In the penal code, there is the consensual principle or agreement between parties. This principle means that the decision or agreement made legally serves as a law and binding unless the parties in the agreement agree to revoke it. If one party feels disadvantaged or wants to revoke it without the agreement of the other party, the issue must be brought to court or, if agreed upon, settled through arbitration.
In the penal code, the law enforcer or the government is not allowed to take action as long as the parties in the agreement do not dispute it and bring it to court. In this context, we have to understand that marriage, which is a union or agreement under the penal code that is materialized through the “wedding vow” and issued by the government, can only be revoked or canceled at the request of one party through a court ruling. The government cannot arbitrarily revoke it. Thus, we know that different branches of law have different principles. Do not screw it up.
MOH MAHFUD MD
Chairman of State Administrative Law Lecturers Association; Chief of Constitutional Court (2008-2013).
