Courtroom Decisions Between Legal and Social Justice

Law in its legal text is like an inanimate object and idle, containing provisional norms and aspirations with the aim of protecting society from crime and greed by regulating what is permissible and what is not permissible.

The legal text is not yet a living law, there are always people who break the law. There is a gulf between law as a written ideal and its practice.

So when are the legal texts transformed into living law? When an act of violation against legal norms is brought to court and there is a judge's decision, then that is the living law, as a result of an examination of a contended legal case.

The judge's decision in the murder case of Brig. Yoshua Nopryansahin the light of legal anthropology justifies its position as living law that must be obeyed by all parties.

Law indeed is rooted in conflicts and disputes so that the most appropriate way to find living law is through the method of legal arbitration over conflicts or disputes. In a courtroom, legal texts or articles are fundamentally debated and contended.

The judge's ruling may be different from the legal text-based prosecution due to the revelation of new legal facts that were hidden before. Social, political, cultural and economic aspects are very much connected with the occurrence of a legal case.

Our problem

Indonesia's current situation shows how the legal texts are being interpreted into law enforcement practices in the courtroom. That is a big test.

Among them are the acquittal of alleged perpetrators of fraud (Indosurya case), light punishment for defendants in corruption cases, including those perpetrated by law enforcement officials. On the other hand, a victim of sexual violence ended up in prison.

Judge's decisions have a pivotal position to restore justice for those whose rights have been violated. They must illuminate legal impasses, as well as being markers of aspired-for Indonesian legal reform.

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In critical legal theory, the law is a double-edged sword, with the negative edge being interpreted as benefitting those in power. From the process of formulation to its implementation through courtroom decisions, the law must be used as a tool to filter power and vested interests.

With power, people may have a monopoly on the interpretation of law. Being greedy to maintain the status quo of power, they can decide on their own who is a good person and a criminal, and whether or not an act is a violation of the law. Good and evil become interchangeable. False rationality is spread to fool the public into giving legitimacy.

Court decisions, including those at the appellate and cassation levels resulting from an opaque and inexplicable legal system, are responded to by the public in their own way. The Supreme Court decisions No. 16P/HUM/2006 and No. 26P/HUM/2007 rejected civil society's request for a review of the regional regulations of Bantul and Tangerang, which had discriminatory effects on women.

The court’s decree was simply procedural without substantive argument. The review was carried out more than 180 days after the issuance of the regional regulation. In another case, Supreme Court decision No 17P/HUM/2021 annulled the 2021 joint ministerial decree (SKB) by three ministries that banned public schools from prescribing religious attire and symbols for students. In fact, this joint ministerial decree had been long awaited by the community because of their concerns about the negative impact on schoolchildren and their families (Human Rights Watch, 2021).

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National Commission for Women (Komnas Perempuan), civil society figures and legal experts have conducted public examinations and legal literacy as a form of opposition to these two Supreme Court decisions. The civil society movement wants a hearing process at the appeal level to be transparent and open to the public. Such a measure should have no barriers in the digital era.

With an argument that they follow the law, adhere to objectivity and neutrality, judges’ decisions may look appropriate and valid. They technically and procedurally are, but substantially are not. Legal justice often comes out in infringements against substantial justice.

Legal texts drafted out of the interpretation of the legal formulators and authorities may also conflict with common sense, public interest and even humanitarian values. Courtroom decisions by supreme judges or the judges in big cities should have more of a landmark value compared with decisions in regional courtrooms and those in remote areas outside Java where judges face various barriers.

Justice mouthpiece

We often feel resigned to the codification of laws, whose roots come from Dutch colonial rule. In fact, the Netherlands itself has long held that the source of law is not only the codification of laws, but also judges’ courtroom decisions. Of course, a judge's decision that has a landmark value makes a legal breakthrough and gives hope for justice seekers. Various programs were launched by the Dutch Supreme Court in the hope that judges' decisions in 12 provinces had legal certainty by virtue of their quality. The position of judges’ decisions is so pivotal it is referred to as the secondary legislature.

Our judges generally still place themselves as literally channeling mouthpieces of laws (research by the Judicial Commission in 16 cities, 2017). It is common for prosecutors and police to see criminal law and practice it like "holy writ", with them struggling to navigate the development of new law, including the development and practice of international law. Not many laws ratified by international law have been adopted in dealing with cases, especially crimes against humanity.

Of course, criminal charges must be proven accurately and precisely according to the legal texts to avoid making mistakes in convicting people. However, simply being legalistic in thinking, in seeking to provide justice, is not enough. Law enforcers, especially judges, must look at a case with an "eagle's eye."

The development of law has always been pushed ahead to catch up with the rapid development of society in the digital era. Social dynamics are ever changing. So are people’s demands for justice, especially since the post-1998 reforms. After all, we are part of the international community, through human rights principles and standards we have ratified from international law.

We are part of the international community, through human rights principles and standards we have ratified from international law.

The need for legal reform has reverberated widely from Eliezer's presence as a justice collaborator in the Yosua murder case. There are those who claim to be “friends of the court” (amici curiae), supporting judges for just decisions.

This kind of international legal practice is also inevitable in the Indonesian legal system because humanity and justice are globally respected issues. Persisting in the role as mouthpiece for outdated laws can no longer be relevant to justice provision, regardless of the legal system (Barak, 2015).

Judge deficit

The judge's decision in the Yoshua case was celebrated like a victory for the civil society movement. The public had long been waiting for a judge's decision that reflected an effort of harmonizing legal justice with substantive justice. There may have been many other courtroom decisions at first-level trials or appellate and cassation levels that were also good, but not known to the public.

However, the fact that judges may fall to unjust decisions is a pitfall for which the judge cannot be solely held responsible. Besides the juridical problems related to the impartiality of judges, we currently lackthousands of judges (Judicial Commission, 2021). This is down to the government’s past policy, which moved for a moratorium on recruiting judges for five to seven years due to a conflict of authority between the Supreme Court and the Judicial Commission regarding the authority to select judges.

If the lack of judges is not addressed seriously and urgently, not only will the impact be in the form of judge quantity, but courtroom judgment quality is also at stake. The shortage of judges apart, the mechanism for hiring judges must prioritize competency, namely knowledge, skills and integrity. There should be no more collusion and nepotism in the recruitment, promotion and transfer of judges. Openness and accountability in the courtroom has at the moment become a public concern nationwide.

KOMPAS/RADITYA HELABUMI

Sulistyowati Irianto

Sulistyowati Irianto, Professor of Legal Anthropology, School of Law, University of Indonesia (UI)

This article was translated by Musthofid