Enhancing the civil liability system after 'Gurita' tragedy
Enhancing the civil liability system after 'Gurita' tragedy
By Peter A. Bell
SALATIGA (JP): As details emerge from investigations into the tragic sinking of the ferry Gurita off the Aceh coast on Jan. 19, it seems increasingly clear that negligent behavior on the part of some persons in charge of the ship was responsible for its loss.
Even as families of those killed in the sinking begin to deal with the realization that their loved ones will never return, efforts are underway to avoid or to affix blame for the disaster. Already, completely contradictory versions of the sinking are coming from government officials and from the Aceh police, who are investigating the sinking independently because they lost several of their fellow officers in the sinking.
Faced with such conflicting assessments of fault -- common everywhere in the world after such a catastrophe -- The Jakarta Post wisely called in a Feb. 5 editorial for a thorough investigation of the matter by an independent entity. The attribution of responsibility for such massive loss of life is important to the nation as a whole, as well to those who lost family and friends on the Gurita.
Much more can come, however, from this tragedy, both for its victims and for all of Indonesia. Having focused the attention of this maritime nation on critical issues or transport safety, the Gurita disaster can be an impetus for the creation of a system which will reduce accidental death and injury everywhere in the archipelago.
Such a safety-enhancing system already exists in Indonesia. The Civil Code already permits persons injured by the negligence of others to sue them for the damage caused to the victims. Properly implemented, this civil liability law can help immensely to make Indonesia a much safer place, not only for those who crowd onto ships, but also for all its citizens.
A well functioning civil liability system would do this principally in two ways. First, it would affix responsibility for accidents involving serious injury or death. Second, it would force those entities responsible for the accidents to pay substantial compensation to those injured or killed by their wrongdoing.
Facing the threat that they might actually have to pay for the harm that their unreasonable behavior may cause, ferry operators, bus companies and other risky enterprises would quite naturally prefer to commit some of their financial and human resources to reducing the chances that accidents will occur.
If such enterprises would not take reasonable safety precautions, civil liability judgments would soon either put them out of business, or force them to price their products or services significantly higher than those of their safer competitors. Either way, more dangerous enterprises would rather rapidly be supplanted by those which pay more attention to safety.
In effect, a civil liability system creates a national network of safety "police." In some ways, they are like the Aceh police who seem to be uncovering more of the realities about the Gurita accident: they are people who are determined to investigate an accident thoroughly and to see to it that the persons or enterprise responsible for the accident pay for the wrong they have done. As with the Aceh police, it is the persons close to the victims, or the victims themselves, who activate the civil liability system's "policing" function.
While the civil liability system -- lawsuits against injurers for money damages by an accident's victims -- is set in motion by these persons with the strongest interest in accidental injuries, its sanctions are imposed only after careful, thorough investigation and independent decision-making. Moreover, its sanctions -- money damages -- depend on the nature and extent of harm done in a particular situation, as decided by a neutral fact-finder who has heard full evidence about that harm. No civil liability is imposed unless a court finds that the evidence about an accident shows that it was caused by the defendant enterprise or person's wrongdoing.
All this safety policing and investigation will take place without any addition to Indonesia's government bureaucracy and without any more costs to the public. All that is needed are private lawyers and law firms, with sufficient knowledge and courage to provide representation to injury victims and their families in civil liability lawsuits against wrongdoing enterprises. Paid for their work from the proceeds of successful victim losses, such lawyers will quickly develop the kind of expertise and initiative necessary for victims to develop effective evidence about the causes of accidental injury.
Of course, the Indonesian civil liability system must be strengthened if it is to provide these investigative and policing services with respect to accidents. Procedural rules must be developed which permit both the injured and the accused injurer to discover as fully as possible what happened to cause the accident. The court decision allocating responsibility for the injuries must be made carefully and independently.
Until Indonesian citizens and lawyers gain more confidence in judges' freedom from the undue influence of powerful interests, the civil liability system might wisely opt to make use of the sort of jury system at work in several other countries. A jury system turns over the job of deciding the facts about a particular accident to a jury of 6-12 ordinary citizens, chosen largely at random. That group hears all the evidence relevant to the particular lawsuit, decides what really happened, and then disbands. Researchers in countries using the jury system have found juries to be unusually competent decision-makers. Moreover, juries are notoriously difficult to corrupt, due to their one- time decision-making status.
With a well-functioning civil liability system in place, the safety of Indonesia's ferry passengers, bus riders, product users and the like could no longer be a matter of indifference to those with the power to affect their lives. Indonesian citizens throughout the archipelago could proceed more securely with their lives, knowing that each of them has the power to call to account those whose unreasonable behavior subjects them to harm.
If the Gurita disaster should lead to the legacy of a stronger civil liability system in Indonesia, its passengers' deaths will not have been completely in vain.
The writer is a Visiting Professor of Law at Satya Wacana Christian University in Salatiga on leave from Syracuse University in the United States.