Law vs tech debate on trial

Law vs tech debate on trial

J.E. Sahetapy, Professor Emeritus in Law, Brawijaya University,
Malang, East Java

The debate about the validity of a live video conference in
the trial of Abu Bakar Ba'asyir, who is being tried for his
alleged involvement in a number of bombing incidents, was
triggered by the walkout of his lawyers who could not accept the
method used to present the testimonies of witnesses, who were in
detention in Singapore and Malaysia.

The practice is still controversial; the defendants' lawyers
said the method has not yet been clearly ruled upon in the
criminal code, though the video conference method has been used
in the trials of former chief of the National Logistics Agency
Rahardi Ramelan, to hear the testimony of former president B.J.
Habibie, and also in the East Timor trials.

The controversy reminds one of the work of Dutch experts in
criminal law such as A.E.J. Modderman (1838-1885) to D.
Hazelwinkel-Suringa (1889-1970). They referred to a classic
ruling of the Dutch Supreme Court of May 23, 1921 in connection
with electricity theft, a controversial issue at that time, given
that electricity was not yet recognized as an actual commodity
that could be stolen.

The criminal procedure code is now 22-years-old and was
originally claimed to be a great work of law. Yet when it was
first introduced its drafters could not have imagined the
possibility of a rapid technological progress.

The law expert Kranenburg, whose book I first read when I was
a freshman in 1954, wrote that law graduates should not be like
worms living on the rotten wood of positive law. Graduates must
open up their eyes, minds and heart to the changes of times.

Another law expert, A. Heijder, in his oration in 1970 at the
University of Amsterdam, among others said that the methodology
of the modern science of law must devote great attention to
current affairs. He said that there were three phases in criminal
law ideas, namely: (1) the normative and systematic ideas (2) the
naive and empirical ideas and (3) the philosophical reflection.

In the case of a conflict in the positive law, he said, the
normative approach could no longer be used. In other words, the
debate related to Articles 160 and 167 of the criminal procedure
code cited in the use of video conferences would not be fruitful
or satisfactory if approached only on the basis of the positive
law.

Of course this criminal procedure code must be revised -- but
when? It would be difficult to introduce the revision in a short
time, especially as legislators are plagued by the hectic
activity of the general elections.

So, the naive and empirical approach must be taken with the
third approach (philosophical reflection) as the guideline. In
the meantime, as Heijder wrote, it must be noted that
interpretation is not an analysis and it has not produced
understanding or a profound awareness of what exists now or what
will come in the future.

As long as video conferences are only a means to find the
material truth, there should be no reason to reject them. Law
experts, particularly attorneys, should continue to be critical
and should not be involved in intrigue. They should be
transparent and remain objective and fair.

They must not think pessimistically or optimistically in an
illusory manner, but must always nurture pragmatism and realism,
especially regarding the rapid and revolutionary progress in
technology. Not all legal experts, especially attorneys, can
always have these thoughts, but if there is a will to promote the
judiciary in the life of the nation and the state, nothing is
impossible.