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.