Poor rulings hurt legal certainty

Everybody wants justice, but what they get is not always what they want. It is not because there is a gray area in justice. No. Just like the truth, justice is supposedly universal. The law and the legal system are not perfect and legal experts are not flawless. Judges might have different interpretations of the law, which results in conflicting court rulings. Even the Supreme Court, as the last resort, witnesses conflicts. The Jakarta Post's reporters Sugianto Tandra, Rita A. Widiadana, Sri Wahyuni and T. Sima Gunawan present a series of articles on this page, page 3 and page 12.

JAKARTA (JP): Should a hungry man be punished if he steals a loaf of bread from a rich family? Yes. He must be punished if he is guilty. The question is, what kind of punishment does he deserve?

A good judge will consider the motive behind the misdeed and look into the situation and conditions surrounding the case, as well as the sociocultural aspects. In other words, the judge must base the decision not only on the law, but also on ethics.

Legal sociologist Soetandyo Wignyosoebroto underlines the importance of ethics in court decisions.

"It is clear that stealing is against the law and that the thief must be punished. But it would be wrong if a man who steals because he is hungry is treated like one who steals to accumulate wealth."

"In such a case, I would agree if the judge gave him, for example, a suspended sentence and put him on probation," he said.

Soetandyo, a professor of political and social sciences from the University of Airlangga, Surabaya, and member of the National Commission on Human Rights, made it clear that a good judge should combine ethics and legal reasoning in the decision-making process.

Judges, however, don't necessarily agree. Some feel that ethical considerations complicate their implementation of the law. Other judges may base their legal reasoning on their own convictions. In short, a decision considered improper by one judge might be considered proper by another, and vice versa.

A high court can overrule a district court ruling and the Supreme Court can reverse a high court decision. In some cases, a decision made by Supreme Court justices can be annulled by the chief justice or by other Supreme Court justices.

Last month the Supreme Court reversed its earlier decision on Muchtar Pakpahan, leader of the unrecognized Indonesian Prosperous Labor Union.

In November 1994 the Medan District Court sentenced Pakpahan to three years in jail for inciting riots. The Medan High Court increased the sentence to four years, but the Supreme Court cleared him of all charges.

Deputy Chief Justice Adi Andojo Soetjipto, who presided over the three-member panel of justices handling the case, said that the word "incite" must be interpreted according to the circumstances surrounding the case.

However, upon the request of the Medan Prosecutor's Office, the Supreme Court reviewed Pakpahan's case. On Oct. 25, former chief justice Soerjono and justices Sarwata and Raja Palti Siregar annulled Andojo's decision as they believed that Pakpahan was guilty. They said that they had to stick to legal principles and that social concerns should not take precedence over the law.

Soerjono's legal reasoning and his treatment of procedure sparked a controversy. It was the first time in history that the Supreme Court had granted a prosecutor's request to review a case. In the past, in accordance with Criminal Code Procedures, it was only the defendant or the defense lawyer who would ask the Supreme Court to review a case.

A former Supreme Court justice, Bismar Siregar, said there was nothing wrong with the Supreme Court's decision to accept the prosecutor's request. He said that the Supreme Court had made a "breakthrough" in its interpretation of the Criminal Code Procedures.

Andojo pointed out, however, that the law should be interpreted proportionally.

It is understandable for people to make different interpretations since human beings are subjective.

But if judges are subjective, how can they ensure legal security?

Soetandyo said that a legal system is built to ensure legal security. Studying the system and mastering their knowledge of the law, he said, should help judges control their subjectivity. If judges fail to adhere to legal thinking and principles, they will lose control over their subjectivity.

"If this happens people will suffer," Soetandyo said. "The law will no longer be a power to protect people. The rule of law could become the abuse of law."

As mentioned in the 1945 Constitution, Indonesia is a state based on law and one that highly respects the rule of law.

Whether or not this is applied is another question.

Lawyer Todung Mulya Lubis said that the rule of law here is nothing but a "myth". He alleged that there are rampant violations of Criminal Code Procedures and that the Supreme Court has failed to meet the public's demand for justice.

"I am in despair. There is not much we can expect from the Supreme Court," he said.

Paulus Effendie Lotulung, an honorary professor at the University of Indonesia, disagrees. He said that the Supreme Court is not as bad as people think.

"I am sure that we still have good judges. They are clever but maybe they have not fully developed their knowledge, which can make them look stupid."

However, he said, "I do believe that there is room for improvement in the Supreme Court."

Sarwata, who became chief justice on Nov. 1, promised to do his best, be honest and to uphold the law and justice. But he said he needed time to consolidate the Supreme Court.

"Please be patient," he said.

Patience pays, but time flies. Indonesia will soon enter the era of globalization and legal certainty is crucial to economic development. Foreign investors will be reluctant to operate in a country whose government fails to provide them, or its people, with a degree of legal security. Regardless of which era we enter, the Supreme Court needs to meet the public's increasing demand for justice.