The meaning of equality before the law

Ridarson Galingging, Jakarta

Despite the popularity in Indonesia of the phrase "the right to equality before the law," its real meaning, application and interpretation has never been judicially tested. Its most fundamental meaning is the right to have the same procedures and principles applied under the same conditions.

But it does not mean that laws must treat all people exactly the same. Laws do discriminate, sometimes with good reason and sometimes not.

We saw a very interesting test of equality before the law recently when the Corruption Eradication Commission (KPK) summoned Chief Justice Bagir Manan to the KPK's office to be interrogated as a witness in an attempted bribery case. Bagir Manan agreed to cooperate, only if the interrogation was conducted at his office in the Supreme Court complex.

Politicians and lawyers claimed (incorrectly) that the principle of equality before the law would be violated if the Chief Justice was interrogated in his office rather than at the KPK office, as was the practice for other witnesses and suspects.

Indonesia's Code of Criminal Procedure (KUHAP) allows the interrogation of a witness at his/her place.

The question of equality before the law was also raised by H. Azi Ali Tjasa and his colleagues at the Constitutional Court (MK). They are challenging the Supreme Court rules (SEMA) No. 4/2002 which forbids the summoning of court officials as witnesses or suspects related to their judicial work. Tjasa argues (again incorrectly) that the SEMA violates the principle of equality before the law.

How do we decide when equality before the law is being violated?

Article 27 (1) of the 1945 Constitution states that all citizens are equal before the law, but does not clearly define what this means.

It helps to realize that law is both procedural and substantive. Procedural law refers to the steps and actions taken to have a right or duty judicially enforced. This is sometimes called "due process."

Substantive law creates, defines and regulates the rights, duties and powers of all parties subjected to the law. This refers to the content of laws, rather than how they are applied.

There are many laws that intentionally treat people unequally. For instance, most countries have laws allowing adults to drink beer but not children. Equality before the law is maintained as long as all children are prosecuted for drinking beer and no adults are.

The principle that all persons are equal before the law means that existing laws must be applied in the same manner to all those subject to them. The right to equality before the law does not refer to the content of legislation, but rather exclusively to its enforcement.

It means that judges and administration officials may not act arbitrarily in enforcing laws. Fact patterns that are objectively equal must be treated equally, and objectively unequal fact patterns must be treated unequally.

In other words, a judge must produce similar legal consequences for similar fact patterns, regardless of personal sympathy, antipathy or other motives with no objective basis.

At the international level, the International Covenant on Civil and Political Rights (ICCPR) in Article 26 guarantees a general right to equality before the law and equal protection of the law, as well as a general prohibition of discrimination, which is directed at the legislature.

Returning to cases arising in Indonesia, when the Supreme Court issued SEMA No. 9/1976 forbidding lawsuits against court decisions and judicial officers who are performing their judicial work, the ruling did not violate the principle of equality before the law because judges have what is called judicial immunity, which is an important protection mechanism for judicial independence.

Judges are often called upon to decide controversial, difficult and emotive cases. Judicial immunity shields them from the concerns that disgruntled litigants will hound them with lawsuits charging improper judicial behavior.

What about a law that provides a special tribunal for military personnel where the rules of procedure in these tribunals usually differ from those of regular domestic courts? The existence of military courts, empowered to try military offenses by soldiers, does not violate the principle of equality before the law and the principle of equality before the court as set forth in Article 14 of the ICCPR, as long as due process guarantees determined in ICCPR are observed.

Military tribunals allow greater secrecy, and this may protect the security of the nation. But using military tribunals for trying civilians will render the country vulnerable to criticism, and possibly reprisals, if its use cannot be justified.

A serious concern is that the standard of procedural fairness in military trials may be perceived to be, lower than in ordinary domestic fora. Military tribunals may also be perceived as being less impartial than other legal tribunals.

Among civilians, there exist different fora for addressing different legal questions. For example, courts that handle marriage and divorce questions for Muslims and Christians are different. An Indonesian Muslim filing for a divorce can only do so in an Islamic court, while non-Muslims file in the ordinary district court.

Evidence that equality before the law is not an absolute principle can also be found in procedural rules that apply for conducting investigation of crimes committed by Supreme Court justices, legislators or the president. They are different from the procedures that apply for investigation of crimes committed by common people.

To initiate an investigation of crimes committed by common people, the police can directly summon or arrest the suspects when they have enough evidence. But for summoning or arresting Supreme Court justices or legislators, law enforcement officials are required to get presidential approval before the summons or arrest can be made.

The writer (r-galingging2004@law.northwestern.edu) is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at Northwestern University School of Law in Chicago.