By: Dr. Robintan Sulaiman, S.H., M.H., M.A., M.M., C.L.A. , To fill the functional position as Honorary Professor in the field of Police Law in Sekolah Tinggi Ilmu Kepolisian – Perguruan Tinggi Ilmu Kepolisian (STIK – PTIK)
- Background
Viralmediaindonesia – It has been known to public, that quite a lot of parties, including international observers (without any intention to judge such parties) argue that the Indonesian law is one of the most frowned upon.
Instead of discussing all the factors or issues which causes the Indonesian law to be considered as lacking, the author will focus on one single issue. Such issue is regarding the existence of “legal power” which is felt by various layers in the society, including the jurist themselves. A lot of parties assume that “the practice of law” in Indonesia is too rigid, by which it maintains focus only on the regulations, thus making it less flexible. This kind of perspective may be true, but it may also be false.
This type of anxiety and criticism is actually something reasonable, and may even have a positive value. According to the author, this is a sign that the legal conscience and sense of justice of the legal practitioners is still very much alive. Instead of disputing on the truth of the statement regarding “rigidity of Indonesian law”, surely it will be more productive and constructive, if we view it as an input which will encourage the reparation of legal enforcement system in Indonesia.
Looking at the cases in Indonesia, in reality there are quite a lot of cases which has become the victim of “law rigidity”. In these cases, substantive justice is superseded by formal certainty (rigidity). As an example, is the case of Nenek Minah which is sanctioned by Purwokerto District Court with 1 month and 15 days imprisonment with 3 months probation period, due to picking 3 cacao fruits in the plantation owned by PT Rumpun Sari Antan (RSA), Ajibarang, Banyumas. Another case is the Misran Case, a healthcare worker of Kuala Samboja Village which is sanctioned with 3 months imprisonment by Tenggarong District Court in 2009 for helping a villager. Misran was criminalized due to providing medication for the villagers, while he was not a licensed healthcare worker. Misran was claimed to have violated Article 108 paragraph (1) of the Healthcare Law (UU Kesehatan).
Such cases at least makes us think and ponder regarding the direction of legal enforcement in Indonesia. In fact, these cases should be a “slap” for legal enforcement in Indonesia.
The rigid practice of legal enforcement in Indonesia is suspected by some to be caused by the legal system in Indonesia, which is the civil law system. Civil law system itself is a legal system which focuses on the interpretation of written laws (laws and regulations). Many parties then assume that the common law legal system, which focuses on judge made law, is a legal system which provides more flexibility and freedom to reach substantive justice.
According to the author, the main issue is not on the civil law system adopted by Indonesia. As an example, the judges in France, which mostly adopts civil law, in practice quite a lot provides a verdict which is against the applicable positive law. This kind of matter also happens quite often in The Netherlands as the “heir” of the Indonesian legal system. Judges in The Netherlands often provide verdicts which is against the applicable positive law. The easiest example would be the Jurisprudence of the Bovag II (HR 11 January 1957), NJ 1959, 57. Through such verdict, the form of lack of consent is broadened to also include misuse of situation (misbruik van omstandigheden). (Van Dunne, 1987)
On the other side, although the judges in the common law legal system is more flexible to issue a verdict and change(s), it does not mean that the change(s) conducted can be conducted as freely. Consideration of the previous precedents and legal dogmatic is still required.
To shed some light to this debate, it is wise for us to look at a “legal” phenomenon which occurs in America. In the American history during the nineteenth century, one of the constitutional law principle which is held strongly (even turned into a dogma), is the existence of trias politica. Trias Politica in America itself is concepted as the existence of firm separation of state power between legislative, judicative and executive. In its development, the Supreme Court in America even then made major political verdicts based on the perspective that trias politica has surpassed the judicative authoritative power. This is conducted to decrease the boundary birthed by the trias politica concept in constructing modern America. From this phenomenon, the term “government by judiciary” appears. What is more interesting is America’s response to the reaction from the International world (and maybe also criticism from countries adopting the common law legal system or other trias politica follower state). America is in fact proud and states that such a thing is the “American concept of law”, “the distinctly American Development”, “the American approach to law” (Gilmore, 1977 & Schwartz, 1993, & Satjipto Rahardjo, 2008).
The story above at least illustrates that even within the common law legal system, there is still a rigid “regulation” (in this case trias politica). The courage and creativity of the judge to trespass such principle is not a product of the American legal system (since in reality it also comes as a shock to other countries also adopting common law legal system), instead from the paradigm and also thinking pattern which is embraced in America.
The rigid nature of the legal enforcement in Indonesia according to the author is mostly centered from the paradigm rigidity embraced by most jurist in Indonesia, which mostly embrace the analytical jurisprudence paradigm or rechtsdogmatiek. Analytical jurisprudence only sees inside the law and occupies itself by discussing and conducting analysis inwards, especially the law as a structure of regulation which is viewed as systematic and logical (Satjipto Rahardjo, 2004). Unfortunately, a lot of jurist and legal enforcer which embraces analytical jurisprudence falls into exaltation of laws and regulations as something infallible, where the system certainty shall be enforced even if sacrificing justice.
In response to this phenomenon, the paradigm of progressive law appears, which is one of the “colors” in our thoughts regarding the function and reality of law. The paradigm or notion of progressive law is sourced from Alm. Prof. Dr. Satjipto Rahardjo. This notion is conveyed by him through various seminar forums, discussions as well as various scientific media (books and others). The progressive law paradigm tries to create a radical and rooted change as well as breakthrough within law enforcement in Indonesia through the principle “law is for mankind”.
Historically, the thought of progressive law is a development or modification from the notion of responsive law which is developer by Nonet & Selznick. In the notion of responsive law, the law is always tied to the purposes outside the textual narration of the law itself (especially laws and regulations). Nonet & Selznick expresses as follows:
“thus a distinctive feature of responsive law is the search of implicit values in rules and policies…. a more ‘Flexible’ Interpretation that sees rules as bound to specific problem and contexts, and undertakes to identify the values at stake in precedural protection.” (Philippe Nonet & Philip Selznick, 1978)
Other than influenced by the notion of responsive law, the notion of progressive law by Alm. Prof Dr Satjipto Rahardjo is also influenced by the stream of legal realism and freirechtslehre, as well as the stream of sociological jurisprudence. Instead of relying on “regulation and behavior”, progressive law focuses more on the behavior factor above the regulation itself. This matter is very logical and rational, because no matter how perfect law is made (or maybe also “imperfect”), the field enforcement really depends on the contribution and of mankind. A good law can surely be enforced wrongly (against the purpose/ doelmategheid) or maybe enforced ineffectively, if the law enforcer(s) is incompetent. In contrary, as long as enforced by good and competent law enforcers, a bad law may not give rise to problems. (Satjipto Rahardjo, 2008)
Through this review, the author tries to lay out aspirations and thoughts regarding the application of progressive law paradigm within the practice of law enforcement, specifically in Indonesia’s policing. With such purpose, this review will discuss more on the application of progressive law paradigm itself. The theoretical review as well as basic concept regarding progressive law paradigm will not be discussed in detail, instead, it will only be slightly touched upon for the author’s argumentation basis.
