Dissenting Opinion: What It Is and Why It Matters

Legal Literacy - In an ideal world, court decisions are always unanimous and irrefutable. However, reality says otherwise. Judges, as human beings with different backgrounds and thoughts, cannot always reach absolute agreement. This is where dissenting opinion plays an important role. This term refers to a "different opinion," a voice that bravely steps out of the majority in a court decision.

This article will comprehensively explore dissenting opinions, from their definition and function to the debates surrounding them.

Understanding Dissenting Opinions: Accepting the Reality of Disagreement

A dissenting opinion, simply put, is an opinion expressed by one or more judges who disagree with the majority decision in a case. This includes differences of opinion regarding:

Legal Facts: For example, the minority judge's interpretation of the evidence presented at trial differs from the majority judge's interpretation.
Legal Considerations: The minority judge may argue that the legal basis used by the majority judge is inappropriate or irrelevant to the case.
Verdict: Ultimately, a dissenting opinion leads to a different final conclusion, namely the decision desired by the minority judge.

A dissenting opinion is usually stated directly in the court's decision. This has an important purpose, namely:

Transparency: The public can see the decision-making process in its entirety, including differences of opinion among judges.
Accountability: Judges who express a dissenting opinion are responsible for their views, which are officially recorded in the court's decision.

Functions of Dissenting Opinions

The presence of a dissenting opinion is not merely a "discordant note" that disrupts the harmony of the court. On the contrary, a dissenting opinion has an important function in the judicial system, including:

Encouraging Critical Thinking: The presence of different views encourages judges to constantly test the legal basis and facts underlying their decisions. The majority judges must also strengthen their arguments to reach an agreement. This process, in the end, produces a more tested decision.
Maintaining the Nobility of Law: A dissenting opinion can be a counterweight if the majority decision is considered inaccurate or has loopholes. A strong dissenting opinion argument can minimize the risk of errors in court decisions, while maintaining public trust in the judicial system.
Source of Precedent in the Future: A dissenting opinion containing strong arguments and new perspectives can become a reference for future decisions, especially if it is relevant to similar cases. In the development of law, dissenting opinions sometimes "precede their time." Arguments that were initially not accepted by the majority may become the dominant view in the future along with social changes and legal developments.

Examples of Dissenting Opinions Worldwide

Dissenting opinions are not new in the legal world. Throughout history, many dissenting opinions have had a significant impact. Here are some examples:

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Plessy v. Ferguson (1896): A controversial decision by the United States Supreme Court that legalized racial segregation. However, Judge John Marshall Harlan in his dissenting opinion stated that segregation was a violation of the principle of equality before the law. This view became the basis for the civil rights struggle in the United States in the following century.
Brown v. Board of Education (1954): The landmark decision of the United States Supreme Court that ended racial segregation in public schools. The dissenting opinion of the four justices actually reinforced the majority decision, as it showed how controversial the issue of segregation was at that time.

Dissenting Opinions in Indonesia: Between Obstacles and Hopes

Indonesia recognizes dissenting opinions through the decisions of the Constitutional Court (Mahkamah Konstitusi/MK). However, the presence of dissenting opinions in Indonesia is relatively new. The MK only issued a dissenting opinion for the first time in connection with the 2024 presidential election dispute (PHPU).

The emergence of dissenting opinions in Indonesia has sparked debate. Supporters of dissenting opinions see it as a progressive step that demonstrates the maturity and transparency of the MK's judicial system. Conversely, those who oppose argue that dissenting opinions can weaken the MK's decisions and create legal uncertainty.

Several obstacles need to be faced in order for dissenting opinions to function optimally in Indonesia, including:

Lack of Legal Debate Culture: In Indonesia, the culture of debating openly and constructively in the legal sphere is still minimal. This can prevent minority judges from expressing their dissenting opinions bravely and frankly.
Political Pressure: Concerns about political pressure, both from within the judicial institution and from external parties, can make minority judges reluctant to express dissenting opinions.
Lack of Supporting Mechanisms: The absence of clear and systematic mechanisms to support the delivery of dissenting opinions, such as training for judges and the provision of publication platforms, can hinder the effectiveness of dissenting opinions.

Despite the obstacles, dissenting opinions in Indonesia have bright prospects. Along with increasing legal awareness and democratic culture, it is hoped that dissenting opinions can be accepted as an important part of a healthy and accountable judicial system.

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Increasing the Courage and Effectiveness of Dissenting Opinions

Efforts to increase the courage and effectiveness of dissenting opinions in Indonesia can be carried out through several steps:

Building a Legal Debate Culture: It is important to encourage a culture of debating openly and constructively in the legal sphere, both through legal education, seminars, and public discussions.
Promoting Judicial Independence: Strengthening judicial independence through institutional reform and improving welfare can help them to be free from political pressure and express dissenting opinions without fear.
Improving Supporting Mechanisms: The government and judicial institutions need to formulate clear and systematic mechanisms to support the delivery of dissenting opinions, such as training for judges, providing publication platforms, and regulating access to information for the public.

A dissenting opinion is not only about disagreeing, but also about having the courage to voice a different perspective. With courage and adequate mechanisms, dissenting opinions can be an important pillar in a dynamic, accountable, and justice-upholding judicial system.

Closing

A dissenting opinion is an important instrument in a democratic judicial system. Its presence in Indonesia signifies a step forward towards a more accountable and transparent judicial system. Although still faced with various obstacles, dissenting opinions have the potential to strengthen and advance the law in Indonesia. With joint efforts from various parties, dissenting opinions can be a courageous voice in maintaining the dignity and dynamism of law in Indonesia.