Issue at a Glance
The legal world is once again shaken by a monumental decision, in a negative sense, handed down by the Corruption Court to Harvey Moeis. This decision invites controversy that injures the sense of justice society, to quote Prof. Mahfud MD's language on his YouTube channel. The reason is none other than the court's decision to impose a criminal sanction of only 6.5 years in prison, lower than the Prosecutor's demand of 12 years in prison, even though the state losses caused were very fantastic, namely Rp. 300 trillion.
The court's decision stating that Moeis was proven to have violated Article 2 paragraph (1) of Law Number 31 of 1999 concerning Corruption Crimes has reaped extraordinary controversy from the public. The public began to compare Moeis' decision with other decisions with gaping disparities. For example, the public highlighted other similar decisions such as the decision against Budi Said, which caused state financial losses of Rp. 1.1 trillion and was sentenced to 15 years in prison. There is an oddity in the form of a disparity in decisions due to the imbalance between the amount of state losses and the criminal sanctions imposed.
What is interesting is that there is an issue that supports this court decision by arguing that court decisions are not mutually binding. As long as the judge decides based on the law, then the judge's decision is correct and must be fair because that is the provision of the law. The court's decision regarding Moeis, if highlighted from a normative point of view and in a positivist paradigm, is indeed correct. Article 2 paragraph (1) of the Anti-Corruption Law itself has limited the minimum prison sentence to 4 years and a maximum of 20 years, while the court's decision is 6.5 years.
Judges only need to look at the law and do not need to look at similar judge's decisions in their considerations, that is the argument supporting Moeis' decision. In addition, the issue raised is also that Indonesia adheres to civil law system and not common law system so that judges are not bound by previous decisions or even decisions issued by higher courts. This statement is intriguing for the author, especially on arguments built on dichotomy legal system and relying on the value of justice only as far as normative. How relevant is the dichotomy of the legal system and can the value of justice only be limited to a normative dimension?
Dichotomy of Legal Systems, Stagnation of Legal Progressiveness
Legal systems in the world are broadly divided into common law system and civil law system. Both systems have their own characteristics and followers. Countries that adhere to civil law system is usually a former French colony and its derivatives because the basis of this legal system is Napoleon Code which is considered the first legal codification. Napoleon Code which was adopted in France, developed and spread under French rule over its colonies. Therefore, the Netherlands and Indonesia adhere to this system because they are under the shadow of French colonialism.
The main characteristic of this legal system is that judges are positioned as the mouthpiece of the law or only re-dictate what the law says. The space for legal progressivity through judges' innovation in finding the law is not very wide. Everything contained in the law must be obeyed and the law must not be deviated from in the judge's decision, even if it is. Therefore, the law provides maximum and minimum limits, for example in terms of sanctions, so that judges can maneuver while remaining within the corridor of the law.
If it is different from the law, then the judge must elaborate legal decidendi or legal considerations in order to defend the arguments of the decision. Jurisprudence that becomes a precedent for judges can only be adopted if the decision gives rise to norms that are not regulated in the law, such as the "Chimney Decision". The implication is that there is a very wide disparity in decisions because one judge's decision is not bound to another.
In contrast to civil law system, common law system carries the principle of stare decisis or judges are bound by previous court decisions, especially in higher courts. In this legal system, judges do not adhere to the law because the tradition of legal codification does not have much place in this legal system. The judge who will decide must consider the previous judge's decision and it is highly condemned if it violates the previous decision. However, if the judge finds a discrepancy between the old decision and the concrete case being faced, then the judge can make a different decision as long as they can build an argument against the form of "deviation". With such practices, disparities in decisions will be very rare because every judge is bound by jurisprudence except in special circumstances.
The rigid dichotomy between civil law system and common law system is no longer relevant to the dynamics of legal progressivity. A country's interaction with the world opens up opportunities to influence each other, especially in aspects of the applicable legal system. Indonesia itself does not adhere to the principle of stare decisis because it adheres to the principle of legal uniformity or legal uniformity as stated in the Blueprint for Judicial Reform 2010-2035 and the Supreme Court Circular (SEMA).
Through the Supreme Court (MA), the Indonesian judicial system itself has begun to adopt the principle of stare decisis for example, with the issuance of landmark decision which simultaneously became jurisprudence and a Circular Letter of the Supreme Court (SEMA). Although SEMA does not occupy a mandatory hierarchical position in the legislation, SEMA is often a reference for lower courts. An example is SEMA Number 2 of 2023 concerning the registration of interfaith marriages. On the other hand, there is also a landmark decision Supreme Court that consistently rules on the right of a 12-year-old child to decide for themselves whether to go with their father or mother.
End the Dichotomy, Explore the Value of Justice
Quoting from the Supreme Court Magazine of the Republic of Indonesia Edition XXXII of 2023 page 99, the debate between the principle of stare decisis or legal uniformity is no longer an important issue because the most important thing is to realize justice, legal certainty, legal benefit, and legal order. Legal justice itself should not only be understood as having a normative dimension, namely that what is in accordance with the law is justice. The values of justice themselves must always be extracted from the values of society based on the mandate of Article 5 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power. How is it possible that the values of justice can only be sought from the text of the law, which is essentially flawed from the time it was enacted because it will always lag behind social dynamics and times?
The conclusion that the author wants to convey is that judges in any court should no longer only rely on the law and ignore other variables such as previous decisions and values in society. The author hopes that every judge in any court can uphold the principle of justice that is extracted from the values in society, not just relying on the law.
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