Issues at a Glance

The legal world is once again shaken violently due to a monumental decision, in a negative sense, handed down by the Corruption Court (Tipikor) to Harvey Moeis. This decision invites controversy that injures the public's sense of justice, 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 (inequality) in decisions. For example, the public highlighted other similar decisions such as the decision against Budi Said which cost the state finances 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 the dichotomy of legal systems and relying on the value of justice only as far as normative matters. To what extent is the relevance of the dichotomy of legal systems and can the value of justice only be limited to a normative dimension?

The legal system in the world is broadly divided into common law system and civil law system. These two systems have their own characteristics and followers. Countries that adhere to civil law system are usually French colonies and their derivatives because the basis of this legal system is the 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 seated as mouthpieces of the law or only dictate what the law says. The space for legal progressiveness through judge innovation in finding the law is not too broad. 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 within the corridor of the law.

If it is different from the law, then the judge must describe the legal decidendi or its legal considerations in order to maintain 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 the decisions of one judge are not bound by those of another.

The opposite of civil law system, common law system carrying 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 laws 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 he 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.

Rigid dichotomy between civil law system and common law system is no longer relevant to the dynamics of legal progressiveness. 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 this because it adheres to the principle of legal uniformity or legal uniformity as stated in the 2010-2035 Judicial Reform Blueprint and the Supreme Court Circular (SEMA).

Through the Supreme Court (MA), the Indonesian judicial system itself has begun to accept the principle of stare decisis for example with the issuance of landmark decision which is also a jurisprudence and SEMA. Although SEMA does not occupy a hierarchy of laws and regulations that must be obeyed, SEMA is often a reference for lower courts. For example, SEMA Number 2 of 2023 concerning the registration of interfaith marriages. On the other hand, there is also landmark decision MA which consistently decides on the rights of children aged 12 years to determine for themselves whether to follow their father or mother.

End the Dichotomy, Explore the Value of Justice

Quoting from the Indonesian Supreme Court Magazine Edition XXXII of 2023 page 99, the debate between the principles of stare decisis or legal uniformity this is no longer an important issue because the most important thing is to realize justice, legal certainty, legal benefits, and legal order. Legal justice itself should not only be understood as having a normative dimension, that is, 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 since 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.