Is the Dichotomy of Legal Systems Still Relevant?

By Muhammad Haaziq Bujang Syarif

03 Jan 2025 20:07 WIB 03 January 2025 20:07 WIB 6 minutes reading time: 6 minutes 72 read

The dichotomization of the legal system, which is used as an argument to justify the disparity of decisions while ignoring the value of justice, cannot be justified. The dichotomy itself is no longer relevant to the dynamics...

Is the Dichotomy of Legal Systems Still Relevant?

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Table of Contents

Issues at a Glance
Dichotomy of Legal Systems, Stagnation of Legal Progressiveness
End the Dichotomy, Explore the Value of Justice

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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?