Source of Law

How can judiciary earn people’s trust? Perhaps this is a very common question being asked when you talk about judicial reforms all over the world. The answer seems quite common, i.e. that every judge and court apparatus must be seen to perform their duties as expected by the society, but in practice the expectation of the society may vary. Hence, the way in which the court builds up its legitimacy can also vary from one to another society. One thing is certain here, the need of reference, or the ‘source of law’ that can be shared by a certain society.

In this regard, Mitchel de S.-O-L’E. Lasser (2009) has offered an interesting perspective to further understand the political context of the ‘common law’ and ‘civil law’ traditions and to explain the difference in the judicial discourse. While at a first glance there is a visible difference between the decision of the US Supreme Court (usually supported by complete reasoning) and that of the French Cour de cassation (only containing simple syllogism of the application of a certain statutory rule), both courts can in practice function well in its society.

This difference can further be explained in the divergence in emphasis, between the discursive element of a court decision in US on the one hand, and the credibility of judicial apparatus in France on the other. At the end, both elements will constitute court legitimacy. Other than usually suggested, simple syllogism in the court decision in a ‘civil law’ country does not necessarily show the weakness in its societal representativeness, but it must be understood in its whole iterative process, in which a court decision consists of a link between the reasonableness of a statutory provision on a certain matter, comments on it, and relevant court decisions on that matter.

And how about the Indonesian Supreme Court (Mahkamah Agung)?

This question needs to be asked, given the current debate that is often stalled on an assessment of the limitations of the ‘civil law’ tradition, and not accompanied by – to my limited understanding – a further explanation on its political context. In this case, the comparative perspective used by Lasser, as mentioned earlier, would have actually been very helpful in further clarifying the continuing debate on the discrepancy between ‘common law’ and ‘civil law’ with regard to the judicial discourse in Indonesia.

If we further observe the development of the judicial powers in Indonesia, the view that the ‘civil law’ tradition would limit the argument of the judges is not entirely accurate – as the role of legislature in France may perhaps differ from its counterpart in Indonesia. And if we compare it with the judicial practice in France, or in the Netherlands, it will show that, other than their French or Dutch colleagues, the Indonesian judges do not always refer to and departing from a certain legal rule (as characterized as a form of simple syllogism).

Instead, after the decline of the rule of law in the Guided Democracy period, the very essence role of ‘source of law’ in the judicial discourse seems to fall into decay. Increasing role of the executive branch and the dysfunction of the legislature, combined with the anti-colonial tendency, has placed the judiciary in the difficult position to maintain the rule of law.

And what did the judiciary then do? The judiciary has attempted to create its own ‘source of legitimacy’ (due to the dysfunction of the legislature) by relying to the bureaucratic agenda (as it can be deemed as the powerful political source in the country).

In his book on the institutional collapse of the Indonesian Supreme Court (2005), Pompe wrote among other about the widespread use of the Regulations of the Supreme Court (PERMA) and the Circular Letters of the Supreme Court (SEMA) in the modern Indonesia.

One of earliest example of such instruments – and not less important one – was SEMA no. 3/1963 on ‘The Idea to Assume the Civil Code (BW) Not as An Act’. It is perhaps worthy of note that the Indonesian translation of the Dutch East Indies Civil Code (BW) has never been published officially, despite of a constitutional provision that has stipulated from the very beginning of the republic that all institutions and regulations that exist at that time shall continue into force. Interestingly, this SEMA no. 3/1963 exactly stipulates the invalidity of particular articles of BW – which has, as said, never been officially published.

SEMA no. 3/1963

“Given the crime, that Burgerlijk Wetboek is deliberately set by the Dutch colonizers as a mere imitation of Burgerlijk Wetboek in the Netherlands and again, for the first applied for the Dutch people in Indonesia, there is then a question, whether in the atmosphere of Indonesia Merdeka that releases itself from the Dutch colonial rule, it is still in place to regard Burgerlijk Wetboek in parallel to a law which officially came into effect in Indonesia.

In other words: whether this Burgerlijk Wetboek with its colonial nature, deserves to be formally revoked first in Indonesia to halt its statutory force.

Regarding this, there was an idea to assume Burgerlijk Wetboek not as a law, but rather as a document that simply describes a grouping of unwritten law.

This new idea was put forward by Minister of Justice, Sahardjo, SH. at a board meeting of Drafting Agency of the National Law Development Institute in May 1962.

This idea is very appealing, because the Powerholders, especially the judges, will then have more flexibility to exclude some Articles of Burgerlijk Wetboek that are incompatible with the Indonesia’s independence period.

This idea is offered by the Chairman of the Supreme Court in October 1962 to the general public in the Law section of the Indonesian Science Congress Assembly or M.I.P.I. and there it has been approved unanimously by the participants.

Thereafter, there is a lot of voices from the lawyers in Indonesia, which also approves the idea.

As a consequence of this idea, the Supreme Court considers, among others, the following articles of the Burgerlijk Wetboek no longer valid: […]”

It was striking that the Indonesian Supreme Court (MA), by declaring the invalidity of a number of articles only (not all of it), has actually affirmed the validity of the Burgerlijk Wetboek. In other words, MA took a different stance than the idea of Ministry of Justice at that time.

MA’s vision at the time can further be found in Case no. 105K/Sip/1968 (Lim Bet Nio vs. Oey Robby Oen Bie) that has also been discussed by Pompe in his book. The decision of MA in cassation was not interesting at all, as it only states that the cassation appeal is related to the issue of facts, and should therefore be turned down. However, the discourse of the lower courts was on the contrary. Pompe wrote that one of the appeal court judges who handled the case (Asikin Kusumah Atmadja) had “declared invalidity of SEMA”, “accepted the argument of the applicant that such letters are no more than a ‘scribble’”, and “denied that such letters have a binding force”.

While it might be true that the appeal court judge has improved the argument of the first instance court’s judgment (and perhaps this has been told by Asikin Kusumah Atmadja to Pompe), but the related decision, i.e. the decision of High Court Djakarta no. 249/1967 P.T. Perdata, did actually not say anything about the validity of the circular letter.

However, the High Court has expressly stated in its consideration that the enactment of a legislation that had already existed before the independence (including BW, I assume), was adopted by the Government, using its legislative authority, through the Government Regulation no. 2, dd. 10 October 1945. To sum up, the abolishment of the existing regulation is justified, according to the High Court, only is a provision (or provisions) of the regulation is (are) on the contrary to the constitution.

Decision no. 249/1967 P.T. Perdata

“Whereas [the issuance of] Regulation no. 2 means stipulating that legal provisions applied before 17th of August 1945, shall remain in effect, but if those provisions are contrary to the Constitution of ’45, then for the sake of law it shall be [deemed] no longer valid, although not repealed officially;”

It was, in my opinion, a very subtle and critical respond to a generalization offered by Minister of Justice. Furthermore, by touching upon the bad performance of the legislature, the High Court could exactly describe the unfortunate situation at moment and promoted the recognition of judicial review. If the government desired the removal of the colonial law, without even publishing it (as already stipulated by themselves), then judicial review may apparently be a fairly feasible solution – meaning the legality of a rule will be then decided case by case.

Decision no. 249/1967 P.T. Perdata

“Whereas by the above-mentioned reasons, without having the related authority [of judicial review], the judge will not be able to carry out its task properly in formulating National Law in accordance with the living norms in the society, especially if one bears in mind that the legislative power remains so sluggish in the work to replace the regulations that already existed on 17 of August 1945, and in contrary to the Constitution of ‘45 (c.f. the opinion of Drs. Susan Tirtoprodjo, SH, in the opening speech of the National Law Seminar 1963);”

What was the case itself about? No less interesting, actually. The case is related to the use of ‘onheelbare tweespalt’ (unhealable breach) as one of the grounds for divorce. This reason was not listed as one of the condition for divorce according to BW, while the first instance judges, as well as the appeal judges, had recognized the actual fact in the case that could justify a deviation from the statutory provision. Interestingly, instead of interpreting the statutory provision, or refering to factual condition in the related case, the judges had more a tendency to respond to the more general debate on the validity of BW. It was further worthy of note that the lawmaker in the Netherlands precisely adopts the similar ground in the Dutch BW in 1971.

Judicial review itself – in terms of a constitutional review – was only recognized officially by the third amendment of the 1945 Constitution in 2001. The context was quite different from its original reason and it is the Constitutional Court (MK), not MA, who is finally entrusted with that authority.

As we can see above, the possibility to enact PERMA and SEMA has provided MA not only with the judicial power, but also with the law-making power. At first glance, its power seems to be broaden, as the scope of the instruments are practically unlimited. But, from the case in 1963 as described above, in which the substance was likely more initiated by Ministry of Justice, the most determinant factor lies perhaps on how such a regulation, or a letter, is precisely established in practice.

This situation seems to remain until now. For example, one can find the regulations on the corporate responsibility (PERMA no. 13/2016), on the prohibition of a revision against pre-trial judgments (PERMA no. 4/2016), and on the mediation (PERMA no. 1/2016); or the circular letters on the limitation of the revision requests in a criminal case (no. 7/2014) and on the formulation of laws (no. 7/2012). The last-mentioned letter covers even a number topics. It includes the answers of the Supreme Court’s Chambers on several substantive legal matters they have handled, and the letter is being annually updated.

From this perspective, it can be seen how the use of the judicial authority in Indonesia is influenced by the power relations between different state actors and neatly hidden behind the political scenes. This also indicates that the locus of judicial discourse has already shifted from court decisions into such regulatory and supervisory instruments, while the substance may perhaps still involve concrete and actual cases. Consequently, there is also a strict separation between normative (in the quasi-regulation) and factual-based (in the court decision) elements, in which the power of ‘source of law’ will exactly be diminished.


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