We have been so occupied with the KPK criminalization saga that we have paid little attention to one crucial player in the criminal justice system, the courts.
Most of us seem to forget that however corrupt the police and prosecutors could be, in the end it is the court that decides all cases processed by both institutions.
It is, so to speak, the last fortress of justice — although this title is often narrowly attributed to the Supreme Court alone.
But look at the fortress now. In November, Purwokerto District Court sentenced an elderly person to a suspended 45-day imprisonment for stealing three cacao pods. Is it a just decision?
Comparing several punishments imposed by district courts across Indonesia, we can see how the courts define “justice”.
On Nov. 11, 2009, a Serang resident in Banten was punished with seven months in jail for a proven theft of two ducks.
His compatriot, a maid in Tanjung Pinang, Bangka Belitung, was condemned to a six-month imprisonment by the local district court on July 21, 2009, for an attempt to steal her boss’ nightdress.
Mathematically speaking, three cacao pods are worth Rp 1,500, two ducks Rp 40,000 and the criminal attempt causes zero loss. The cacao and ducks cases’ sentences would seem reasonable to compare, but not that of the maid.
The judges deciding those cases could easily hide behind the “judge’s belief” principle that has been adopted by our criminal courts since colonial times.
This principle gives absolute power to judges to determine whether an accused is guilty or not based on their belief regardless of the strength of evidence. The rationale is that the courts of criminal cases are to find the so-called essential truth which, unlike formal truth to be sought in civil cases, is not absolutely bound to material evidence.
Apparently this principle is held firmly by judges, although deciding if someone is guilty is one thing, and imposing the extent of the punishment is another.
In sentencing, judges are obliged to follow sentence limits stipulated in the Criminal Code and other criminal laws, where the former follows maximum periods of incarceration while the latter mostly use minimum and maximum.
Take the law on corruption as an example. Offenders of Article 12 of this law could be jailed between four to 20 years, and it is the judge’s discretion to pull the number.
Our Criminal Code, however, still uses the maximum incarceration regime, and a convicted criminal can expect a judge to give him zero punishment in verdict.
Hence, given the tremendous power of sentencing with mere belief, judges are delegated the power of God over an offender’s fate.
They can turn somebody’s happy life into a nightmare or conversely clean a corruptor’s name by their verdicts, again based on their belief.
Belief seemed to work well when a panel of Corruption Court judges on Sept. 9, 2009, sentenced former Regional Manager of State Gas Company (PGN) East Java II Trijono to four years of imprisonment for receiving Rp 1.3 billion in bribes.
But wait. Belief is also behind a verdict of a six-year incarceration by Jayapura District Court in July 2006 to a defendant who had stolen two tanks of police tear gas.
Four years for taking a grand bribe and six years for an ordinary theft! It would be grossly ridiculous to say that two tanks of tear gas are worth more than Rp 1.3 billion.
To better illustrate how courts define justice using belief, take a look at other two courts’ decisions made this year. Kupang District Court on Aug. 4, imposed three years of imprisonment on Antonious Poukama and Martinus Harein for stealing a cell phone and a ring with violence.
Three months later the District Court of Tapak Tuan, Aceh province, awarded less than two years to five corruptors of a breakwater construction project that causes Rp 1.2 billion in state losses.
When you give three years for a petty street crime and one year and two months for a widely destructive corruption, what message are you sending? First, that the law only applies to little people who commit little crimes.
In the words of Jonathan Swift (1667-1745), “laws are like cobwebs, which may catch small flies, but let wasps and hornets break through”.
Second, judges have their own definition of “justice” and “fairness”, which might be extremely different from that of average people.
Nevertheless all this imperfection leaves us room for judicial transformation. There are at least three things can be done to mend the dented fortress.
First, criminal courts should make all their verdicts available for the public, as transparency is indispensable for the making of due process of law accountable.
The Constitutional Court has given the model with their website www.mahkamahkonstitusi.go.id, in which society can access data about the court’s schedules, proceeding transcripts and final decisions.
Although the Supreme Court has its own website displaying some of its rulings, so far it does not cover rulings of lower courts.
It is the time to display all criminal verdicts made by district courts, appellate courts and certainly the Supreme Court.
Second, the parliament and government should start pondering a bill on sentencing. Once the bill becomes law, judges will have to follow the procedural rules and guidelines when sentencing convicted criminals, not merely relying on their belief or intuition.
Third, there should be an online database containing the curriculum vitae of all judges so that the public can scrutinize their personal profiles and past verdicts.
This database could be made by the government, Supreme Court or any party who wants to monitor those honorable judges. Maximum publication about their past will likely to deter judges from abusing their judicial power.
The writer is a graduate of the Faculty of Law, University of Jember.
