TheJakartaPost
Please Update your browser
Your browser is out of date, and may not be compatible with our website. A list of the most popular web browsers can be found below.
Just click on the icons to get to the download page.
Contempt of court as the judge's shield in Indonesian justice system
Indonesiaâs criminal justice system historically came from the Netherlands, which previously adopted the French criminal justice system (Code de Penal)
Change Size
I
ndonesia's criminal justice system historically came from the Netherlands, which previously adopted the French criminal justice system (Code de Penal). However, the development of the legal community has been so advanced that it is inevitable that the common law and civil law systems have influenced one another.
This also happens to the Criminal Law and Criminal Procedural Law, which are influenced by the legal principles of common law, especially in the criminal justice system.
The continental criminal justice system (civil law) which is known as the 'interrogation by magistrate' has been influenced by the Anglo-Saxon criminal justice system (common law) which is known as 'the battle of learned counsel' between the advocate and prosecutor.
In the continental criminal justice system (civil law) the judge is active, while in the Anglo-Saxon criminal justice system (common law) the judge is passive, or has a function to analyze and assess the legal arguments, evidence and facts presented by the advocate and prosecutor.
As a result of this passivity, a free judge needs a shield for his protection. One of the shields is the concept of contempt of court, which was previously not recognized in the continental criminal justice system (civil law).
In the continental criminal justice system, the judge is given a series of authorities to warn or dismiss any party who disturbs or disrupts the course and order of a criminal proceeding.
In the New Order era, minister of justice, together with chief justice of the Supreme Court, supervised the advocate's behavior and could disbar an advocate from his practice through the Joint Decrees of the Chief Justice of the Supreme Court of the Republic of Indonesia and the Minister of Justice (Joint Decrees No. KMA/005/SKB/VII/1987 and No. M.03-PR.08.05 of 1987 on Procedures for Supervision, Action, and Self Defense of Legal Counsel), if his behavior disrupted the course and order of a court proceeding.
Furthermore, in order to apply the joint decrees accordingly, the Supreme Court issued the Circular of the Supreme Court of the Republic of Indonesia No. 8/1987 on Elucidation and Guidelines of the Joint Decree of the Chief Justice of the Supreme Court of the Republic of Indonesia and the Minister of Justice dated July 6, 1987, Joint Decrees No. KMA/005/SKB/VII/1987 and No. M.03-PR.08.05 of 1987.
This shield of the judge has recently been disrupted through news items in print media and TV talk-shows, which seem to hold case presentations by debating ongoing cases, which should not be done as it will disrupt the freedom (independence) and impartiality of the judge in deciding a criminal case.
___________________
The people's legal culture should be improved, so that the trial and court's judgment in the future will be respected
It is not strange if in developed countries advocates want their client not to speak too much and not to expose their case, and the same goes for prosecutors, because what is said and submitted will be considered in a court proceeding, and not outside the court.
The legal culture of respecting a court proceeding is very high, such as in England, so a criminal proceeding cannot be covered by the media, in order to maintain the authority of the court.
Juries in the United States are consigned for a certain period of time to a secret and sterilized location, and isolated from the media, so their neutrality is maintained and their decision is not biased due to public opinion or direct and indirect information.
Judge's or jury's prejudice would be detrimental to the defendant, caused by media reports before and during the trial. The Contempt of Court rule comes from the doctrine of pure streams of justice in order to protect the integrity of the judge and jury against prejudice.
A prominent English judge, Lord Hardwicke, said:
'There are three different sorts of contempt. One kind of contempt is scandalizing the Court itself. There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing mankind against persons before the cause is heard.
There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.'
In addition to maintaining the judge's neutrality, the contempt of court rule in England through the Contempt of Court Act 1981 is also meant to protect the judge's honor, so any act, word, and writing that does not respect the judge from the parties in a case, law enforcers, media, or the judge himself can be categorized as contempt of court.
However, what we see now in Indonesia is that there are news and open talk-shows that can be categorized as contempt of court because they disrupt or obstruct the legal process in court.
In addition, there are also headlines in newspapers that are so prominent and insinuating that they will most likely influence the course of the legal process and discovery of justice.
The more the news is publicized close to the day and date of the trial, the more the trial will be disrupted. The offender of contempt of court can be sentenced according to the Contempt of Court Act 1981 if the prosecutor can prove that the news editor really intends to create prejudice.
Media in England are usually careful in their report of a trial because the media there respect and appreciate the judge's integrity, intellectuality, loyalty and honesty.
Basically, contempt of court is the extended meaning of an act that is deemed to insult, prevent, or obstruct the court from conducting a trial or deemed to be an act of reducing the authority or dignity of the court or judge.
Such an act is committed intentionally to prevent or waste a trial, not to obey a valid order from the court, or not to fulfill a court's judgment. In short, it violates or debases the court.
The Contempt of Court rule in the Criminal Code (KUHP) and Criminal Code Procedures (KUHAP) is one thing, but law enforcement, such as Indonesia's leaders and elites respecting the court, trial and courts' judgment, is another thing.
If, in the future, contempt of court is stipulated in the new KUHP and KUHAP, there will be many civil and criminal cases in Indonesia which cannot be executed although they have become final and binding (in kracht van gewijsde), but can eventually be prosecuted in court because of the threat of sanction against the offender of contempt of court, either a fine (civil contempt of court) or imprisonment (criminal contempt of court).
Discussing, debating and interrogating parties involved in a criminal case that will be or is currently examined in court in front of the public obviously contains the element of contempt of court.
And it can definitely disrupt the legal process in court because it insults, debases, ignores and obstructs the function, dignity, freedom and impartiality of the judge (court), either directly (direct contempt of court) or indirectly (indirect contempt of court).
Thus, the people's legal culture should be improved, so that the trial and court's judgment in the future will be respected by everyone without exception, and be in line with the principle of equality before the law.
The writer, a lecturer at the Faculty of Law, Pelita Harapan University, is chairman of the Indonesian Advocates Association (PERADIN).
