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The trap of legal formalities and legal rhetoric

Had enough of legal rhetoric? The case involving the Corruption Eradication Commission (KPK) deputies seems to be the culminating point of the escalating distrust toward our legal system

Mohamad Mova, Al `Afghani (The Jakarta Post)
Tue, November 24, 2009

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The trap of legal formalities and legal rhetoric

H

ad enough of legal rhetoric? The case involving the Corruption Eradication Commission (KPK) deputies seems to be the culminating point of the escalating distrust toward our legal system.

It appears, however, the word trust has no meaning for those in power. They keep reiterating the same old legal jargon and quoting legal provisions over again. Although the public eye are becoming disinterested.

Indeed, the law is an independent and a self-referential system. Within its system, a law is valid if it is conferred by higher rules or affirmed by rules at the same level.

"A sense of justice", "common sense", or "conscience" is considered irrelevant by some lawyers because these concepts exist outside the positive law.

We heard the news of shoe-shining boys aged 10-16 years old, detained in state penitentiary for tossing coins at the airport. Ask law enforcers about it and they will refer you to Article 303 of the Criminal Code on gambling - not "conscience".

The media also recently reported how an old woman was punished because she stole a few cacao fruits in Central Java.

We heard the news about the lady who complained about the health service she received. Her doctors and the police initially claimed for defamation under ordinary criminal code but the prosecutors added the Law on Information and Electronic Transaction, which renders her a few weeks in jail. The superiors of the prosecutors at that time defended her subordinates and suggest that such "creativity" and responsiveness should not have been criticized, but appreciated.

The presidential spokesman at that time reacted and said law enforcers should have paid attention to the people's "sense of justice". Well, within this positivistic construct, a "sense of justice" is irrelevant.

Had this been traditional society, without any sophisticated legal institution, the parties would have sat together to settle their case over the campfire with gifts or offerings to deities in order to restore the cosmic balance.

But of course, modern societies have no time for these rituals. Instead, we opt to create hundreds of thousands of regulations and settle our cases in a "civilized" way with court proceedings. The law was initially created to serve justice. But now, it seems we have been alienated from our own creation - the modern law, disconnecting us from justice.

The law works pretty much like spiritualism or religion - it has some mythological and symbolic elements. We may ridicule traditional societies for their rituals, but we are not much different from them in terms of symbolism.

Consider this. The law has a constitution, religion has scripture. Religion has a shrine, the law has a court. Religion has clerics and shamans, the law has judges - and indeed, both wear robes and people are required to stand up as they enter their rooms as a sign of respect. A trial is like a ritual. The judges sit at benches as priests lead a sermon.

Religion tells us about heaven and so does the law.

Open the Constitution and we shall find "paradise": prosperity, welfare, world peace, freedom, equality and justice for all. Read a court's decision and it says: "For the sake of justice based on the one supreme God". Judges, prosecutors, the police and lawyers work to interpret the law, as much as clerics work to interpret holy text. We have "faith" in the law because it promises to deliver these heavenly concepts.

One member of the House of Representative's Commission III states the law has nothing to do with common sense. This is incorrect. History has proven this for so long. The Nazi law, which sought to exterminate Jewish people, the apartheid laws, the laws which forbade women to vote, the laws which regulated the sale and purchase of slaves and many other laws were "legal" during their time. But because they contradicted common sense and justice, they were toppled.

The law, albeit independent and self-referential, is also a communicative system. It connects ideas of common sense, justice, equality and conscience among others, translating it into its language.

It is not easy to do this as the more complex the law, the less transparent and accessible it becomes for lay people. Indeed, with the rise of legal complexities, there is the danger of being lost in translation. The effect is what we call the "miscarriage" of justice. Thus, enforcing the law requires wit, strong morality and wisdom.

As such, law enforcers quoting legal jargon without any connection to law's ideals are like shamans citing spells, only to discover they have lost their magical powers, because people they talk to find it difficult to trust what they say. There is a risk that people will no longer be citizens when their faith in the law erodes. The risk is that they will slowly turn into a mob.

The writer is the founder of Center for Law Information.

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