Q

uo vadis is a Latin phrase meaning “Where are you going?” This question, according to Christian tradition, was put to Saint Peter by Jesus as Peter was fleeing from crucifixion in Rome. Jesus answered: “I am going to Rome to be crucified again”, which prompted Saint Peter to continue his ministry and return to Rome, where later on he was crucified as a martyr.

This phrase can be used to question the status of law enforcement in Indonesia’s reform era. With each passing day, law enforcement here becomes more and more vague.

Law enforcement does not have clear direction, let alone has it achieved the aspirations of a constitutional state.

We can see plainly that court decisions that have become final and binding can still be questioned and contested by various means and for various reasons, by parties in the case, especially those who cannot accept defeat, and by lawyers as legal counselors of the losing parties, in both civil and criminal cases.

As a result, all legal actions by justice seekers are meaningless because they do not lead to legal certainty.

In fact, legal certainty is an important element of a constitutional state, which is guaranteed in the 1945 Constitution.

We see how the baby milk case ended up with a final Supreme Court verdict whose execution was rejected because it violated ethics.

In fact, the decision is correct in order to protect our babies and children as the next generation who need to be saved from drinking baby milk that is not free from prohibited substances.

Without the announcement of the brands that do not meet health and safety standards, the public, especially mothers, cannot distinguish between brands that are categorized as healthy and safe and those that are not.

The producers’ and the losing party’s decision to reject the execution of the verdict should not have happened because it violates the principle of a constitutional state which guarantees legal certainty.

In another case, that of Trisakti University, which has been going on for more than 10 years, execution cannot be done because it is opposed by the losing party which considers the decision unenforceable because supposedly, the decision is general when in fact there has been a final and binding decision.

Once again this shows the true color of law enforcement in the reform era, where it is difficult to say that law supremacy does exist.

The losing party and their legal counselors should face reality and not try to oppose the Supreme Court decision that has become final and binding, in order to respect the law and the judiciary.

Lawyers have to educate the public and their clients. Justice delayed is justice denied.

People cannot go through continuous proceedings without end where there is no legal certainty. Whether we like it or not, a final decision is a consequence of a court proceeding.

If they had not wanted to go through a court proceeding, they should have chosen negotiation, mediation and amicable settlement, i.e., a win-win solution. A court proceeding means we must be prepared to face a defeat or a victory.

Another controversial case is the Sisminbakum (the online administration system at the Law and Human Rights Ministry), which has from the start created had its supporters and detractors.

Whether or not this case falls within the domain of the Corruption Law is still being debated by
the public.

Whether law enforcers (the Attorney General’s Office) will continue or stop the case has also become a prolonged polemic up to this moment.

Whether it is fairer if it is continued or stopped should be reviewed further. In criminal law, there is an adage: “It is better to acquit a thousand guilty persons than send one innocent person to prison”. Because of this, law enforcers must be careful not to punish an innocent man.

Obviously, anticorruption activists want the Sisminbakum case to be continued, but law enforcers and legal experts may have different opinion.

Certainly the Sisminbakum case befalling former director general for legal administration at the ministry, Romli Atmasasmita, has become final and binding and he has been acquitted of all accusations.

This can no longer be disputed because a court decision that has become final and binding must be respected and enforced for the sake of legal certainty.

The Indonesian Criminal Law Procedure Code (KUHAP) and the criminal justice system has stipulated that a “Motion to Reconsider” is a convicted person’s right, and not the law enforcer and prosecutor’s right.

The right of the convicted person is based on the spirit to protect human rights.

The rights of an individual or a suspect/defendant/convicted person, who is engaged in a legal case, must be protected.

Thus, the convicted person, and not the state, i.e., the prosecutor, is given a chance and the ultimate right to file a motion to reconsider.

Some precedents where prosecutors filed a motion to reconsider for criminal cases that are final and binding are not justifiable in the case of Romli Atmasasmita.

Such mistake should not be repeated to justify the motion to reconsider by the prosecutors, because it will violate the purpose and objective of the formulation and legislation of the KUHAP.

The KUHAP was established as the basis to protect the rights of individuals, and not the state.

Although the state, i.e., law enforcers are given the authority to arrest, detain and punish a person (the perpetrator of a criminal act), such authority must be performed carefully and based on evidence and according to due process of law.

Moreover, a motion to reconsider is an extraordinary legal remedy that should not be given to just any convicted person. The requirements are water tight and it is not the 4th level of court.

Finally, in law enforcement, after all legal remedies, legal process and due process of law have been performed, the end result, either a victory or a defeat, must be accepted gracefully and there should not be any action outside the existing legal process.

In addition, the time, effort and money spent and the agony experienced by justice seekers must come to an end.

We should respect and comply with the law and court decisions that are final and binding if we want to achieve the noble aspiration of a constitutional state.

The writer is chairman of Peradin (Indonesian Advocates Association).