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Jakarta Post

Should the law serve humans, or should humans serve the law?

  • Hery Firmansyah and Adam Fenton

    The Jakarta Post

Yogyakarta/Darwin   /   Thu, April 30, 2015   /  06:35 am

A classic story from the life of Greek philosopher Socrates, who lived thousands of years ago, serves as a lesson on how the law should be applied.

Socrates was once brought before a people'€™s court, known as the Court of Heliast, and sentenced to death. '€œPeople must be steadfast in the face of death and hold onto hope that in the afterlife they will receive the greatest of rewards,'€ he said. '€œI will not beg for mercy, but I will give enlightenment to you about the duty of a judge and strive to convince you to do your duty with honor.'€

We are frequently disturbed by reports about legal cases involving underprivileged people.

The case of Ibu Asyani, who was accused of stealing a few pieces of wood, is the latest.

Then there was the case of Mbok Mina, who was prosecuted for stealing three cocoa pods worth around Rp 15,000 (US$1.16).

The impression from these cases is that the law is a sharp sword when it is aimed at the lower classes, and rather blunt when aimed at the privileged and rich.

The law should not only create justice, it should also give legal certainty and provide a benefit to the community.

Followers of a utilitarian philosophy emphasize that the law should facilitate the ultimate goal of the greatest happiness for the greatest number.

However, achieving that goal is not easy. Part of the concept of an integrated criminal justice system is that each criminal law institution (the police, prosecutors, judges, lawyers and correctional officers) has its role to play within an arrangement known as functional differentiation.

Therefore, it is not accurate to evaluate the entire system based solely on the end results of a few individual cases.
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Police and prosecutors are in a legal vacuum with regard to the cessation of legal proceedings [...]


For observers, even those who study the law, it is not easy to understand or accept that a case of the theft of a piece of clothing worth Rp 50,000, or a bar of soap, can be brought before the courts.

There appears a kind of absurdity in the application of legal facilities and mechanisms, and all the costs associated with that, to offenses that involve such trivial amounts.

Many of those who work in law enforcement seem blinkered in their approach to the law and apply it in a strict, robotic way. Law enforcement officers, however, argue that they have no choice but to apply the law as it is written.

Where the facts of a case fulfill the elements of an offence as they are set out in the criminal code, then the law must be applied.

A dilemma arises where law enforcers allow or forgive the commission of offences, even minor ones.

In bureaucracy we know there is a hierarchy and a chain of  command. Police and prosecutors are in a legal vacuum with regard to the cessation of legal proceedings, as they must defer to the chain of command and obtain agreement and approval from their superiors.

This creates a dilemma for law enforcement officers in determining the level of strictness with which they ought to apply the law.

Therefore, in most cases the legal process will continue to its conclusion. And in many cases the result will be a suspended sentence '€” a prison sentence that hangs over the head of the offender for a period specified by the judge, and if the person reoffends the sentence will be applied.

This approach addresses, in some way, those who demand justice and an equitable punishment for offenders.

In Japan, the authority to cease legal proceedings resides with prosecutors where certain conditions are met, for example where the offender is over 75 years old.

The Asia Foundation in cooperation with USAID has developed the Educating and Equipping Tomorrow'€™s Justice Reformers program, which seeks to strengthen legal institutions, improve legal education and drive law reform.

One of the key concepts is restorative justice; however, it seems that the idea has not gained much traction within Indonesian legal circles.

Faced with the reality of Indonesia'€™s legal system, more cases like that of Asyani may emerge in the future.

But does our legal system exist to serve humans, or do humans exist to serve the law? Perhaps it is time to review and improve the performance of Indonesia'€™s criminal justice system.
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Hery Firmansyah lectures in criminal law at Gadjah Mada University in Yogyakarta. Adam Fenton is researching Indonesian legislative and law enforcement responses to terrorism for his PhD at the Faculty of Law, Charles Darwin University in Darwin, Australia.

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