When Law Loses Its Legitimacy and Sense of Justice

By: Marulak Pardede

JurnalPost.com - Recent public discourse on law enforcement has been dominated by skepticism, as society feels that the legal system is drifting further away from the sense of justice, particularly for the underprivileged, the poor, and the marginalized. Legal mafias, oligarchs, and corruptors in this country are attempting to diminish the function and role of the Corruption Eradication Commission (KPK), the Financial Transaction Reports and Analysis Center (PPATK), the Supreme Court, the National Police, and all their credible supporters. They consistently seek every possible way to curtail the KPK's authority. In simpler terms, their efforts have become a deliberate attempt to weaken the KPK.

In Indonesia's law enforcement efforts, two components play a crucial role: the Criminal Procedure Code (KUHAP) and the Corruption Eradication Commission (KPK). The KUHAP is the legislation governing law enforcement procedures, while the KPK is an independent body tasked with eradicating corruption. However, there has recently been fierce debate regarding the effectiveness and efficiency of the KUHAP in handling corruption cases, as well as the roles of the Police, the Attorney General's Office, judges, advocates, and the KPK, and their implications for law enforcement in this country.

The removal or elimination of investigation provisions, leaving only prosecution provisions, carries legal consequences for all law enforcement institutions. The loss of investigators from law enforcement agencies would also result in the loss of several powers. Investigators have the authority to order travel bans, wiretapping, bank account freezing, and conduct sting operations (OTT). Because the investigation phase is removed, the KPK would no longer be permitted to perform these actions. During the investigation phase, investigators collect evidence to elevate a case to the prosecution stage. If two pieces of evidence are gathered, a case can proceed from investigation to prosecution. However, if the investigation phase is eliminated and it moves directly to prosecution, the KPK's prosecution process cannot function. Without investigations, the KPK and other law enforcement agencies cannot trace, request information, or collect the evidence necessary to name a suspect in a case.

The KUHAP applies to criminal acts regulated in the Criminal Code (KUHP). This law also applies to criminal acts regulated in laws outside the KUHP, unless those laws specify otherwise. This provision could negate the special procedural laws for handling corruption cases (as regulated in the KPK Law) currently used by the KPK.

The termination of a case prosecution regulates that a public prosecutor may submit a case to a Preliminary Examination Judge to decide whether it is appropriate to proceed to court. Based on this provision, corruption cases handled by the KPK could be terminated by a Preliminary Examination Judge. This contradicts the spirit of eradicating extraordinary crimes as mandated by the KPK Law. Under the KPK Law, the KPK cannot terminate investigations or prosecutions.

The KPK lacks the authority to extend detention during the prosecution stage beyond 5 × 24 hours. The KPK could be considered to lack authority because the law only mentions the head of the district attorney's office for detentions by the district attorney; the head of the high prosecutor's office for detentions by the high prosecutor; or the Director of Prosecution at the Attorney General's Office for detentions by the Attorney General's Office.

The detention period for suspects is shorter. The detention period at the investigation level is only 5 days and can be extended up to 30 days. Compare this to the 20-day detention period that can be extended by the authorized public prosecutor for a maximum of 40 days. A shorter investigation detention period can disrupt the investigation process. This is especially true in corruption cases, where the number of witnesses is far greater than in general criminal cases. The suspension of detention carried out by investigators can be requested by the suspect or defendant. Consequently, if the suspect or defendant requests it, the Preliminary Examination Judge can suspend the detention carried out by the KPK. Seizures must be authorized by the Preliminary Examination Judge, who can refuse to grant seizure approval, and seized items must be immediately returned to the owner.

Wiretapping must receive permission from the Preliminary Examination Judge. Wiretapping of conversations can only be conducted if it receives approval from a judge. If the judge does not agree, the KPK cannot conduct wiretapping. Wiretapping in urgent situations can be canceled by a judge. In urgent circumstances, investigators can wiretap without a permit from the Preliminary Examination Judge. Other provisions state that if the Preliminary Examination Judge does not grant approval for wiretapping, the KPK's wiretapping can be stopped.

An acquittal cannot be appealed to the Supreme Court. A defendant or public prosecutor may file a cassation request to the Supreme Court, except in the case of an acquittal. Based on this provision, if a corruption case brought by the KPK results in an acquittal at the first or appellate level, it cannot be appealed to the Supreme Court. Supreme Court rulings cannot be heavier than those of the high court. Consequently, if a corruption case brought by the KPK receives a heavy sentence at the first or appellate court level, it is certain that the sentence will be lower if appealed to the Supreme Court. This creates a loophole for corruptors to receive sentence reductions if the process continues to the cassation level. Provisions for reverse burden of proof are not regulated. The KUHAP does not accommodate the reversal of the burden of proof for corruption and money laundering (TPPU) crimes. Under the current Money Laundering Law, there is a full reverse burden of proof, where a person must explain the origin of their wealth.

LAW LOSES ITS LEGITIMACY

Based on the points above, social phenomena show that the current application of law has not reached an adequate level of quality. The measure of a great law enforcement officer is not merely their compliance in executing regulations and laws, but in making breakthroughs through improvisation, creativity, and innovation. The militancy of the late Supreme Court Justice Artidjo Alkostar several years ago became a very interesting topic in relation to the firm enforcement of the law against corruptors. A renowned philosopher, Arthur Kaufmann, in his work Die ontologische Begründung des Rechts, stated that between legal certainty (legalistic-formal-juridical) and justice (pragmatic-juridical), both are at the ends of a rope; we must find the middle ground between those two ends.

In other words, we must find a compromise between justice (highly upheld by proponents of rationalism) on one hand, and harmony and equality (the foundation for proponents of positivism) on the other. These two components are often difficult to reconcile. We can create rules that are so good, serving legal certainty and efficiency, but there will always be events that cannot be included in those rules, or that are less fair if resolved using those rules. Following this line of thought, it is very dangerous if a leader (especially a head of state) in this country takes policies that are not based on law.

What would the world say if a leader, to overcome a problem, takes the initiative to be creative and innovative in making a risky breakthrough and moves outside the corridors of the law? Such a thing does not exist in any country in the world. It is unimaginable for a leader to take policies without a legal basis. Every country that calls itself a state based on law must ensure that every action and policy taken is always based on law. The Republic of Indonesia declares itself a state based on law (rechtsstaat), not based on mere power (machtsstaat).

The emerging debate regarding the different interpretations of the provisions of these two laws seems to stem from the conflict of thought between rationalism vs. idealism, positivism vs. pragmatism/realism; legal certainty vs. justice, which has been ongoing since ancient times, as long as human civilization has existed on this earth. Philosophers Descartes, Spinoza, and Leibniz argued that in philosophy, the term rationalism is usually reserved for later discoveries in schools based on natural and exact sciences. In the view of legal positivism, one may believe in a higher law of justice, but one should not mix that belief into the implementation of the law, meaning as long as that person wants to work according to science.

According to the school of legal positivism, a legal expert should not be oriented toward natural law or a higher law, but must limit themselves to positive law or the prevailing law. The task of the state is not a way of thinking about theory, but must be based on the prevailing legislation. Law is a system of rules that are related to one another organically, in a pyramid of norms formed hierarchically. Outside of that, there is no law. According to Hans Kelsen (1881–1973) in his pure theory of law (Reine Rechtslehre), "pure" here means that methodically (by using the method of normative science), law is purified from all sorts of non-juridical elements.

This is different from the rationalist view, which holds that the interpretation of the application of positive law must be considered based on the values of a legal rule, whether the content of a regulation or material norm is in accordance with ideal law, the law that lives and develops in the reality of society (the living law) which is above positive law, or with values derived from culture.

In the school of positivism, legal experts in interpreting a law become trapped in an analytical legal positivism (analytischer Rechtspositivismus), where work with the law is alienated from the existing society, and the answer to a juridical problem is taken from a tool of understanding drawn from abstract precedents. Law is seen as a certainty established in the sources of law (law in the books). This is different from the school of realism (pragmatism/legal realism), where legal experts interpret a law by paying attention to the customs that live and develop in society (law in action), by putting forward the thought, "The law is what it does." Power speaks of right and wrong, while law speaks of good and bad.

In the concept of hylomorphism (hyle-morphe) regarding form and matter, it is emphasized that law consists of rules and justice. Form can change, but matter cannot change. Likewise with law, its form can change into criminal law, civil law, customary law, etc., but justice, which is the matter of law, cannot be changed. Law that does not contain justice is meaningless, because the keyword in law is not certainty, but justice. Many things are complained about by the public, which sometimes crystallize into a reactionary attitude and behavior that is very detrimental to the authority of the law. Anything that causes erosion of the authority of the law must clearly be prevented and ways to overcome it must be found, because if the law has lost its authority, it will affect broader aspects of life.

Public attention to the law leads to the judiciary as a pressure valve for all violations of the law, public order, and violations of public order. In addition, the judiciary is expected to act as the last resort, as the final place to seek truth and justice, so that the court is a body that functions to enforce the truth and to enforce justice.

If the authority of the law has recently declined, it is not contextual or sudden, but rather due to the impression and assumption that disgraceful cases have occurred for so long that it is feared they will cross the threshold of public tolerance and understanding. An assumption exists that law enforcement in political cases is influenced by extra-judicial forces, while non-political processes and cases are influenced by the temptation of material gain. Regardless of whether that assumption is true, it will affect the image, authority, and credibility of the law. The legal culture, which is the values, attitudes, and behavior of the community in legal life, is reflected through respect for legal institutions, which lately feels increasingly discouraging, even bordering on legal harassment. The democratic culture that is currently being developed by the authorities still needs to be adjusted to Indonesian culture.

Democracy as a foundation of a state based on law functions correctively, namely by criticizing the mistakes of the authorities in state practice. Democracy as a system must always be developed without ever stopping. It needs to be developed in accordance with Indonesian culture. The low level of legal awareness in Indonesia is not only held by the people, but also by the authorities, which is partly caused by the lack of certainty provided by the law; different treatment of citizens; and the weak commitment of the authorities in the implementation of the law. Differences in legal behavior are not only influenced by the law, but also by other factors.

The doubt, skepticism, and declining level of public trust in the law, which has almost reached a nadir, both toward the apparatus, the material, and the law enforcement institutions, are caused by the law often becoming a tool of power whose implementation is distorted in such a way that it contradicts the principles of democracy and justice as well as the equal rights of citizens before the law. The creation of a law is heavily influenced by political content; the law is used as a tool to legitimize the actions of the authorities. The emergence of doubt about the existence of the law is because justice, which is one of the main principles of the law, is not fulfilled. The principle of justice never changes. Justice is formulated by philosophers in different ways, but the goal is to achieve balance in its application, namely the balance between ideal values and the reality in which the law is operated.

Thus, in facing problems as heavy as any in this country, the actions and policies taken must always be based on the law. A very firm parable in law enforcement is, "Even if the sky falls, the law must still be upheld."

Hopefully.

Marulak Pardede, S.H., M.H., APU: is a Principal Researcher in the Field of Law, Center for Legal Research, Social Sciences and Humanities Research Organization, National Research and Innovation Agency (BRIN), residing in South Jakarta 12770.