The Chronicles of a Capitalist Lawyer: Legal Interpretation

Showing posts with label Legal Interpretation. Show all posts

Berhubung Putusan Praperadilan terhadap penetapan Budi Gunawan sebagai tersangka sudah bisa diakses di sini, saya perlu memperbaharui analisis yang saya buat sebelumnya di sini (dimana analisisnya dibuat berdasarkan ringkasan berita). Harus diakui, walaupun saya tidak sepenuhnya setuju dengan isi putusan Hakim Sarpin, ini tetap merupakan putusan yang menarik dan pertimbangannya tidak tampak dibuat asal jadi. Saya akan memfokuskan pembahasan saya pada 5 isu yang sedang ramai dibicarakan.

Pertama, sejauh mana penafsiran hukum diperbolehkan dalam kasus seperti ini? Kedua, apakah benar penetapan status tersangka tidak menciderai hak seseorang? Ketiga, apakah pemeriksaan terhadap penetapan status tersangka pada prinsipnya sudah memasuki ranah materi perkara sehingga tidak bisa diselesaikan melalui praperadilan? Keempat, apa sebenarnya yang dimaksud dengan penegak hukum dan bagaimana hubungannya dengan kewenangan penyidik untuk menetapkan seseorang menjadi tersangka? Terakhir, langkah apa yang sebaiknya diambil oleh KPK?

Sebagaimana sudah diduga sebelumnya, Hakim Sarpin menggunakan Pasal 5 dan 10 UU Kekuasaan Kehakiman tentang kewajiban hakim untuk tidak menolak suatu perkara karena belum ada aturannya serta kewajiban hakim untuk menggali dan memahami nilai-nilai hukum dan rasa keadilan yang hidup di masyarakat sebagai dasar untuk membuka kemungkinan adanya mekanisme praperadilan terhadap penetapan status tersangka.

Penggunaan alasan ini sah-sah saja, tetapi perlu elaborasi lebih lanjut. Tidak bisa menolak perkara tidak berarti harus serta merta membuka mekanisme praperadilan terhadap status tersangka yang memang tidak diatur secara eksplisit dalam KUHAP. Hakim tetap bisa menerima perkara tersebut dan kemudian menyatakan bahwa mekanisme Praperadilan tidak bisa digunakan untuk memeriksa keabsahan penetapan tersangka. Selain itu, apa pula yang dimaksud dengan nilai-nilai hukum dan rasa keadilan masyarakat? Pasal tersebut merupakan pasal karet dan bisa digunakan untuk memberikan justifikasi atas banyak hal, baik positif maupun negatif kecuali hakim-hakim di Indonesia sudah siap menggunakan data empiris.

Alasan yang lebih tepat untuk membuka pintu penafsiran menurut saya adalah karena KUHAP sendiri tidak tegas melarang penggunaan mekanisme praperadilan terhadap penetapan status tersangka. Apakah pembatasan dalam KUHAP tersebut bersifat mutlak atau tidak? Apakah kalau ada orang yang dirugikan haknya karena dinyatakan sebagai tersangka maka dia tidak memiliki sarana apapun untuk memperjuangkan haknya di muka pengadilan? Tentu akan ada yang berpendapat bahwa pembatasan ruang lingkup kewenangan praperadilan bersifat absolut. Tetapi secara tekstual, ada 2 jawaban rasional yang dimungkinkan dan itu berarti bahwa hakim perlu melihat alasan lainnya untuk mengambil keputusan dan juga perlu membuat isu ini menjadi jelas. Seandainya KUHAP tegas melarang digunakannya praperadilan untuk hal-hal selain yang diatur dalam Pasal 77 KUHAP, saya bisa dengan mudah menyatakan bahwa Hakim Sarpin gagal total dengan putusannya.

Saya perhatikan bahwa Hakim Sarpin juga menggunakan ide bahwa karena tidak ada yurisprudensi yang berlaku mengikat dalam sistem hukum Indonesia, maka kalaupun putusannya berbeda atau sama dengan putusan sebelumnya, hal tersebut tidaklah terlalu relevan. Walaupun saya menyayangkan pola pikir seperti ini, tetapi argumen Hakim Sarpin ada benarnya. Daripada meributkan fakta bahwa hakim yang pernah mengabulkan praperadilan untuk penetapan status tersangka di masa lalu pernah terkena sanksi administratif oleh Mahkamah Agung (untuk menunjukkan bahwa putusan tersebut tidak disetujui MA secara implisit), akan lebih baik apabila para pihak saling mencari dalil teoritis yang kuat untuk menunjukkan mengapa praperadilan bisa digunakan untuk memeriksa keabsahan penetapan tersangka atau tidak.

Berikutnya isu kedua, benarkah penetapan status tersangka tidak menciderai hak seorang warga negara sebagaimana diargumenkan salah satu saksi ahli KPK? Saya tidak sepakat. Penetapan status tersangka jelas menciderai hak seseorang. Ada stigma terhadap dirinya dan sewaktu-waktu ia bisa dikenakan upaya paksa yang pelaksanaannya sangat subjektif. Ia juga bisa dicekal sehingga tidak dapat bebas berpergian. Dalam beberapa kasus, status tersangka bisa menyebabkan seseorang kehilangan jabatan. Contoh gampangnya adalah Bambang Widjojanto dan Abraham Samad yang kini diberhentikan sementara dari jabatannya sebagai komisioner KPK. Sekalipun belum ditahan, pemeriksaan sebagai tersangka juga jelas akan memakan waktu si tersangka. Masih ingat kasus Benhan? Dia tidak ditahan, tetapi harus bolak balik luar kota - Jakarta karena memenuhi panggilan pemeriksaan penyidik.

Tentu saja tidak semua beban terhadap tersangka memberikan legitimasi kepada tersangka untuk meminta pencabutan statusnya sebagai tersangka. Kalau alasan penolakan penetapan tersangka adalah semata-mata karena si tersangka merasa dibebani, tentu semua tersangka akan menggunakan mekanisme praperadilan. Ini mengapa sebenarnya perlu dielaborasi lebih lanjut soal pencideraan hak macam apa yang dapat membuka pintu peradilan bagi penetapan tersangka. Apakah hanya dalam hal penetapan tersangka tersebut sudah berlarut-larut dalam jangka waktu tertentu yang menyebabkan tersangka kehilangan mata pencaharian? Atau dalam hal ada aturan UU yang menyebabkan tersangka tidak bisa mengambil jabatan tertentu? Bisa juga dinyatakan bahwa unsur pencideraan hak semata tidak dapat dijadikan alasan untuk menolak penetapan tersangka. Artinya, pencideraan hak hanya membuka pintu untuk praperadilan sementara penolakan status tersangka akan bergantung pada aspek-aspek lainnya semisal kelemahan bukti permulaan atau masalah wewenang penyidik untuk menyidik perkara tersebut.

Ini membawa kita kepada isu ketiga. Apakah pemeriksaan praperadilan soal penetapan status tersangka bisa dianggap merupakan pemeriksaan materi pokok perkara yang sebenarnya menjadi wewenang peradilan? Tidak otomatis demikian. Sebagaimana diatur dalam KUHAP, penetapan tersangka bertumpu pada bukti permulaan yang cukup. Definisi bukti permulaan yang cukup inilah yang kemudian menjadi permasalahan karena tidak didefinisikan secara jelas dalam KUHAP. Walaupun dalam prakteknya, bukti permulaan yang cukup didefinisikan sebagai 1 alat bukti yang berdasarkan KUHAP ditambah laporan polisi. Dasar definisi tersebut bisa dilihat di sini.

Definisi tersebut sangat rawan penyalahgunaan. Hanya dengan mengandalkan satu alat bukti dan laporan polisi, seseorang bisa dengan mudah dinyatakan sebagai tersangka! Ini mengapa penggunaan lembaga praperadilan menjadi semakin krusial untuk pemeriksaan bukti permulaan yang cukup. Karena sifatnya permulaan, seharusnya tidak bisa dianggap sebagai pemeriksaan pokok perkara. Penyidik sendiri tidak harus khawatir bahwa karena bukti permulaan tidak cukup kemudian tersangka bisa sepenuhnya bebas dari jerat hukum (seandainya memang benar tersangka itu adalah pelaku kejahatan).

Dalam hal ini, pernyataan tidak sahnya suatu penangkapan tidak berarti bahwa penyidik tidak bisa lagi menetapkan kembali seorang mantan tersangka sebagai tersangka. Kuncinya adalah menemukan alat bukti yang lebih kuat untuk dianggap sebagai bukti permulaan yang cukup. Bahwa kemudian ada resiko nantinya tersangka akan kabur duluan sudah merupakan bagian dari resiko pekerjaan. Sudah seharusnya penyidik tidak sembarangan menetapkan seseorang menjadi tersangka untuk kemudian membiarkan kasus tersebut terbengkalai sambil menyandera si tersangka terus menerus. Saatnya mengakhiri kekuasaan mutlak penyidik dalam menetapkan seseorang menjadi tersangka!

Namun demikian, ada juga kemungkinan dimana penyidik tidak bisa lagi menetapkan si tersangka sebagai tersangka di kemudian hari dalam hal ternyata penyidik tidak berwenang untuk memeriksa si tersangka. Ini isu keempat yang juga terkait dengan pertanyaan soal definisi penegak hukum. Dalam putusan Hakim Sarpin, KPK dianggap tidak berwenang untuk menyidik Budi Gunawan karena jabatan yang dipegang oleh Budi Gunawan terkait tuduhan korupsi yan dilekatkan kepadanya tidak memenuhi definisi pejabat negara maupun penegak hukum, pun kasusnya tidak dianggap meresahkan masyarakat, ataupun menyangkut kerugian negara.

Masalah kewenangan ini adalah isu yang paling berat bagi KPK karena apabila memang KPK tidak dianggap berwenang menyidik Budi Gunawan, maka KPK sama sekali tidak dapat menetapkan Budi Gunawan sebagai tersangka dan putusan Hakim Sarpin juga menyatakan demikian. Hakim Sarpin nampaknya berpendapat bahwa definisi penegak hukum adalah terbatas hanya pada penyidik dan penyelidik saja. Apakah ini definisi yang tepat? UU KPK memang tidak memberikan definisi mengenai apa yang dimaksud dengan penegak hukum. Ketentuan tentang hal tersebut tersebar di berbagai undang-undang. Dan kalau bicara secara luas, advokat pun termasuk penegak hukum.

Yang menarik adalah, apakah istilah penegak hukum yang dimaksud dalam UU KPK itu merujuk kepada jabatan yang melekat pada seseorang atau hanya pada fungsi jabatan yang sedang dijalankannya? Apabila kita menyatakan bahwa definisi ini melekat pada jabatan, maka Budi Gunawan otomatis dikategorikan sebagai penegak hukum karena dia menjabat sebagai polisi. Apabila terbatas pada fungsi, bisa jadi Budi Gunawan memang tidak dikategorikan sebagai penegak hukum dalam kapasitasnya selaku Kepala Biro Pembinaan Karier Staf Deputi Sumber Daya Manusia Polri ("Karo Binkar").

Sayangnya, dalam jawabannya, KPK tidak memberikan bantahan terhadap pengertian penegak hukum yang didalilkan oleh Budi Gunawan. Menurut saya, bahkan seandainya kita menganggap bahwa istilah penegak hukum adalah terbatas pada fungsi, sebenarnya masih tetap terbuka kemungkinan bagi KPK untuk menetapkan Budi Gunawan sebagai tersangka. Konteksnya, apakah dengan menjadi Karo Binkar, Budi Gunawan kemudian kehilangan status dan wewenangnya sebagai polisi yang notabene merupakan penegak hukum? Karena kalau tidak, perlu dilihat lebih lanjut apakah penerimaan suap yang dituduhkan itu murni terkait dengan jabatannya sebagai Karo Binkar, atau dalam kapasitasnya sebagai penegak hukum.

Yang pasti, saya menyadari bahwa definisi penegak hukum dalam UU KPK masih membuka ruang interpretasi dan besar kemungkinannya bahwa argumen Hakim Sarpin dapat dibantah. Dengan demikan, terdapat permasalahan hukum yang masih perlu ditegaskan oleh Mahkamah Agung sehingga tidak ada kerancuan lagi di masa depan.

Terakhir, langkah apa yang perlu diambil oleh KPK? Sebagaimana saya sampaikan di atas, dampak putusan praperadilan adalah bukan berarti Budi Gunawan kebal hukum dan tidak bisa dinyatakan sebagai tersangka lagi di masa depan. Aturan nebis in idem (perkara yang sama tidak boleh diadili 2 kali) tidak berlaku di sini karena kita belum memasuki pokok materi perkara. Seandainya isunya adalah terbatas soal lemahnya bukti permulaan yang cukup, KPK bisa dengan mudah memperbaharui buktinya dan menetapkan kembali Budi Gunawan sebagai tersangka. Namun, putusan Hakim Sarpin juga menyatakan bahwa KPK tidak berwenang menyidik Budi Gunawan.

Untuk itu, KPK bisa memilih untuk melimpahkan perkara ini kepada kepolisian atau kejaksaan. Apabila dirasa kedua institusi tersebut terlalu bias terhadap Budi Gunawan, langkah lainnya adalah mengajukan Peninjauan Kembali kepada Mahkamah Agung mengingat masih ada isu hukum yang perlu diklarifikasikan kembali. Saya tahu KPK bersikeras ingin mencegah adanya mekanisme praperadilan bagi tersangka, tapi kalau KPK peduli pada hak tersangka-tersangka lainnya yang seringkali dicederai dengan rekayasa kasus dan sekaligus juga membantu mencegah kriminalisasi terhadap pejabat-pejabat KPK, KPK dapat memfokuskan permohonan peninjauan kembalinya pada aspek wewenang KPK untuk menyidik Budi Gunawan (khususnya soal definisi penegak hukum). Hal tersebut sudah cukup sebenarnya bagi KPK untuk tetap bisa melanjutkan kasus ini.

Saya pribadi berharap kasus ini tidak ditinjau kembali dan menjadi putusan yang sudah benar-benar berkekuatan hukum tetap. Polisi sendiri sekarang sudah mengakui adanya mekanisme praperadilan terhadap penetapan status tersangka karena mereka secara terbuka menggunakan mekanisme ini untuk urusan mereka. Ini momen langka, sampai-sampai dalam kasus Abraham Samad, polisi saja mempersilakan Samad untuk mengajukan praperadilan (dan sayangnya Samad tetap tidak mau mengajukan praperadilan).

Kalau dikatakan bahwa membuka pintu praperadilan untuk penetapan tersangka akan merusak hukum Indonesia, saya sangat meragukannya. Pintunya tidak tertutup secara mutlak dalam KUHAP dan senjata ini bisa digunakan untuk hal yang baik maupun yang buruk. Mengapa tidak kita gunakan untuk sebanyak-banyaknya kepentingan yang positif? Atau ini semua cuma masalah gengsi belaka? Tunggu sampai semua yang katanya "orang baik" dinyatakan sebagai tersangka dengan tuduhan kejahatan yang culun? Percayalah, jadi baik saja tidak cukup di dunia ini, anda juga harus jadi orang pintar. Kecuali anda serius berpikir doa dan teriak-teriak di media saja cukup untuk mengubah status tersangka tersebut. Semoga KPK mengambil langkah yang tepat.

This article is a continuation of my previous article: In Defense of Legal Positivism - A Reply to Iman Nasima. Since Imam has kindly responded to my article here, I think it should be appropriate to press the discussion one step further (though I have to apologize for the huge delay in responding to his second article).

Legal Positivism is Not a Method of Legal Interpretation

The first question that I asked in my previous article is: how critics to Legal Positivism perceive Legal Positivism? Is it a legal theory or method of interpretation? For me, the answer is obvious. Legal Positivism does not deal with method of legal interpretation, it is a theory of law.

Why does this distinction matter? Because from my readings of various people who criticizes Legal Positivism, I get a tendency that they equate Legal Positivism with strict Textualism or Legal Formalism, i.e. that under Legal Positivism, judges tend to interpret the laws solely based on the texts of the formal laws issued by the state, and that these judges do not consider other basic principles such as justice and morality when they can found a governing law in resolving legal matters.

Of course this is completely wrong and shows a lack of understanding of what is Legal Positivism. You cannot make a good critic if you don't understand the concept that you criticize. It will simply be a waste of time for everyone.

Whose Authority?

This is indeed a really difficult question. In practice, questioning the normativity of law will not be completed without asking who is the authority that must be honored in the first place. This is in line with the support given by Legal Positivism to the Source Thesis, i.e. that the existence of law can be solely derived from its sources and not its contents.

Under the Source Thesis, people can recognize the existence of the law by paying attention to the sources of that law, i.e. the authority who issues the law. HLA Hart tried to explain this thesis through Rules of Recognition, i.e. secondary rules in a legal system that give guideline on when certain rules can be treated as laws.

When certain rules meet the criteria of the Rules of Recognition, those rules will be deemed as laws with all of their authoritative/normative power upon their subjects. The problem is, who stipulates the rules of recognition and why we should follow those rules of recognition in the first place?

At this stage, Legal Positivism as a descriptive theory of law would be unable to answer that question. Why? Because it is a question of fact. Imam correctly shows that there are various competing theories on dealing with the concept of authority and how authorities derive their power.

To give more context on the above discussion, I recently read Justice Scalia and Bryan Garner's treatise on Legal Interpretation where they said that British and US judges differ in terms of authority. In England, the judges can hold the same position with legislators, so they can make the law and interpret the provisions at the same time. While in the United States, the power to make laws lies with the legislators while judges are required to enforce the laws.

The basis for this separation of power in US (at least according to Scalia and Garner) is to maintain the basic principles of democracy, i.e. that laws should be promulgated by representatives of the people that will be held accountable to their voters, and not by judges who are not appointed through democratic process.

It's an interesting theory of how judges and legislators should behave in a legal system, but I'm not sure that we can consider this as a pure legal theory. It's more of a political theory. There is no legal basis on why judges should behave like what Scalia said nor a rule of recognition for that given the fact that judges in the United States are still debating on their roles in the legal system.

The same thing is also applicable for Indonesian case. Suppose that judges political power is weak here, would that be a concern of Legal Positivism? I would say no and that would be enough for the purpose of defending Legal Positivism. From the very beginning, what I want to show through my previous article is that the critics misunderstand the issue. If the judicial branch is weak in Indonesia, it does not have any correlation with Legal Positivism as a theory of law.

How Social Facts Are Determined?

In dealing with Imam's second question, I find it interesting that he made a correlation between public acceptance of judges decision with the normative power of such decision. Should the judges decision be accepted by the majority of the public in order to be eligible to be considered as a valid law?

As interesting as it may be, it is actually not a question that can be answered by Legal Positivism as a descriptive theory of law. It is again, a question of fact. Legal Positivism only says that law is a social fact, that its existence relies on the acceptance of the majority, including the people and legal authorities.

However, Legal Positivism is silent on the actual practices of social acceptance because they can have many different forms. Theoretically speaking, we can have a legal system where court's decisions will be automatically considered as an authoritative source regardless of public acceptance of the content, and it is also possible to have a legal system where in order to obtain validity, a court's decision should be accepted first by the majority of the people. Can we use Legal Positivism to endorse the first system against the second one and vice versa? I don't think so.

In fact, we already have a very good example when we discuss the power of judicial precedents. It is common to aspiring Indonesian law students that in Indonesia (and other civil law countries), unlike in the common law countries, the principle of stare decisis, i.e. that a court's decision will be considered as a binding precedent to be followed by future court decisions, is not applicable. Thus, in Indonesia, future judges are free to disregard previous decisions and make their own decisions for a similar case.

Will Legal Positivism say that common law stare decisis system is better than civil law system? No. Can Legal Positivism explain why Indonesia and civil law countries choose to abandon stare decisis system? No.

But I am confident that Legal Positivism can explain to us that stare decisis is not applicable in Indonesia because most, if not all, of Indonesian legal authorities reject the concept. In other words, under Indonesian rules of recognition, court decisions do not have binding precedent power toward future court decisions (at least as of the date of this article). Can this rule of recognition change in the future? Might be, who knows?

Can Law and Economics Succeed in Indonesia?

Imam claimed in his article that Law and Economics method will fail as long as the judicial power is not strong enough to uphold any form of legal certainty. I do not think so. After all, judicial branch is just a part of the overall legal system and Law and Economics can become a mainstream legal thought through many windows, including the academic world and other branches of government.

When Imam mentioned the names of Posner, Dworkin, Barak, etc, I do not think that he discussed their debates in legal theory but more on legal interpretation method. This is not relevant to Legal Positivism. How the judges should interpret the laws is not a question for Legal Positivism (the same mistake made by Dworkin when he criticized Legal Positivism).

As a descriptive legal theory, Legal Positivism would be more interested on what are the actual methods of interpretation that are acceptable in a legal system. What does this mean? In a situation where there is no clear ground rules for legal interpretation, every system of legal thought can fight for domination.

As I said in my previous article, Law and Economics was not a mainstream thought in the United States prior to the 1970s era. It was thanks to Richard Posner and many other academics and political patrons that Law and Economics could finally gain a dominant position in the US legal thought. We see more judges using economic analysis in resolving cases.

How about in the executive branch? It was Cass Sunstein who brought cost and benefit analysis to the next level in the US government regulatory making process through his office, OIRA. Is this because of Legal Positivim? Of course not, it's a political and academic fight. The same thing can also happen in the legislative branch through political process.

This is what I want to reiterate to the misleading critics of Legal Positivism. If you want to ensure that your personal legal thought (whatever that is) can dominate Indonesian legal thought, it is a waste of time to criticize Legal Positivism because it is not Legal Positivism's mistake in the first place. In short, try other persuasive methods and good luck with that.

As the title says, this article is a reply to a very interesting post from Imam Nasima on Legal Positivism Trend in Indonesian Legal System. As interesting as it may be, personally, the article raised a fundamental question, i.e. did Imam and the people he mentioned in his article discuss Legal Positivism as a legal theory or as a method of legal interpretation? If they talked about the second, I'm afraid that there is a misunderstanding here and my gut feeling says that this is a mistake similarly made by the majority of Indonesian legal scholars who deal with progressive legal theory.

Legal Positivism as explained by HLA Hart does not specifically deal with method of legal interpretation. After all, it is a theory about the law, on why law exists and has authority upon the people. In Hart's view, a rule existing in the society shall be treated as a law when the majority of the people in such society accept the authority of such rule from an internal point of view and the legal officers in such society treat such law as an authoritative source in rendering their decision.

Hans Kelsen, the father of Legal Positivism in the Civil Law tradition, also holds a similar position, albeit in a more normative way, i.e. that the validity of the laws is based on power conferring norms existing in a hierarchical system until we reach the basic norm where we presuppose the authority of such basic norm. Upon reaching the basic norm, Kelsen believes that the acceptance of the community of such basic norm is basically a social fact, something that cannot be explained by legal theory anymore.

Thus, in short, under Legal Positivism, law is a social fact, and to certain extent, it might be just a matter of head count. If most people believe and treat a rule as a law, such rule will eventually be considered as a valid law (of course this is a super simplified version of the theory). This however, brings us to the next question i.e., what's the relationship between Legal Positivism and legal interpretation?

A book titled: "Between Authority and Interpretation" written by Joseph Raz, one of Hart's best students, can give a good hint that a theory on legal authority does not automatically deals with theory on legal interpretation. In fact, to the best of my knowledge, I do not think that legal positivism endorses certain kind of legal interpretation method over another method.

This is the crucial point when we deal with Imam's post. From my reading, the critics to Legal Positivism made by the people in his post seem to be confused because they mix up Legal Positivism with rigid textualism. The idea that judges and lawyers should see beyond the text of the law is not an idea rejected by Legal Positivism.

Hart, which was also a master of the linguistic philosophy, acknowledges that there is a limitation for languages in delivering meaning, namely, there is a penumbra, a condition where confident speaker of the language will have different interpretation of a term. In other words, languages might not be able to convey the full intention of the speaker. And in such case, interpretation would be necessary.

Granted, in Hart's view, legal cases should be divided into two types, the easy cases and the hard cases whereas in easy cases, legal interpretation should be minimum since the judges will only need to apply the relevant law to the particular facts while in hard cases, judges will have more discretion. But even in easy cases, Hart believes that there are instances where judges do not have to apply the rules due to reasons such as justice and morality.

Regarding the above division of easy and hard cases, rather than making a normative argument, I think that Hart is making a practical argument, namely, the division is made based on his assessment of judges practices in the real world.

Most modern legal positivists believe that there is no prima facie moral obligation to obey the law, i.e. that the law does not have the highest power to exchange any moral reasoning that can be used by someone as a reason for action. The authority of the law simply lies in the fact that most of us accept such law as an authoritative source but it does not necessarily mean that we have a primary moral duty to obey the law and disregard any other moral reasoning.

This is consistent, I believe, with Hart's theory that law is a social fact. It is the fact in the real world that will determine how the law will be accepted, implemented and interpreted. Hart's theory of Legal Positivism therefore cannot be expected to endorse certain moral values or method of legal interpretation.

So what is the real problem here? If legal positivism can accept interpretation of legal texts, why are we still seeing people blaming Legal Positivism for the lack of progressive movements in Indonesia legal community?

Two possible explanations can be given here. First, the majority of Indonesian judges might actually believe that the law should be interpreted rigidly. Second, rigid interpretation is only being used to justify judges prior belief on certain moral and social issues. For both cases, further research should be done to know what the judges really think. In the United States, such type of research is common because their legal scholars really want to understand how judges will decide cases and what factors will be considered by them. I don't know though about Indonesia or whether our researchers will walk on the same path.

In any case, given the above explanations, I do not think that Legal Positivism can be blamed for the rigidity of the judges (assuming that is correct). Again, we return to the concept of law as a social fact. Legal Positivism will just say that descriptively, the majority of Indonesian judges adhere to strict textualism. Therefore, we can say that in Indonesia, the use of strict textualism will be considered as an authoritative way of reading the law. That's it. As simple as that.

Whether having strict textualist judges is good or not is a completely different question and I don't think that Legal Positivism would have the answer because it is not in the scope of a descriptive/positive theory to say about something normative such as, whether we ought to have judges who are not strict textualists and who will consider other norms and values in rendering their decision.

For me, the fact that Indonesian judges are strict textualists (again, if the assumption is correct since we need more data) does not have any correlation with Legal Positivism. I mean, I am a supporter of Law and Economics movement, who believe that legal rules should be interpreted in a way that maximize efficiency and the welfare of the society, and at the same time, I am also a Legal Positivist.

Can that actually happen? Being a Legal Positivist and at the same time becoming a supporter of Law and Economics? Why not? The problem is, Law and Economics is not yet a mainstream thought in Indonesian legal community and therefore, I would safely assume that most Indonesian judges would not taking it seriously, or even consider it as a part of valid consideration in deciding cases.

But should I blame Legal Positivism for such problem? Of course not. The only reason why strict textualism can become an authoritative method of interpretation is because most of the judges adhere to such method, not because Legal Positivism imposes a normative criteria that good judges should only use strict textualism in order to become authoritative.

If say, I would be able to convince most Indonesian judges in the future that Law and Economics is the best method of legal interpretation and most of them accept such theory and apply it in their cases, would not it be that from Legal Positivism point of view, Law and Economics becomes an authoritative method of legal interpretation that should be followed by the judges? This shows that any method of legal interpretation can live side by side with Legal Positivism.

I think that blaming Legal Positivism for Indonesian judges behavior is misleading. At the highest level, we are dealing with social facts, not normative issues. Prior to 1970s, Law and Economics was not a mainstream thought in the United States, but after the work of many people including scholars, law schools, and NGOs, it became a mainstream thought and currently holds a strong position in antitrust and corporate law cases (though weaker in the field of contracts and torts). The same thing might happen with the legal progressive movements in Indonesia. The question is, do they have a strong basis to convince our judges and lawyers to convert their belief or they simply don't have what it takes to survive in the field of legal theory? Time will tell.

A couple of days ago, the Constitutional Court decided that Article 43(1) of Law No. 1/1974 on Marriage is deemed conditionally unconstitutional. You may read the complete decision here. This is indeed an interesting development. For many years, most legal scholars agree that a child born outside a legitimate marriage will only have legal relationship with his/her mother and not with the father. In other words, the Constitutional Court decision revolutionizes the entire concept of illegitimate child. The big question is, is it a good thing?

I must say that I am disappointed that the decision is poorly reasoned. From a total of 45 pages, the majority opinion only consists of 3.5 pages. It is true that you can't assess the quality of a legal opinion merely from its length, but still, I think that the majority should further elaborate their thoughts before making such a revolution, especially when they claim that: (i) marriage registration is only an administrative requirement of marriage instead of a validity requirement, and (ii) that sexual intercourse that produces child imposes a legal obligation to the parties involved.

The discussion will be divided into 3 sections. First, we will discuss the claim made by the majority opinion that marriage registration is only an administrative requirement. Second, we will discuss whether Constitutional Court has the power to change the concept of father's obligation toward illegitimate child. Third, we will discuss the economic analysis of this major change and how it will affect the incentives of Indonesian people.

A. Marriage Registration is not and should not be an Administrative Requirement

I do not understand how the Constitutional Court can say that registration of marriage should only be an administrative requirement when in fact Religious Court usually, if not all the time, does not recognize a marriage which has not been properly registered even though such marriage has satisfied the so called "religious" requirements. While this is only a reasoning and is not a part of the decision itself, it still gives an ammunition to the proponents of unregistered marriage who believe that they can validly marry without having to register the marriage, seriously jeopardizing the rights of the parents (either the mother and/or the father) and the children in case they don't have any supporting evidence in the court.

There is a good reason why we want marriage to be registered and as far as I can see from the majority opinion, they too reach the same understanding, i.e. that it will be more efficient for court and administrative process if the marriage status of citizens is clear. Maybe the majority think that since an illegitimate child will have legal relationship with his/her father after this case, it will not be harmful to say that marriage registration is not a requirement for marriage validity. If this is true, then the majority has made a big mistake.

Under the rational choice theory, we could safely assume that rational people who choose the path of marriage would love to have their marriage properly validated. This means that they will do all the necessary requirements to ensure that there is nothing wrong the legal status of their marriage, including their marriage registration. And it is also rare to find a modern day case where these rational people fail to register their marriage properly only because they don't know about such requirement.

This indicates that marriage registration can be considered as an effective way to screen those who want to have a valid marriage and those who want to find a loop hole within their marriage. As such, we can infer that unless there is a strong evidence of good faith negligence, people who do not register their marriage must have a bad faith intention. After all, it would be highly questionable if a couple would let go all of their marriage benefits by fail to register their marriage, unless they have other goals to pursue.

Right now, there are some ambiguities in the law on the legal status of marriage registration. While legal ambiguities are usually bad, there are situations where ambiguities are helpful, such as in this case. We can screen the bad faith couple and since there is a risk that the marriage is invalid, parties will have the correct incentives to make their own decision for the marriage. However, by saying that marriage registration is only an administrative requirement, we destroy the protection given to the good faith couple and also the effectiveness of the screening mechanism.

Remember, marriage cases can be complicated and it does not have to include child issues. It could be that a male want to avoid responsibility, it could also be the husband want to have another wife, it could be that a woman want to steal another woman's husband, etc. In any case, priority of protection should always be given to those who have a valid marriage. First, the costs to assess the validity would be cheaper. Second, it also gives incentives to good faith spouse to question his/her spouse on why they don't register the marriage. That would not happen if we say that registration is only an administrative thing, meaning that the marriage would still be valid even without any registration. How could an average person (without any legal knowledge) effectively screen his/her spouse if he/she can convince her that registration does not affect their marriage?

If Constitutional Court wants to talk about the right of illegitimate child, they should focus on the relevant article, instead giving a poorly reasoned analysis like this. It does not help the already problematic marriage case and it will reduce the costs of being unfaithful.

B. Constitutional Court Authority for Making Such Decision

Can we say that the Constitutional Court breached its authority by saying that an illegitimate child also has a legal relationship with his/her father? Not necessarily. Legally speaking, declaring that the provision of Article 43(1) of Law No. 1/1974 which says that an illegitimate child only has a relationship with his/her mother is unconstitutional can only mean one thing, that an illegitimate child should also have a legal relationship with his/her father. This is an a contrario method of interpretation and is acceptable among legal scholars.

The fact that the Constitutional Court must add the requirements for having a scientific test in order to prove the blood lineage is something that we can't avoid. If the Constitutional Court does not say anything about such problem, it would be problematic for district and religious courts in determining the status of their child since currently there are no clear standards for such proceeding. As such, I believe that the decision, poorly reasoned as it may be, did not breach the scope of Constitutional Court's authority.

C. The Economic Effect of the Decision

The economic effect of this decision would be interesting. On the one hand, people who want to avoid marriage responsibility by refusing to register the marriage will have less incentives to produce child, while those who want to steal other people spouses will try their best to produce an illegitimate child. For the illegitimate children, this might be a good decision, at least if they are unwanted, the parents will have less incentives to give birth to them. However, I still have some concerns, especially with the Court's reasoning on marriage registration and also the right of legitimate child.

To the extent the couple can successfully prevent the birth of a child in unregistered marriages, I doubt that we can reduce the rate of unregistered marriage if we say that it is only an administrative requirement. And this will be bad for people who don't know how to protect their right under a valid marriage. It seems the Constitutional Court forgot that a child is only one actor within a marriage and that we should also consider the right of the husband and wife.

Furthermore, granting legal relationship to illegitimate children would not be a problem to the extent it is applied to a father who only have one spouse. It would be problematic if the illegitimate child was produced with his mistress, since it means that the grant of such relationship is made on the expenses of the person's wife and legitimate child. This is something that should also be considered. It might be that this decision will give more incentives to wives to increase their supervision on their husbands, ensuring that they will not cheat outside and thus increases the costs of their marriage. But it could also be used by a husband to subdue his wife to follow his intention of having another marriage since no matter what, once he produces an illegitimate child, such child will still have legal relationship with him, and the legitimate wife and child will not be able to do anything.

From these scenarios, we can see that the problem is not that simple. Personally, I believe that it would be more efficient if the Court clearly says that the marriage without any registration is invalid, after all, all of these problems would not happen if not for the registration issue. This would give better clarity and give incentives to people to avoid unregistered marriage so that guys cannot trick women into that kind of marriage and vice versa. Nevertheless, the decision has been made and we will need to abide by it. I could only hope that it will not produce the wrong incentives to Indonesian couples.

The title of this post reflects my curiosity with lawyers (by lawyers I mean all people who have received formal legal education) who desperately seek legal certainty. Their usual argument is: legal uncertainties will lead to unfairness and arbitrariness within the society, which obviously is bad. However, I must say that there is a fundamental flaw in this argument since legal certainty too can also produce unfair and arbitrary result. Most of the time, law is a political product rather than an absolute principle, and thus there is no guarantee that the process is clean from any competing interests, where one group would be the winner on the expense of others. In other words, both legal certainty and uncertainty are neutral concepts, they can be good and bad at the same times depending on how we view its purpose and effect to the society.

Maybe the problem lies with the definition of legal certainty itself. Does this mean that the law should be predictable? Or does it mean that the law should be formal and rigid, that there is a general standard applicable for every cases and that it should be enforced without any exception? Answering this issue is indeed a herculean task but I'll try to describe my basic points in this post to start the discussion.

First, we should move to a famous Antitrust Case in the Supreme Court of the United States, Leegin Creative Leather Product, Inc. v. PSKS, Inc. This was a case for vertical price fixing, where Leegin, a leather goods and accessories manufacturer imposed a minimum fixed price for its products that must be complied by its retailers. One of its retailers, PSKS, refused to comply with such minimum price and as result, Leegin ceased to sell its products to PSKS imposing a huge amount of losses to PSKS. PSKS then argued that Leegin has entered into an agreement with his retailers, including PSKS, that restrained trade or commerce (basically restricting competition) and therefore it should be deemed violating the Sherman Act (the Antitrust Law of the United States).

For more than 100 years, the precedent in the United States concerning vertical price fixing is that it is a per se illegal agreement, meaning whatever the reasoning for entering into such agreement, such agreement will be deemed as anti competitive and therefore illegal. However the majority opinion in the Supreme Court reverse such long standing precedent as instead declare the rule as a rule of reason, meaning that such agreement will only be illegal if there is a solid evidence that such agreement is unreasonable and causes anti competitive behavior which adversely affect the welfare of the society.

This is a very interesting case for many reasons. First, the decision was full with economic analysis (something that is quite rare on the Supreme Court level). Two, the decision rejected the application of per se rule for this type of case (which is the usual formalistic way of legal reasoning) on the basis that while such per se rule lowers the administrative costs for future cases (i.e. since every similar contract should be deemed illegal, it can be expected that all courts in the United States will give similar treatment without having to go to a lengthy process caused by the use of rule of reason), it can also produce inefficient results since in the view of the majority, the existence of vertical price fixing can also produce pro-competitive results in certain conditions (such as promoting competition between manufacturers while maintaining price in the level of retailers).

The dissenting itself argued that while there might be certain positive economics effects of vertical price fixing, this is not something unknown back in 1911. If the past justices believed that such positive elements can not justify the legality of the arrangement, how could the current justices defy such reasoning? If there is no significant change in the conditions related to the case, the stare decisis rule (i.e. that a court precedent should be binding against future cases which have similar conditions and elements) should still be applicable and therefore the court should not reverse the precedent. This will ultimately jeopardize legal certainty created by stare decisis rule. As you can see, both groups of justices provide interesting points with respect to legal certainty versus legal flexibility (which is supported by economic reasoning).

Another experience that I had with my Judicial Decision Making course is also interesting to be shared here. As justices in the Supreme Court of Delaware, we handle various cases related to mergers and takeovers of publicly listed corporations. The issues are complex, ranging from shareholders rights for appraisal for their shares in a merger transaction, conflict of interests between shareholders and directors, and fiduciary duty of directors toward corporations. We work on the basis of clean slate doctrine (so we can build our own business law doctrine) and we also build our own set of precedents to be used for future cases.

Only in three weeks and 6 cases, I could easily see how difficult it is to build a consistent approach to the various issues that we face. When we think we have already considered everything, the next new cases show that the principle that we used in the previous case cannot be applied consistently or it will bring a perverse result, either to the corporation or to the shareholders, etc. To certain extent, we need to revise the precedent that we have established previously in order to accommodate the cases.

Take as a case, the doctrine of business judgment, that directors should not be liable to the shareholders in case they can show that they have done their job with good faith and with a reasonable care. Seems easy to translate in practice, but in reality it is not. When can we say that the directors have acted to the best extent of their capabilities? Who can evaluate the performance of the directors? The court? But the court is not a business expert, and putting too much standard might not be a good solution if the ones who create such standard do not have sufficient capacity. So again I face a dilemma, picking certainty versus uncertainty.

If only all legal issues are white and black, maybe seeking legal certainty would not be a desperate issue. But in reality, we live in a gray world. Forcing certainty to everything tends not to solve the problem. On the other hand, having an exact rule will reduce administrative costs (as stated in Leegin case), but on the other hand, it does not mean that it is clean from other type of costs, in fact it can also produce inefficient results. The key question is, how can we strive for a balance?

One of the interesting point of the US legal system is how they divide their laws into two major groups. The common law and the statutory law. The statutory law resembles the civil legal system that we use in our country where everything is regulated by statutes and we tend to answer any legal issues on the basis of the provisions of such statutes. Meanwhile, the common law also use statutes as the basis (other than using judge made law), however statutory provisions that fall under the common law group tend to be more general and somewhat ambiguous, which most or the time are further elaborated by the judges in the court. The US Antitrust Law and the Securities Laws are two good examples of this common law type where the provisions are simple and open to many interpretations by the court.

Obviously the level of certainty in this type of common law statutes is lower than the statutes in the statutory law group. I can confirm this at least from my experience dealing with US securities laws and antitrust law issues. You can make various arguments with the issues such as what constitutes securities, what constitutes public offering, what constitutes a rule of reason case, etc. Compared this with Indonesian securities laws and antitrust laws where it is more certain in terms of definition and concepts. Even for the Delaware General Corporate Law which is quite exhaustive, we can have a heated debate concerning what provisions should be considered as a default rule (i.e. can be waived by parties through a contract like in Indonesian contract law) and what provisions should be considered as a mandatory rule absent express provisions in the body of the law.

Maybe this is a good time to evaluate to what extent we should have certainty in our legal system, whether everything should be regulated precisely so that there is no room for flexibility for the sake of securing certainty. We should also see to what extent the court can be a more productive asset in our legal system by giving them bigger flexibility in solving certain type of cases (such as in corporate and securities laws).

Furthermore, instead of trying to regulate everything within the provisions of a law, maybe it would be a good idea to instead create a more flexible regulation accompanied with a governing value that should be used whenever we want to interpret and enforce the provisions of such regulation. One good example is the normative principle of law and economics where law should be designed to promote efficiency and maximize the welfare of the society (though other people might also have different values). I believe that answering this issue would contribute significantly to the development of our legal scholarship and I would be interested to elaborate more my ideas on this subject in a more formal way.

Two of the interesting notions in the world of legal interpretation are the existence of legislative intent (maksud pembuat undang-undang) and that such intent is eligible to be used in interpreting ambiguous laws. I too must admit that I once agreed with those notions during my undergraduate days, but later on I changed my position and my encounter with Public Choice theory strengthened my conviction. First of all, legislators (in our case, DPR) are not a single entity. As famously termed by Kenneth Shepsle, a Professor of Government from Harvard University, "congress is a they, not an it". There is a deep insight in that statement with some serious implications.

Some legal scholars believe that legislators have certain intentions when they promulgate a law. Thus, whenever there are ambiguities in the law, judges should try to interpret the text of the law in accordance with the governing legislative intention. But of course, this is far from the truth. Try reading a law and see the elucidation section. Some have explanations, but most of the time, we only see the words: cukup jelas (clear enough). And I can confirm with huge confidence that the term "clear enough" is simply overrated, meaning that what those legislators thought as clear is not clear at all. After all, no language can perfectly express the intention of a single person, what do you expect then from our language in expressing the intentions of 560 people?

The fact that our DPR consists of hundreds of members shows that it is impossible to determine their intention as a whole. There would never be a single unified intention from these people. Each faction has its own interest, and each member of such faction might also have different interests and preferences. The final product, i.e. the law along with its elucidation, does not necessarily reflect the intention of the overall legislators, it is simply the result of various political compromises with all of its flaws and errors. There might be the winning coalition and losing coalition and the law may only reflect the view of the winning coalition. Not to mention that there are also possibilities of interest groups' involvements in law making process which might jeopardize the interest of many for the needs of the few.

So what is the biggest implication of the above insight? We must understand that since the legislators do not have an unified intention, trying to interpret the laws in accordance with their intention might not really work in practice. A good example is the Constitutional Court decision in the judicial review of Broadcasting Law (Law No. 32/2002), specifically on the authority of the Indonesian Broadcasting Commission (KPI) to issue broadcasting licenses for private broadcasting companies. In such decision the Constitutional Court declared that what the legislators intend to say does not mean anything if it is not expressed in the law itself.

As a background, the law says that the authority to issue broadcasting license resides with the Ministry of Communication and Informatics (KOMINFO). However, KPI argues that the legislators actually intend to give such authority jointly to KOMINFO and KPI in its capacity as the representative of the people. After all, KPI has the authority to conduct the preliminary selection process and provide recommendation to KOMINFO. Why then the licensing authority should solely fall into KOMINFO? But as stated by the Constitutional Court, it doesn't matter what the legislators thought about what KPI authorities should be. If they don't put it in the law, they can't say it as a law.

I tend to agree with the Constitutional Court, but I would not stop only on the texts of the law. Even when we refuse to acknowledge the existence of legislative intent, we still need to be practical. In my view, interpretation of the law must consider three main factors: (i) the texts of the law, (ii) the context of such texts in view of the overall provisions of the relevant law, and (iii), the possible consequences of using such context in practice. The law is a product of men and thus cannot and should never be separated from a reality check. Furthermore, with respect to my third point, as I've always stated in my posts, the law should be directed to reach the most efficient result, meaning satisfying the welfare of the society as much as possible with the lowest costs possible.

Using this method of interpretation, the text of the law would still be the primary source of the law, but we will also be less formalistic in interpreting the texts. Instead, judges decision will be guided by how their judgment can achieve the best results for the society welfare by calculating the costs and benefits of the immediate and long term effect of their judgment. No wonder Oliver Wendell Holmes, in his most famous law review article written in 1897, The Path of the Law, argued as follow: "For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics."

Of course, it is not easy to use this method of interpretation in practice. We tend to narrow this method to simply judging based on the society's sense of justice which is not helpful at all since we really don't have a standard of what could be exactly considered as the society's sense of justice. No wonder judges choose to use legislative intent as a solution when plain meaning method does not work to solve the case.

Right now, I am taking a class on Judicial Decision Making, focusing on corporate law issues, where I act as a justice of the supreme court in the State of Delaware, United States of America. I believe this would be a very good opportunity for myself to test how I will decide the cases using my own legal interpretation method (since we start with a clean doctrinal state) and whether I can consistently apply what I've said in this post. Once I've completed the whole course (it will take around 2 months period), I will update again my view on this issue in a separate posts.

On 12 August 2011, the Indonesian Constitutional Court issued its decision concerning judicial review of Law No. 8 of 1981 on Criminal Procedural Law ("Criminal Procedural Law"). You can download the decision here. Under the decision, the Constitutional Court deemed that the definition of a Witness should be amended from "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is heard, seen and experienced by him/herself" to become "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is not always heard, seen and experienced by him/herself".

According to the Constitutional Court judges, the definition should be amended since based on grammatical interpretation, the term "is heard, seen and experienced by him/herself" refers specifically to the criminal case itself. As such, such definition will violate the rights of the defendant to bring witnesses that might support him in the trial process such as alibi witnesses that probably do not see, hear or experience the relevant criminal case (because the criminal case does not occur).

I have to say that this is an issue of simple grammatical misunderstanding and the solution provided by the Constitutional Court creates another problem. Grammatically, there are two ways to read the above clause: (i) the term "is heard, seen and experienced by him/herself" refers specifically to the actual criminal conduct; or (ii) the term "is heard, seen and experienced by him/herself" refers to the testimony/information given by the witness in relation to the case at hand. In cases where we use plain meaning technique to interpret the text of law, we must also rely in the principle that plain meaning approach can only be used when it would not lead to an absurd result. Surely, using the first interpretation will bring significant trouble in practice.

As a comparison, under the US Federal Code of Evidence, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of such matter. This is common sense, a witness can only testify about things that he/she really knows. In line with that, I am certain that the second interpretation would fit better in interpreting the definition of witness under the Indonesian Criminal Procedural Law.

In my opinion, the solution of the Constitutional Court might create an issue concerning the competency of the witnesses. First, the fact that they don't see, hear or experience the criminal conduct by themselves does not necessarily mean that their testimony is always relevant to the case. This will open a chance for the defendant to bring any witnesses that can support him even when there is no merit of such testimony to the case, such as testimony on the character of the defendant. Trial process involves emotion and judges are not robots, and thus a good framing of the defendant is always helpful. Is this good or not? Further evaluation is needed but surely this will depend on our taste of morality and human rights.

Second, in worst case scenario, the generality of the wording used by the Constitutional Court may also be used by prosecutors and polices for using witnesses that do not see, hear or experience the criminal case against the defendant. This is surely absurd, but judging from the absurdity of the solution, I am not surprised if polices and prosecutors exploit this loophole. Time will tell.

Here is another post in Indonesian language on why the Indonesian Legislative (DPR) cannot reject the two candidates for Chief of the Indonesian Anti Corruption Commission (KPK). I must admit, writing in Indonesian language is a lot easier, far, far easier than writing here in English :p.