Legal Uncertainty is Caused by Advocates

Author: Sebastian Pompe, Leiden, The Netherlands

Project Manager National Legal Reform Program

In February 2011, one of Jakarta's most prominent lawyers, a favorite of the international community, told a foreign delegation that the main reason for the lack of legal certainty in Indonesia was the refusal of the Supreme Court to publish its decisions.

You often hear this in the legal world. In public announcements
In media publications, the Indonesian interest group generally accuses the courts of legal uncertainty, citing the absence of published court decisions as the main reason.

In fact, in February 2011, there were 22,437 judgments on the Supreme Court's website. That's more than all the decisions of the Supreme Courts of the United States, the Netherlands and Australia in the past decade.

In fact, that's more than the number of decisions rendered by the United States Supreme Court in the last hundred years.

The last decision uploaded was yesterday ( www.putusan.mahkamahagung.go.id/ ). This large collection does not include the published decisions of many other Indonesian courts.

Thus, the Constitutional Court publishes all its decisions on its website (www.mahkamahkonstitusi.go.id), and the Commercial Court publishes all its decisions on paper since 1998 (Tatanusa www.tatanusa.co.id). Judgments published on separate websites of various courts in many cases (see the 4th edition of the Quarterly Newsletter; an overview of all court websites published in March 2011; see Muhammad Faiz Aziz, Mega Ramadhani et al., evaluation court websites). Jakarta: Tatanusa 2011)): For example, in 2010, the religious court of Surabaya issued 2,814 judgments (http://www.pa-surabaya.go.id/) and nearly 340 religious courts published their decisions on their websites.

This includes decisions that have been published over the past decades in journals such as Jurisprudence Indonesia, Varia Peradilan, Hukum dan Pembagunan or Hukum, as well as in private collections such as Chidir Ali, Setiawan or, more recently, the MTI series . Corruption court rulings.

These collections are sometimes important. Varia Peradilan magazine has published (և continues to publish) 5-10 rulings in each issue for over 30 years և is expected to approach 3,000 rulings.

Publicly available court decisions have not always been properly reviewed, but in recent years, particularly in the Supreme Court, their full publication has been delayed.

In short, modern Indonesia has a very large collection of very recently published court decisions.

Why don't lawyers in this country, including some famous people, understand this reality?

This problem is all the more surprising since, as we have seen, the large-scale publication of court decisions is not really new, but has developed more than a decade ago since the beginning of the reforms.

So why should lawyers ignore the amount of legal information they can easily access?

Why did they even go so far as to explain to foreign visitors that these court decisions do not exist, that they are in fact a cause of legal uncertainty?

One conclusion is that if lawyers are unaware of this large number of court decisions, their legal practice probably does not include the review of court records.

In fact, the commentary indicates that the tens of thousands of court decisions currently published have nothing to do with the work of lawyers in Indonesia.

In such a situation, Indonesian lawyers hypocritically complain about the lack of court decisions.

This shows that lawyers are now one of the main reasons for low legal certainty in Indonesia.

The way in which the law is passed, the courts are held accountable for their decisions, requires critical discourse, and it is the duty of lawyers to hold such discourse when they plead in court.

If supporters don't bother to look at published decisions, such critical discourse never occurs, accountability diminishes.

The fact that the Indonesian Bar cooperates with a wide range of published court decisions, even acknowledging its existence, reflects the weakness of the legal profession in Indonesia, which is characterized by professional fragmentation and lack of discipline.

It is understandable that when we talk about jurisprudence in modern Indonesia, it is more about legal institutions, professions than a matter of law. It's also a matter of less litigation, more advocacy.

Of course, the Supreme Court is responsible for maintaining its discipline.

It doesn't really help when a senior Supreme Court justice says that retrospective case law assumes that case law can be as controversial as it has recently been. As far as legal systems go, that's just a mistake - not a very smart statement.

Last month, another Supreme Court justice said, "We have a continental court system, which means we have inequalities in decision-making." This statement shows that the Indonesian legal system has no roots or complete knowledge of what the legal systems are related to.

It's completely absurd. Such statements are disturbing; they contribute to undermining public confidence in the jurisdiction of the Supreme Court and in the entire Indonesian legal system.

Supreme Court leaders need to be increasingly clear about the real meaning of their decisions. The court must establish discipline in its decision-making, actively introduce that discipline to the wider legal community and beyond, and resolutely support that discipline at home.

It's not just about creating palaces. it provides insight into the role and significance of court decisions.

However, in the larger context of bringing the courts to justice, the Supreme Court retains most of its share of the deal.

The publication of decisions is truly impressive, even invisible. In general, the information provided by the courts to the public is greater than that of any other government agency, from court decisions to budget figures.

The most transparent body in the country is the court.

It is the job of the attorney's attorneys to ensure that this information is accountable.

They must analyze և draw up legal decisions, use them in their litigation, refer to them, և develop a disciplined critical discourse with their և courts և. Promoters can't do all of this, they don't read, use, link or talk.

As for the foreign guests, the lawyers even deny that the decisions have been made.

It is shameful. And he points out that the main reason for the lack of legal certainty in modern Indonesia is the fragmented and incompetent representation of Indonesia's interests.

( Summer : http://www.thejakartapost.com/news/2011/03/29/legal-uncertainty-caused-advocates.html )