Rethinking Criminal Justice

this article is published by Hukum Online :

In the Indonesian criminal saga, a mother of two who sends her friends an email complaining about her treatment at a local hospital can be found guilty of libel and face a prison time. This is what happened to Prita Mulyasari. After her email went viral, Prita faced civil and criminal actions and was eventually given a suspended sentence of six months in jail, by the Supreme Court.

Despite strong public opinion favoring Prita, Supreme Court Judges insisted that Prita was guilty of libel against Tangerang’s Omni International Hospital, under the Electronic Transaction and Information Law. The prosecutor in the case was quoted as saying, “I’m just doing my duty in following legal procedure.” When asked why, despite district court acquittals, he insisted on proceeding with Prita’s case.

The prosecutions approach to the case and the Supreme Court’s controversial ruling has raised many eyebrows. Looking at Prita’s situation, one may ask whether her punishment is representative of our so-called “justice value” in Indonesian society and whether Prita’s actions deserve to be criminalized.

However, it is clear that both the judges and prosecutors who handle Prita’s case believe that the central concern of upholding the law and justice is retribution. Followers of this Mesopotamian age doctrine, often see a law as a “tool” to punish people, although punishment must be imposed solely for the sake of ensuring public justice.

This approach to justice explains why prosecutors continued their case against Prita after her district court acquital, even though Article 244 of the Criminal Procedure Code states that no legal actions are available after a district court acquittal. Legal enforcers focused on punishment and retribution are able to avoid Article 244’s limitations by arguing a “legal innovation to ensure public justice” (as stated in Minister of Justice Decree No. 14-PW.07.03 of 1983).

We have seen similar casesof overzealous prosecution. Do you remember the poor illiterate elderly woman who was charged and prosecuted in court for picking up 3 scattered cocoa pods? Or the elderly Indonesian maid who was persecuted for stealing an ox-tail? How about the criminal charges against an elderly widow of an independence hero who was accused of illegally occupying a house owned by the state?

All of these cases lead back to the fundamental question of whether a given act should be punished. It is time to reconsider criminal punishment as a last resort or ultimum remedium.

When legal enforcers were deciding whether Prita’scase should be brought to trial, they forgot to think about the social justice concept of criminal law before resorting to criminal punishment.

What is social justice? In the words of William C Heffernan,an associate professor from the New York John Jay College of Criminal Justice, when we talk about social justice in upholding criminal law, we must ask whether the burdens and benefits of social life have been fairly distributed among members of a particular society.

In a lecture published by the Southern California Law Review, David Bazelon, a former US Court of Appeals Judge, said that “there can be no truly just criminal law in the absence of social justice”.

Upholding criminal justice while considering social justice has important implications for different facets of criminal justice such as criminal procedure, excuses, and justifications.

Former Supreme Court Chief Judge, Professor Bagir Manan seems to agree with this conception of a criminal-social justice system. From the beginning, he argued that Prita’s case must be halted, because prosecutors and judges failed to recognize Prita’s basic rights as a citizen to freely communicate and express her opinion about the hospital’s service.

Integrating social justice principles into the criminal justice system does not mean that the law must bow to public pressure. Legal enforcers, especially judges, must rely on broadly accepted, authoritative criteria to determine what constitutes the law. The difficulty, of course, is that for conceptions of social justice, our legal enforcers have limited authoritative criterion to rely on.

In fact, our legal system is already open tothe possibility of integratingsocial justice concepts. Under the Law No. 49 of 2009 on Judicial Authority, Article 5 clearly states that in deciding a case, judges are entitled to employ social values that are rooted in the public community to resolve acase.

As a legal practitioner, I am no longer shocked by the cases that appear in our beloved country. In my opinion, a poor and non-merit based recruitment process for legal enforcers is the main source of the problem. Please, fix this first before talking about complicated legal issues.

I believe that when legal enforcers are able to employ social justice concepts there will be no more controversial issues such as the Prita and the elderly woman case.

It has become clear that a legitimate, competent and authoritative legal institution must exist in order to build a criminal system based on social justice concepts. Furthermore, the key lies in judges who hold the legal authority to impose a binding decision in a legal case.

It is time to answer my fundamental question about whether Prita’s action of complaining about hospital service via email deserves to be punished. My answer is: it depends on who you are asking.

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