By: Dr. Iman Sjahputra SH, SpN, LL.M

Actually court is a place to seek a legal justice. However, it is a reality that there is no absolute truth can be accepted by every conflicting person in court. That is the reason sometimes the court conflicting party is not satisfied with the legal decision rendered by the judge in the court. In some cases, this unsatisfied feeling is already there even when the case is still being examined.

In order to prevent the unsatisfied feeling of the parties into the anarchy actions, therefore in each court sitting process it is needed to set up the “fences” to maintain court sitting so that it is remain dignified and obeyed by the conflicting parties. The question is, whether or not the “fences” made is effective enough to keep the court ethical process in the court sitting, so that eventually it is also be effective enough to maintain the dignity of the existing legal bodies?

Having litigation in the court certainly is the final option. We believe that every person who feels his legal right is being offended – even though in the criminal case which actually is more strict since it is a public law and the definition of criminal action cannot be bargained – if there is a possibility to solve the case through discussion, indeed the conflicting parties will choose to take peaceful settlement out of the court. It means that having litigation in court is not always a choice for every one, because aside from costly, it is also energy and brain consuming. For a winning party, a legal decision can be a blessing. On the other side, for the loosing party, the judge’s decision can be a grief.

One example is, the matrimonial case involving Navy Colonel M. Irfan in the Religious Court of Sidoardjo, East Java, which was ended by the killing of two people in the court room. The two victim were dead from the knife stabs by Colonel Irfan to the ex-wife of the Colonel (both having matrimonial asset case) and one of the judges member whose having legal practice for a long time in such court. Colonel Irfan’s motive is still being investigated by the Police.

Obliteration.

What we need to pay attention in this case is not about the judge decision that might have made the Colonel unsatisfied. But furthermore, it is the question whether or not there is still a sense of dignity in our court? Is the court chamber still safe as a place for justice seekers of the citizen of this republic? Can we refer the case in the Religious Court of Sidoardjo, East Java, as the reflection of the obliteration of the people’s trust toward the court role to dig the legal justice values in this country? And there are still many other questions related to the court that we need to answered, aren’t they?

It is a certain thing that the incident in the Religious Court in Sidoarjo, East Java, is never to be expected by any of us. Furthermore, in fact the judge in examining the case is free, independence and responsible. The Law on the Judicial Affairs Powers No. 4 Year 2004 has stipulated that the judicial affairs powers is the state independence power to establish judicature in order to enforce the law and justice based on Pancasila principles for the organization of the Republic of Indonesia state (Article 1).

While Article 33 of said law mentions that in the running of his duty and function, the judge shall maintain the judicature independence. Therefore the act of intimidation, terror and anarchy in whatsoever form is not permitted towards the case hearing judges. But it is peculiar that what happened in the practice it the opposite. It is very often for us to see the demo, yelling and shouting in the court room or the throwing of things towards the judges.

Contempt of Court.

Sometimes such unethical actions are done purposely to influence, frighten, press down and force the judge in examining the case. Actually legally such action can be categorized as a contempt of court which means as an action that is insulting the court. But what the court can do? Even though in the KUHP (Criminal Code) and KUHAP (Criminal Procedural Code) have regulated many articles regarding the penalty towards whoever conducting the contempt of court in the court are. For example, Article 217 KUHP states that whoever creates a disturbance in the court sitting can be punished for 3 weeks imprisonment and fines, and Article 218 KUHAP regulates about the violation of the court orders.

However, in practice these clauses are not yet effective because there is judge firmness in applying it. Therefore we are wondering whether or not we really need the contempt of court law? Is it an urgency to regulate the same? How to regulate it?

For example, a regulation that restrict the witness or accused to present his opinion in digging the material truth cannot be regarded as an insult/disobedience towards the judge panel. Furthermore, the defense made by the lawyer in the court room cannot be regarded as disturbing the court orders. Also the accused silence protest for not answering the questioning from the judges cannot be regarded as an insult.

It is not an impossible thing if the judges’ imparting things or actions can make the accused upset. Therefore some strange things can be happened in a court sitting. Therefore in case we need a contempt of court law, we still need to watch closely of how the contempt of court criteria shall be regulated, so it will not create the “uncomfortable” things and the judge is not allowed to arbitrarily apply it. Of course the judge has the trial authority, but it does not mean that the judge can do “as he likes” towards the accused defender and the court visitors. Because one of the principles in the procedural law is that the court sitting is open to public as arranged in the Article 19 of the Law on the Judicial Affairs Powers.

*) Writer is an advocate domiciled in Jakarta who handles many Trademark, Patent and Copyright cases.