The role of law-faculties in ensuring legal consistency among 5 million court decisions per year…
On Wednesday, the 5th of December 2018 the President of the Hoge Raad (the Netherlands Supreme Court) professor Maarten Feteris held a key-note speech for 105 deans from law faculties all over Indonesia. Professor Takdir Rahmadi, Deputy Chief Justice for Development of the Mahkama Agung (the Indonesian Supreme Court) and Professor Adriaan Bedner from Leiden University in the Netherlands also gave a presentation. The presentations were followed by a discussion and a joint declaration by deans of Indonesian law-faculties to apply the study of case law in the teaching process at universities. To see more on this event, watch this vlog from Dio Tobing (Senior Policy Officer of Politic Affairs Netherlands Embassy).
105 Law faculties were represented by 53 female 56 male attendants
The key message: Importance of legal certainty
In his key-note speech the president of the Hoge Raad articulated the importance of legal certainty for citizens and businesses to prosper. Without legal certainty, the decisions made by courts are unpredictable, and it will be difficult for businesses to make thorough decisions on whether or not to invest. With Indonesia having the potential to join the group of 7 largest advanced economies in the world (G7) in the near future; the ease of doing business will become of greater importance.
But how to make court-decisions predictable and consistent? In a country, with 909 courts (District + appellate) nearly 8,000 judges and approximately 5.5 million cases submitted per year (2017) this is not an easy task. Different religions and different customary law (adat) in almost every region give an extra bonus to this challenge.
As Adriaan Bedner, Professor of Law and Society in Indonesia at Leiden University (the Netherlands) explained; before judges determine the outcome of a case they make a thorough analysis of legal sources such as: customary international law, legal treaties, the constitution and legislations.
But, as Bedner explained, to ensure consistency and predictability of the law, court-decisions of similar cases should also be analysed, including those decisions of the supreme court.
Logic, but not easy
Until recently court decisions in Indonesia were not easily accessible online. As a result, law faculties mainly taught the theory of law and the existing legislations. The interpretation of the law or case law has not been an integrated part of the curriculum, yet.
However, as professor Takdir Rahmadi, Deputy Chief Justice for the Development of the Mahkamah Agung (Indonesian Supreme Court) explained, with the recent launch of the website 'Direktori Putusan' over 3 million (!) decisions can be accessed and analysed online.
With the current workload and the influx of cases, judges unfortunately do not have the time and resources to analyse and categorize all these cases.
The role of Academia
And this is where the academia could play a huge role. Prof Takdir requested the deans in the room to support the Mahkamah Agung and indirectly Indonesian society as a whole with the further analysis and categorization of the cases. Through this analysis, the existing case law could become more transparent; helping the judges with drafting the decisions on the one side and providing predictability of the law for society on the other.
Bedner also explained that in order to ensure that the next generation of judges are accustomed to using case law in their decisions; the faculties could play a major role in providing its law students with the necessary skills and methodologies to interpret case-law. He added: “teaching case law not only contributes to a more just society; it also adds a lot of fun for the students”.
Where the morning session mainly addressed why case law should be taught at law faculties, the afternoon session consisted of a debate among the leaders of law-faculty associations on how case-law could be further addressed in legal education.
A panel session was held among the following speakers:1.Prof. Dr. Ade Saptomo, SH., M.Si - Chair of the Association for deans of law faculties of private universities (Left)
- Prof. Dr. Farida Patittingi S.H., M.Hum. – Chair of the Association for deans of law faculties of state universities (2nd Left);
- Parulian Paidi Aritonang, S.H., LL.M, Vice dean of the law faculty of the University of Indonesia (UI) (3rd Left);
- Dr. Yanti Fristikawati, S.H., M.Hum. – Dean of the law-faculty of Atmajaya University (Right);
- The panel session was moderated by Dr. Andri Wibisana from the law faculty of UI.
The panelists each reacted to four short video messages of the deans of law faculties from Maastricht University, The University of Utrecht, the Vrije University and Leiden University. Each of the deans explained on how case law is being taught in the Netherlands and what kind of resources are used, such as for instance, a compilation of the most important case-law.
Afterwards, it became clear that the panelists understood the importance of integrating case law in their curriculum. The debate among the panel was mostly around whether separate subjects should be developed, or whether the analysis of case law should be integrated in all courses. It also became clear that more literature should be developed with a compilation of case law as this is currently non-existent at Indonesian Law-Faculties.
And to crown it all; the present deans signed a joint declaration which stated that “in order to respond to the challenges of the quality of graduates and the learning process at law-faculties we support and are willing to apply the study of case law in the teaching process on each of our law-faculties. To further support this purpose, we encourage active cooperation with different state agencies, particularly the Supreme Court and the Constitutional Court”.
The seminar was organized at the occasion of the visit of the President of the Hoge Raad of the Netherlands to the Mahkamah Agung of Indonesia in the framework of the Judicial Sector Support Program-JSSP.
The seminar was organized by: University of Indonesia, Atma Jaya University, International Development Law Organization-IDLO and Center for International Legal Cooperation-CILC.