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Jurisdiction is Indonesia. However, for comparison, I would love to know if this works in other countries too.

I have learned that there are 2 main laws in the world. Civil and common. In both cases, legislative make laws most of the time. Judicial branch however, can modify the laws. As far as I know.

For example, US, that practices common laws, regularly make laws. I've heard this bills and that bills. In US, that practices common laws, judges can modify, interpret, or even delete the laws. However, the judges, as far as I know, must say that the law is not constitutional or something. I am not sure I am correct here.

Indonesia that practices civil laws also make laws. However, sometimes the laws are modified by the judicial branch.

For example, Indonesian narcotic laws give 4 years minimum sentences for anyone possessing ganja or MDMA.

Any person which is not entitled or against the law to plant, maintain, own, keep, control, or provide Narcotics Group I not in form of plant shall be sentenced for imprisonment minimum 4 (four) years and maximum 12 (twelve) years and penalty minimum Rp. 800,000,000.00 (eight hundred million rupiah) and maximum Rp. 8,000,000,000.00 (eight billion rupiah).

Notice the law has no minimum amount but have minimum jail terms of 4 years. This law is used by cops to demand bribes from many users. This law is also used to send many users to jail. The thing is virtually all narcotic users must have stored, control, and/or buy narcotic.

So many people that are caught with say .2 gram of meth spend a minimum of 4 years in jail. In practice, rich people just pay cops or use some loopholes. The law is also pretty peculiar that it requires physical evidence.

However, this law is heavily modified by Indonesian supreme court.

https://dfcsurabaya.files.wordpress.com/2010/06/sema_04_2010-narkotika.pdf

This put some minimum amount of substances possessed before article 112 can be applied. Basically if physical evidence for say, LSD is below 2 grams, then the user is sent to rehabilitation instead of jail.

For example, under the original law, anyone caught with 0.1 gram LSD will have to go to jail for a minimum of 4 years. Under that SEMA, a person has to be caught with 2 grams of LSD first before that can happen.

How can a judicial branch change the law like that? Or am I missing something? Is this still within "interpreting" the law instead of modifying the laws? How does it work? Did the supreme court simply give "guidance" on how to enforce the law instead of nullifying the laws? I mean in US some laws are simply not enforced right. So is this like okay, we're not enforcing this law if physical evidence is small? Or are the supreme court judges simply modify the law?

Is it common practice that judicial branch modify the laws without having to show that the original law is unconstitutional or anything. Does the judicial branch in Indonesia have power to do so?

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  • 1
    Note that courts must take into account all laws, and resolve conflicts. You can't cite a single article of a single law, and blindly assume that there's no conflict. You already mention "unconstitutional", but laws can also have conflicts at lower levels.
    – MSalters
    Jun 22 at 14:49
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The question seems to somewhat misunderstand the role of courts in the

The United States uses a common-law system, ultimately derived from the law of Great Britain as it was at the time of the US Revolution, and thus incorporating its history largely derived from the practices of English Courts. There was a period in this history where much new law was made by judges, although a great deal of it was also made by statutes, that is by Parliament.

In theory such judge-made laws merely "discovered" what the law "had always been" but in practice judges made much new law.

Since then the incidence of judge made law has greatly declined in the UK, and has declined even more in the US. I think that it is fair to say that Judges in the US do not now make new law with any frequency.

There is, however, a major exception to this. In the US, the Federal Constitution is the "supreme law of the land", and no federal or state statute, regulation or practice may stand if it does not conform to relevant requirements of the federal Constitution. (Nor may any local ordinance, regulation or practice.)

But the federal constitution is written mostly in rather broad and general terms, requiring for example that "due process of law" be provided, but but not spelling out in detail what that means. It is therefore up to judges, and particularly to the judges of Federal appellate courts, and most particularly the US Supreme Court, to say when a law, regulation, or practice is in violation of some constitutional requirement, and what must be done to avoid such conflict.

One example is the Miranda decision (Miranda v. Arizona, 384 U.S. 436 (1966) holding that when admissions or confessions by criminal suspects questioned while under arrest were admitted into criminal trials, this violated the defendants' rights against compelled self-incrimination unless they had been advised of their rights under the law, including the right to remain silent and the right to legal counsel. This introduced a new substantive rule of law as a way to enforce a long-existing constitutional provision.

The Wikipedia article says:

Miranda was viewed by many as a radical change in American criminal law, since the Fifth Amendment was traditionally understood only to protect Americans against formal types of compulsion to confess, such as threats of contempt of court. It has had a significant impact on law enforcement in the United States, by making what became known as the Miranda warning part of routine police procedure to ensure that suspects were informed of their rights. But the concept of "Miranda warnings" quickly caught on across American law enforcement agencies, who came to call the practice "Mirandizing".

A more recent example is the case of Obergefell v. Hodges, 576 U.S. 644 (2015) in which the US Supreme Court held that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment together guaranteed a right to same-sex couples to marry. This again was a new substantive rule, significantly different from the previous practice for most of US history, as a way of defining and enforcing long-existing constitutional provisions.

Related to these are cases where a law, or a provision of a law, is held to be unconstitutional, and thus not a valid law at all. An unconstitutional law may not validly be enforced. Such a case was West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) which held that laws requiring students to recite the Pledge of Allegiance (flag salute) in schools were unconstitutional.

These sorts of actions do not occur in those common-law countries which do not have a formal written constitution that is superior to laws passed by the legislature. That is the case in the UK, for example.

Aside from that sort of case, where constitutional rights are being asserted or constitutional requirements are being enforced, the main power of US judges over the law is to interpret the law (both statute and regulation) when it is unclear or ambiguous, and to decide exactly what it will mean and how it will be applied. These interpretations can be changed or completely reversed by later legislative action, that is by new laws passed by Congress or by a State legislature. This sort of interpretation occurs in all common-law countries, and also in civil-law countries, although to a somewhat lesser degree in civil-law countries.

In general, civil-law countries tend to spell out their law in more specific detail in laws passed by the legislature, leaving somewhat less room for interpretation by courts and judges.

By the way, my understanding is that Indonesia is not strictly a civil-law country, but uses a mixture of systems. The Wikipedia article "Law of Indonesia " says:

Law of Indonesia is based on a civil law system, intermixed with customary law and the Roman Dutch law. Before the Dutch colonisation in the sixteenth century, indigenous kingdoms ruled the archipelago independently with their own custom laws, known as adat. Foreign influences from India, China and Arabia have not only affected the culture, but also weighed in the customary adat laws.

I cannot speak to the specifics of how the courts of Indonesia have interpreted the law on drugs in that country.

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  • The adat laws are not used in cities and as fara s I know have little power. Also even in countries that use common laws like US, most laws are from statues like in civil laws.
    – obfuscated
    Jun 22 at 1:52
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Being a civil law regime, courts in Indonesia do not rewrite the law, and rulings are ad hoc. The Constitutional Court has the exclusive power to rule on the constitutionality of a law, as in this example (English summary) on Article 268 paragraph (3) of Law (8) 1981 regarding the Law of Criminal Procedure. The (separate) Supreme Court of India issues "circular letters", as in your example. That letter did not change the law, it invalidated a previous letter (Surat Edaran 7 (2009)). They can find that a law is formally invalid under the power granted in Art. 32 of Law 14 of 1985:

The Supreme Court has an authority to declare invalid all legislation of the lower level at reason that they are contradictory to the higher legislation.

The decision on statement on invalid legislation may be adopted in relation to the examination in the cassation level. Revocation of a legislation declared invalid shall be made immediately by the relevant agency.

This is very different from the common law style of "rewriting" i.e. assigning more specific meaning to legislation or prior case law.

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  • And yet, that is exactly what supreme court in Indonesia seems to be doing. Rewriting the law
    – obfuscated
    Jun 22 at 1:53
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So I don't know what legal system Indonesia uses, but since you brought up US Law, the answer is "No" the law need not be unconstitutional to be struck, though this is a good way to get it struck. One common way to strike a law is by saying that there is a conflict between a state law and federal law (As the former cannot override the latter. Since the Constitution is the supreme law of the land, it's not only federal, but federal law that all other federal laws must comply with.).

And not all supreme court cases in the U.S. are of a constitutional nature, since SCOTUS is the court of original dispute for all cases between states or any admiralty laws or any cases between the executive and legislative branch (This happens a lot, especially if the branches are controlled by two different parties).

The reason this happens strongly in Common Law is because the core principle of Common Law is "Stare decisis et non quieta movere" (To stand by the decision and not disturb the undisturbed). Basically this means that if a judge rules on a case with a particular fact pattern, then all judges in that jurisdiction must rule in that fact pattern unless a higher court rules otherwise. This means that the laws written don't have to be broadly written to have broad coverage. You can write text books on what you can and cannot due under The Sherman Anti-Trust Act, which is an impressive feat, given that the actual law is three sentences long.

Similarly you need not describe what acts constitute a crime for Common Law to rule on the crime. For example, my particular jurisdiction has no codified definition of Murder... the murder laws in my state only give the sentencing guidelines. Murder has been well defined by Common Law cases in my state that no one thought to actually write it down... they only wrote what to do about it when we find it.

And of course, not all Common Law nations have constitutions (The UK and New Zealand are both common law nations and neither have codified constitutions, when compared with India, The United States, Canada, and Australia (which does have a constitution, just not contained to one document).

Stare D

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  • It is not at all correct that cases where the original jurisdiction of SCOTUS is invoked "happen a lot" they are now quite rare and have been for well over 100 years. Many disputes between executive and legislative branches are herd first at the district count level. Jun 21 at 18:08
  • The Wikipedia aricle Original jurisdiction of the Supreme Court of the United States says: "The number of cases heard pursuant to the court's original jurisdiction 'has always been a minute portion of its overall caseload' generally including only one or two such cases per term. 'Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing.' " Only in cases between states has SCOTUS exclusive original jurisdiction. Jun 21 at 18:23
  • 1
    I think there is a clerical error that omitted some of the final quotation in your post.
    – ohwilleke
    Jun 21 at 19:06
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Short Answer

No federal court in the U.S. would do what this particular ruling did without express statutory authorization to do so. But that does not mean that this ruling is outside the realm of what it can be proper for a judicial branch to do.

U.S. courts make similar, somewhat arbitrary rules in other subject matter areas under their general court rule making authority. It makes more sense to see this kind of ruling in a civil law country like Indonesia than it does in the U.S. or in other common law court systems, because the highest appellate courts in civil law countries are not so deeply tied to the idea that it interprets the law solely through resolving actual individual disputed cases as the U.S. court system is as a matter of constitutional law.

Also, the Indonesian Supreme Court does not have the authority to declare that legislation is unconstitutional (a power called judicial review). Instead, this power is limited to a separate constitutional court, just as it is in most civil law countries.

Long Answer

How can a judicial branch change the law like that? Or am I missing something? Is this still within "interpreting" the law instead of modifying the laws? How does it work? Did the supreme court simply give "guidance" on how to enforce the law instead of nullifying the laws?

This is still interpreting the law.

The job of the judicial branch is to carry out the legislature's intent in adopting it.

One principle of statutory interpretation is that de minimus violations of the law are not sanctioned by the courts.

For example, most large denomination U.S. currency (e.g. $20, $50 and $100 bills) in the U.S. has trace amounts of cocaine on it. But, laws prohibiting possession of cocaine were not intended to prohibit the unintentional, unknowing possession of trace amounts of cocaine so small that they could not have any meaningful physiological effect.

Similarly, if a single hair on the skin of a person crosses a property line by 0.1 millimeters, this isn't considered trespassing in a sense that can be enforced in court.

Another principle of statutory interpretation is that appellate courts are supposed to provide guidance to lower courts regarding how they should exercise their discretion.

In civil law countries, the courts have a role that is closer to that of an administrative agency, than in common law legal systems. They are structurally more a part of the larger governmental bureaucracy than they are a completely separate body, especially in public law cases (i.e. lawsuits between private parties and the government) and in criminal law cases (i.e. lawsuits brought in the name of the government arising out of misconduct that is usually between private parties).

The law of controlled substances prohibitions, in particular, has always had a particularly administrative character to it, because the process of defining what constitutes a controlled substance requires a government agency to apply chemistry in a way that defines what substances are and are not prohibited in a sensible way.

For example, ordinary poppy plants possess trace amounts of opioids and the human body itself also creates opioid-like chemicals, but those aren't intended by the legislature to be illegal.

Even when it makes regulation styled "circular letter" ruling, the Indonesian Supreme Court is still acting in a judicial manner to carry out the legislature's intent in enforcing the criminal laws it adopted, rather than acting like a legislature which makes decisions purely based upon which factions have the most votes to support which policies.

Also, the Indonesian Supreme Court, like most courts in civil law countries, and unlike almost all U.S. Courts (federal and state), does not have the power of judicial review (i.e. the power to declare a law unconstitutional and invalidate it). But, in 2003, Indonesia did create the Constitutional Court (Mahkamah Konstitusi) which does have this power.

Is it common practice that judicial branch modify the laws without having to show that the original law is unconstitutional or anything. Does the judicial branch in Indonesia have power to do so?

What the Indonesian Supreme Court did in this case is more in the nature of a government regulation within a body of law (the criminal law) that is in its primary jurisdiction, which is something that the U.S. federal courts generally do not do without express statutory authorization, because U.S. federal courts (and most, but not all, state and local courts in the U.S.) are limited to deciding individual "cases or controversies".

But, since a civil law system is not wedded to the idea that legal interpretation from the courts comes entirely from precedents set in individual cases, and indeed, does not, as a general rule give decided resolutions of particular cases the force of binding precedent, it is less out of character for a civil law supreme court to make a ruling like the one linked that essentially establishes a government regulation to supplement the interpretation of its controlled substances law that applies, in general, rather than in a particular case, like other government regulations, much like a government agency might decide if a particular chemical formula does or does not qualify as a controlled substance.

U.S. courts have similar regulatory authority, but mostly in procedural matters, for example, in setting deadlines for parties to take actions in the court process. For example, the U.S. courts routine set an arbitrary number of days after a case is decided, to file an appeal.

Similarly, in U.S. law, the substantive law states that indigents are entitled to a waiver of court filing fees and to representation by a public defender, but almost all U.S. court systems operationalize that legal requirement by passing a court rule that is basically a regulation, stating that the cutoff for being an indigent is $X per year of income defined in a particular way.

In the U.S. "sentencing guidelines" at the federal level are decided by the U.S. Sentencing Commission created by Congress, but in some state courts, sentencing guidelines are established by the courts as a form of court rule. The action of the Indonesian Supreme Court here can be viewed as a court rule establishing a sentencing guideline for lower courts, which isn't quite a pure interpretation of the law, but is within the scope of the judicial branch's job of figuring out how to adjudicate whether people have violated the law and what the consequences of a violation of the law would be.

During the COVID-19 pandemic, many U.S. courts have issued regulation styled decrees governing how to address common issues related to the pandemic, such as how to reconcile the right to a speedy trial for criminal defendants, and the inability of the courts to hold in person trials due to the pandemic.

Of course, in the case of a national supreme court, like the supreme court of Indonesia, another factor comes into play. This is that there is no one in a position to overrule the decision except the legislature or the constitutional court. If the legislature doesn't change the Indonesian Supreme Court's interpretation (and the constitutional court doesn't overrule it), this interpretation has the force of law, because a majority of the judges on the Indonesian Supreme Court said so, even if there is a theoretical argument that is shouldn't have made a ruling like the one that it did.

If the Constitutional Court (Mahkamah Konstitusi) did determine that the Indonesian Supreme Court overstepped its bounds, it is likely that the Indonesian legislature would either formally give the Indonesian Supreme Court the authority to do what it did, or would adopt a law restating what its invalidated regulatory ruling did.

The Indonesian Supreme Court has a strong incentive to issue rulings in a broad regulatory style because it receives far more new cases each year than it has the resources to rule on, and has historically had difficulty getting lower courts to honor its rulings, so efficiently resolving many cases at once in a clear manner is something it is under strong institutional pressure to do.

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  • So what you are saying is that the SEMA or the supreme court ruling that the physical evidence must have exceeded certain amount is not a rewrite or a modification of the law. However it is what the law is "originally intended". That is, the supreme court rules that the law against possession only apply to those who have substantial amount of drug. The reason I ask is because many people went to jail for a minimum of 4 years due to that law against possession and many judges in Indonesia obviously, don't think that way.
    – obfuscated
    Jun 22 at 2:02
  • @obfuscated Indonesia has a well known problem with lower court judges not following the law established by the Indonesian Supreme Court and the legislature. This is a deep institutional problem and doesn't have an easy solution.
    – ohwilleke
    Jun 23 at 22:50
  • Is it legal for them to do so? Are you aware of issues? So judges can do so with impunity?
    – obfuscated
    Jun 24 at 9:30
  • It is not legal for them to do so. I am aware of these issues. Judges do it with impunity anyway, the usual remedy for a wrongful ruling but a lower court judge is an appeal and not being given priority for a promotion to a higher court.
    – ohwilleke
    Jun 24 at 14:16
  • So bad judges get promoted more slowly. And that is all. If the bribe is big enough than the judge is better off getting bribes
    – obfuscated
    Jun 29 at 5:23

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