Based on Black’s Law Dictionary 9th Edition, the definition of dissenting opinion is:
“An opinion by one or more judges who disagree with the decision reached by the majority. — Often shortened to dissent. — Also termed minority opinion.”
Which, if translated into Indonesian, is the opinion of one or more judges who do not agree with the decisions reached by the majority.
The doctrine of dissenting opinion was originally born and developed in the Common Law or Anglo-Saxon legal systems, such as in the United States and the United Kingdom. Therefore, it is not surprising that within judicial decisions in countries that adopt the Anglo-Saxon system, such as the United Kingdom and the United States, as well as other countries that adhere to the Anglo-Saxon legal system, dissenting opinions are commonly found.
In the Common Law system, judges are bound by a precedent system, which means that the judge’s decision must follow the decisions of previous judges on similar cases. Therefore, in each decision, the judge must explain the consideration and argument why the decision is made for newer judges to understand the way of thinking of the previous judge in making the decision that would bind as a precedent. In other words, Anglo-Saxon judges in the Common Law system must give reasons or considerations why a decision is made given that there are several different available alternatives, likewise, if there is a difference of opinion, a judge must provide considerations that underlie his/her disagreement with the view of his/her colleagues.
On the other hand, in judicial practices of the European-Continental system, such as the Netherlands, France, Germany, and others, the judge’s decision does not have a binding legal force which has to be followed by other judges. The judge’s decision is not presented as a point of view or opinion. Therefore, there is no obligation for the judges to present the arguments of their reasoning. Only the most important arguments put forward are called ‘apodictish‘, while the arguments from minority voices are not included. But as time changes, now this era requires the principle of openness to explain the reasons (motivering) of the judge’s decision, including those who are outvoted, the doctrine of dissenting opinion is then adopted by countries that adhere to the European-Continental legal system.
In Indonesia, the term dissenting opinion began to arise because of corruption cases handled by the Supreme Court. One of the most fundamental changes in the revision of the judicial power law is the provisions of the institution of dissent, which are very different from the provisions in the previous law. Law Number 48 of 2009 concerning Judicial Power states that in a deliberative hearing, each judge must submit a written consideration or opinion on the case that being examined and become an inseparable part of the decision. This provision further states that if in a deliberative hearing an agreement cannot be reached, then the opinion of the judge that has the different considerations must be included in the decision. The need for judges to include different judges’ opinions in decisions is also regulated in Law Number 5 of 2005 concerning the Supreme Court, namely Article 30 Paragraph (2) which stipulates that in deliberations to take decisions each Supreme Court judge must submit his/her consideration or written opinion towards cases that are being examined and become an inseparable part of the decision. Next, in paragraph (3), it is added that, in the event that deliberation has not reached an agreement, different opinions of judges must be included in the decision. In the case of deliberations regarding decisions to be decided, there are several options: (1) they agree to issue the decision; (2) if a discussion is not agreed upon, then a vote will be held; and (3) must also be included in consideration of the decision, the opinion of the judge who does not agree is called dissenting opinion
In its development, based on the laws and regulations on judicial power, the judges (minority) who disagree with the results of the judicial deliberations meeting can include dissenting opinions in (and become an inseparable part of) a court decision. Dissenting opinion can be considered as one of the parameters of the quality of a court’s decision in fulfilling a sense of community justice because, with the Dissenting Opinion mechanism, the public can assess the quality of thought of each judge and know the “inner thoughts” that occurs during a judicial deliberation meeting which is one of the crucial stages before a court decision is issued.
An example of a dissenting opinion can be seen in the decision of Bulukumba District Court Number 150/Pid.B/2013/PN.BLK, which states that the Accused has been legally proven and convincingly guilty of committing a crime of “fraud as a continuing act”. Then the Panel of Judges sentenced the Accused to prison for 8 (eight) months. In its consideration, the judge was of the opinion that the actions taken by the Accused constituted a crime that still had a connection with the previous crime that had been declared proven in a court decision that had permanent legal force. Based on that, the act must be seen as a continues act and did not violate the principle of ne bis in idem. Related to this, the Panel of Judges has a dissenting opinion regarding the interpretation of the legal principle of ne bis in idem and the civil rights of victims’ witnesses by Judge Member II named Bambang Supriyono, S.H.
Another example can be seen in the Decision of the Constitutional Court Number 21/PUU-XII/2014 on Judicial Review of Law Number 8 of 1981 concerning Criminal Procedure Law related to the interpretation of sufficient preliminary evidence and designation of a suspect as an object of pretrial. The Panel of Judges stated the phrases “preliminary evidence,” “adequate preliminary evidence,” and “sufficient evidence” in Article 1 number 14, Article 17, and Article 21 paragraph (1) of Law Number 8 of 1981 concerning Criminal Procedure is contrary to the 1945 Constitution of the Republic of Indonesia.
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES