INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016
development must be derived from human rights values , and the government must make laws or policies that respond to social needs ( Donnelly , 1985 , 29 ). In other words , the human rights position is higher than the law and state interests , and to achieve civilised development both human rights and development theory must be seen as fundamentally complementary and mutually reinforcing at all times .
A second person whose ideas and insight changed the performance of the Supreme Court in general , and judges and justices in particular , is Bagir Manan . 31 Manan was being stamped as a conservative-legalistic jurist . However , he rejected the accusation by saying that the law is not merely wording , but also an understanding . This does not necassarilly mean that he only considers formal written evidence in court proceedings ; the judge ’ s tool in court is his reason , used through law-finding processes either to construct , sublimate , interpret or make the law . These processes are inherent in judicial discretion ( Manan , 2011 , 23 ). However , he still oppossed the over-exposure of sociology to legal reasoning processes . Sociological facts are just one of the instruments used by judges to understand the subject matter of a case ; they are needed to compile a satisfied judge ’ s decision . However , sociological facts must not negate legal consideration . 32
With regards to pluralism , Manan considered it a universal phenomenon because it was a logical consequence of living and sharing a world where everyone is different . Pluralism not only manifests in a cultural setting , but also occurs in social and economic settings . The state in general , and the judiciary in particular , respond to pluralism by exercising affirmative action policy , which is a responsive policy aimed at balancing the bargaining power between a marginalised and a superior group . Judges also have an obligation to exercise this policy , because normatively affirmative action is a manifestation of the social justice principle , explicitly stated in the Constitution . However , there is a difficulty in implementing this policy in the judiciary , because Indonesian judges are doctrinally educated by a strict dichotomy between public laws , including constitutional law , criminal law and private laws . Judges who specialise in either criminal or private laws can rarely connect legal issues with constitutional issue , which is why the court ’ s decisions are mostly poor in constitutional reasoning . 33
Manan did not wish to preserve the pristine living adat laws , but rather supported a gradual modernisation of indigenous peoples and their laws . With a significant modernisation , living adat law can gradually change , either horizontally by blending and mingling with other religions or perspectives , or vertically , through both legislations and court decisions . The judicial institution has a role to modify and contextualise the living adat law . 34
Despite his kind responses to living adat law , Manan still puts the state judicial institution and its judges at the centre of legal development and enforcement , a typical structuralist ’ s paradigm .
31
He is a former Chief Justice of Supreme Court . He was rather conservative compared to his colleague , Mahfud , who was a former Chief Justice of Constitutional Court , and ex-politician .
32
Interview with Bagir Manan , Jakarta , 20 March 2014 .
33
Ibid .
34
Ibid . 115 | P a g e