Goodbye Jogja : Part IV – The Faculty of Law

IV                   THE FACULTY OF LAW

the Community of International Moot Court: Charter Ratified

Finally, I entered the faculty of my dreams. Learning from my mistake two years earlier, I actually tried my best to study. I planned to dedicate the last three months to study but that didnt happen. But on the last two weeks, that was really a huge battle! Helped by James and Agnes, I studied day and night during that time.

An interesting experience happened while waiting for the exam time. The test would start at 9.30 am but I –along with most of the other test participants—have arrived since around 8am. There was this kid from Banyuwangi (son of a regional parliament member) whom was so desperate that he literally asked almost everyone in the area to teach him maths. Seriously? A competitor asking for help, while everyone else was having trouble with themselves? But I saw him ask almost everyone before reaching me (I sat in such a position that he had to cover more than two-thirds of everyone there to get to me).

Among so much that my dad had taught me, was that teaching others will help enhance your own understanding on the subject. But that was not in my mind. I am good at maths, and this person was desperate. How evil am I not to help him? I then found out that he was a direct competitor. When my application options were Law, Governmental Science, and International Relations, he opted for Governmental Science. Not to mention, he has opted that he would pay IDR 20 millions uang masuk if he gets in. Thats like more than twice the amount I opted!

I gave him one of the KFC Twisters I bought (yes, I bought three) because he told me that he has not eaten breakfast yet and he was trembling and panicking. Within the time remaining, I tried my best to teach him what could be taught. It was very unfortunate that he did not pass the test. However, I felt really lucky that I got in my first choice which is Law.

It was not as I imagined, though. My first class on Monday, 9am, was Introduction to Legal Science. Mrs Retno Supartinah lectured there. Going through my first years of law was very VERY difficult. All I could get is fragments and pieces of information which I ended up having to memorize –while memorizing like that is my weakest point. At the time, I just didnt get it. Even when I entered the department of International Law which I have dreamed about for so many years.

Then, the usual distractions came. As always, debating related events come every once in a while as my career in coaching and adjudicating escalated, as well as competition management in the region. Next, came a new activity which was Model United Nations. It uses my debating skills as a very basic material, but I can not use those skills as it is. I must modify and adjust it to the necessities of MUN.

Going to NTU Model United Nations (Singapore) with such a splended delegation: Qisthi, Dida, Enja, Moco, and Stephen, I learned so much new things which then also enhanced my debating skills. Unlike debating where you have to stick to your stance and can unleash the fullest extent of your creativity in public speaking, MUN requires us to negotiate (sometimes you take, sometimes you give), while maintaining an elegant and controled manner of speaking and use of language.

Returning from NTUMUN (in which I spent half of the conference time in the toilet DAMN YOU DOUBLE PROSPERITY BURGER), I only went to three local MUN events but won best delegate at all three of them. People always say that research is very essential in MUN, but I did research in neither of them. Not that I am being cocky, nor do I actually think that research should be dismissed. But the way I won those awards was through other ways, really disgusting and sly tactics in conduct of diplomacy and public speaking.

This activity made me realize that there is so much more to convincing people than mere logic. For example, in UGM Diplomatic Course and Table Manner 2010, there were two big blocks fighting against each other. One of them was led by my delegation (Spain), and the other was by Malta. Both of our draft resolutions want the same thing! We want to support the Greece Bailout and to accompany that with an austerity package. Then what was the difference?

Their draft was made with microsoft word, many pages, and printed out for everyone since mid way of the conference. It was very neat and comprehensive. How about the one that I and my partner (Aulia) made? It was handwritten with a pencil, with half a folio paper I found under my table, and we forgot to put a preamble. But my draft got majority and passed, Malta’s did not pass. F*ck logic, right?

As I have explained in the section of debating before on the importance of manners and style. It was from MUN that I learned about all this and tried to combine them. In fact, I have experimented on this before an audience of over 100 people in a debate workshop (UMY, 2011). We did a debate exhibition on euthanasia with outrageously bad arguments, I myself brought an argument which is generally even against most people’s conscience and morality (I said its a doctor’s duty to kill people). Rifky, by the way, went story-telling about a doctor named John for his entire speech with practically no arguments at all other than “John became a doctor because his father died of cancer. How would he feel if he is forced to kill his patients?”.

But the instructions to the exhibitters were to fully utilize their public speaking skills to the furthest extent possible. Roughly 95% of the audience actually thought it was a good debate, and gave best speaker to me and Rifky. Really, adjusting to the audience’s feelings actually worked. We constructed our arguments in such a way and manner that we appealed to their emotions to easen their mind to accept our (brutally-flawed) logic.

However, it was not until the end of 2010 when I had a life-turning experience. I was called to enter the international humanitarian law moot court team. Unlike national moot court competitions where we develop our own scenario and have a team of almost twenty students to perform a drama simulation of a court proceeding, this is more like a debate. Two teams will meet face-to-face, one as prosecutor and one as defendant, to either prosecute or defend an alleged war criminal before a tribunal. This is because my competition simulated a criminal trial. Other international moot courts could play as applicant vs respondent etc. Then we will plead before a panel of judges, where each of us must speak for around twenty minutes and the judges may interject at any time they please –which is a challenge way beyond debating.

What happened here was just too bizarre to be true. After a few weeks of practice, I was asked “what are the sources of international law”. I mentioned a few, and some of them were wrong. That was ridiculous! But then very intensive training continued and I improved a lot. Incidents happened. One of the biggest was when we planned to have a very extra intensive training on our last week, inviting lots of experts to assist our training for that period, Mount Merapi erupted and blew of all of our plans. We scattered and took refuge in different cities.

However, we somehow won the competition (along with the Best Memorials Award) and will represent Indonesia in the Asia Pacific level competition in Hongkong! That competition was more challenging, as there are more alleged crimes committed and there is a part where we must debate on legal theory. Unlike debating where we could simply say anything that sounds logical, we must understand the law behind our arguments. For a common person, maybe this sounds like “we must memorize all articles in conventions”. It is not wrong that we must memorize articles and conventions, but that is a mere small part of the whole problem.

International moot court pushes us to understand principles and logic of law, how to manage and interpret various sources of law along with their applicability, and not to mention how we assess the weight and value of the given facts in the case. Therefore coming home from Hongkong, I was a different person. All the pieces and fragments that I have memorized bit by bit and here and there from the first three years of my study? Suddenly everything came together. I understand everything now.

My semester GPAs in my first three years ranged from 2,8 to 1.3. But returning back from Hongkong, while having the busiest semester (I had two PLKHs AND an international moot court to fight in. Only law students would know how terrible that is), my GPA suddenly went 3.76 on that semester. Furthermore in the following semesters until my last semester a few months ago, my GPA had a dramatic and sudden incline. Special thanks to Mr Heribertus Jaka Triyana, the most outstanding and smartest lecturer I have ever met! Much and most of the experiences and knowledge and wisdom I have obtained are all owed to him.

As a small catch, international moot court did not only increase my GPA but also helped my understanding in argument construction. I managed to fully understand the das sollen and das sein principle and to apply it in arguments construction (or deconstruction), thus again contributed to my debating skills.

Another small catch was that it also gave me new friends. My first new friend was Uki. He came from EDS UGM, which I have explained what happened between me and EDS UGM. But we ended up being really good friends and actively discussing so many issues academically. These discussions were really full of quality and I emerged from them enlightened. Then I started to meet other friends which have nothing to do with debating, such as Pina, Kartika “Tweety” Paramita, Ririn, Yudis, Arby, Ichan, Giga, Diva, and so many others. Finally, I did have a life outside debating! Although of course, international moot court is simply another form of debate but F*CK YOU SHUT UP WHATEVER HAHAAHA.

But what was more important is the way I see law and legal science. What hit me most was the development of legal paradigm. There was a time when what people want was a law of justice and fairness, and in this time justice was carried out priests, kings, dictators, mullahs, and others. The reign of natural law. However, as Sudikno Mertokusumo identifies, the more it is just then the less it is certain –which also applies vice versa. People started getting sick of the uncertainty of the standard of what is just and what is not.

This is where legal positivism became very appealing. In fact, since the 19th century and to the development of modern law, legal positivism became the most common paradigm from which to construct a legal framework. This paradigm is hard to explain in short. But among the things that it provides would be legal certainty. The focus of legal positivism is to ensure that law is constructed in such a way that it follows a definite system so that one can calculate to a high level of certainty the legal consequence of their actions.

Among the manifestation of legal positivism, would be that there are hierarchies of sources of law where a lower law may not circumvent the higher law, and that there is clarity on which authoritative body has the competence to issue which kind of source of law. And that is under a system where the divisions of bodies within a government which is clear both in function as well as chain of responsibility and relation towards each other. A more down to earth example is that we already have a definition of what “thievery” means from Indonesia’s Criminal Code, and judges are bound to follow that definition.

However, as said earlier, the more certain it is then the less it is just. When natures of cases and occurrences in the society are extremely diverse  one can not simply generalize. Even when every district has their own law (provided that it still adheres to the hierarchy of law), there is always blank spots for injustice or perhaps even legal loopholes. This is where customary laws play in, as proof that natural law can not simply be totally ignored.

But there are times that even natural law can not fulfill justice, as the influence of positive laws are so extremely high. There are many ways to cheat the law legally. An example is how an employer can cheat minimum wages by dividing the hard labor into part time shifts –where minimum wages do not apply. This is not to mention how it is quite a common practice to manipulate the laws of evidence and crime in such a way that a crime could be done legally simply by adjusting the papers. An example of this is avoiding vicarious corporate responsibility in committing corruption by arranging subsidiary companies in such a way that it creates a limited liability within a limited liability (or even further, within a limited liability within a limited liability within a etc etc etc) that the line of responsibility is almost impossibly traced. Yes, guys, it is so hard to prove a corruption case even without any bribery involved (see my article on this subject here).

But then, as a person learned in the arts and knowledge of law, I understand that law is more than a set of written rules as pure positivists suggest. Even the most devoted positivist would agree that it is just wrong to interpret or understand the law in such a way that it contradicts the need of good prescribed in most (if not all) constitutions in the world.

Therefore, I find it very easy to distinguish a law or interpretation of a law which gives nothing but injustice. I do understand the background why legal positivism appeared, and under that notion it is just hard for a judge to ignore a positive law to adhere to his/her own personal sense of justice (just like the arguments of the defendants in the Judge’s Case before the Subsequent Nuremberg Trials).

However, to begin with, I believe that anyone who is learned well in the science of law would understand this. Thus further in practicing law, I believe they should carry out the law to at least mitigate injustice to the furthest extent possible. And legal scholars, being the ones who understand, must endeavor to the fullest to remind our politicians or even become politicians to construct positive laws with content that adheres to the true meanings of justice in its purest and kindest way.

In International Law, principles of Natural Law is held at a very high esteem. Despite positive laws being at the forefront in form of treaty laws, states can not avoid responsibilities from international customary laws (although, of course, many highlights of cases where it does go unpunished). In many cases, among them the ICJ: USA vs Nicaragua (USA lost, by the way), countries and individuals have been punished despite the fact that there were no positive laws applicable –but by the virtue of international customary laws. Legal theory brings it even to a further extreme. Starting from the Wimbledon case before the PCIJ in 1923, International Law started to recognize the Jus Cogens norms from which sovereignty and treaty law may can not circumvent. In fact, the Jus Cogens can quash a treaty null and void!

Much debates happen on the subject, however, much critics coming from the positivists. Even sometimes before the ICJ, the Jus Cogens argument has been ignored once or twice (see the Arrest Warrant case of Congo vs Belgium, which I really resent). This is a subject which I am highly interested in and wish to study further on.

For me, studying law is studying the institutionalization of “good” and “evil”. And from what I have learned, whatever instrument we use, it must as much as possible aim to do good. I believe that such commitment should be upheld by all legal scholars and practitioners.

During my last year in the Faculty of Law, I established the Community of International Moot Court (or CIMC) of Fakultas Hukum Universitas Gadjah Mada. Assisted by Rizky Wirastomo and Eldo Kredainou Alwi, we united the five international moot court delegations: ICRC IHL, Philips C. Jessup, IMLAM, C.Vis (East) and C.Vis (West) into one federation.

At the time I believed that international moot court activities should be institutionalized under one banner for better coordination and better funding. However, while drafting the charter along with Rizky and Eldo (before inviting other delegates of international moot court), I had something more in mind. I really wanted CIMC to be a community in law that practices law to the fullest extent, so that we actually apply our knowledge and become great lawyers.

Not only that we prepare for competitions, but we should also disseminate the knowledge of international law in each federate’s specific field. In that aim, we hold workshops and also established the first academic journal managed by undergrad students in Indonesia —Juris Gentium Law Review.

Other than that, during my regime as ad-interim president (because at the time, holding an election as mandated by the charter was not yet possible) I tried to establish a system where all rulings of the president and consul meetings are formalized in a certain format to accustom us to actually work as a legal system.

Finally, around May 2012, we held an election and inaugurated Thomas Peter Wijaya as the first president of CIMC. Under the banner of CIMC, international moot court kept on growing in UGM Faculty of Law, and we are expecting it to grow even further in the following years.

My hope is that this community, as I have said before, does not simply serve as a mere competition management. It must become a forum where we act and think like lawyers and legal scholars to actually do good for humanity. Yes it may sound utopic and altruistic, but I mean it.

(Next is the Finale. Goodbye Jogja : Part V – In The End, At The Start)