2

In Indonesia, there is an article 112 of drug laws.

The article says that simple possession is punished with a minimum of 4 years in prison.

This is in contrast with article 128 that says that usage is punished by at most 4 years or rehabilitation.

Some people think that verse 112 is strange and it's actually designed to punish dealers and not users.

After all, every users must have stored drugs for later usage.

Later, the judicial branch, not the legislative branch, issue a letter

The letter says that the minimum amount must be at least 1 gram for meth.

https://www.hukumonline.com/berita/baca/hol21579/ma-serukan-pemakai-narkoba-tidak-dipenjarakan/

However, even the letter is very strange indeed. For example, the guy that got caught must have tested positive for the drug. So a social user that uses drugs like once every month will get a minimum of 4 years sentences because he isn't using it when caught.

This actually changes the laws. The original laws have no minimum. Yet, the judicial branch, namely the supreme court modify the law to say that there has to be some minimum.

Is it common for judicial branch to add details on laws made by legislative?

3
  • 2
    I don't know that case in particular but the answer to your question is more complex than you might think. Statutory Law is law made by a legislative body (typically a parliament). In some countries court decisions are fundamental for for further detail of legislation (Common Law), others give preference to codified statutes (Civil Law). Depending on the country you also have Customary Law and religiously based Law systems. There are also a bunch of exceptions for executive branches like regulatory and administrative law. The answer to your question depends on where you live.
    – armatita
    Jun 11 '19 at 8:41
  • 1
    @armatita Expand that into an answer. It would be better and more useful than current answers IMO.
    – M i ech
    Jun 12 '19 at 9:03
  • @Miech I'll try to put something together at first opportunity.
    – armatita
    Jun 12 '19 at 9:07
3

Courts apply the laws. For that, they need to read them, to understand them, and see how they match with the facts being judged.

Sometimes the laws and the facts are clear and there is no place for doubt. If a law says that I must not cross a line and I was found strolling ten meters beyond the line, there is no doubt that I broke the law.

But some times it is not so clear cut. What if my feet stayed in the correct side of the line but I flexed my body over it? What if I just passed my hand briefly over the line? What if I crossed the line to help someone who was having a heart attack?

Also, there are questions that arise from the conflict of different laws. If a law says that I must comply with police requests, what happens when a police officer tells me to cross the line?

To sort out those cases that were not clearly defined by the laws, the courts interpret the laws, often taking into account not only the letter but also the intent of the law... why did the legislative forbid that I cross the line?

And of course, when multiple persons (even in the case of trained professionals like judges) make their own interpretations, their conclussions might differ. In these cases the judiciary can make its own common interpretations (jurisprudence *1) of the laws, that are to be followed by all the courts.

When the issues are related to things not clearly defined in the law those interpretations will not contradict what is written, but if the issue is that a law is conflict with other laws then the courts may decide that parts of the law are invalid.


In this particular case, if there is no minimum then you probably are in trouble: "92% of the bills were positive for cocaine with a mean amount of 28.75 ± 139.07 micrograms per bill". Drug detection tests can detect incredibly small amounts, so a minimum is needed so that the law cannot be used to jail anybody; if the law does not set one it is not unusual for the courts to try to define one on its own.

As an aside, for the sporadic user case, most drugs leave traces of its use that can be used to detect past use (you can detect THC metabolites in the blood up to six months after using it). Nails and hair are particularly useful, as they store chemicals extracted from the body chronologically (the further away from the body the compound is found, the more time it has happened since it was present in the body). It would be rather strange for a regular user not to be able to prove it as part of its defense(*2).


*1 The way of establishing jurisprudence may vary from jurisdiction to jurisdiction.

*2 And of course, breaking the law always carries some risks...

3

In theory, the legislative sets laws, the executive enforces laws, and the judiciary interprets laws if there is any disambiguity.

In most countries the courts are a tiered system, from local courts to the supreme court. Higher courts handle appeals and they also help to ensure consistent interpretation of the law. A district court may use precedent from different districts, but it doesn't have to. It would have to follow guidance from superior tiers.

For instance, the legislative might say that drug trade is punished more harshly than drug use. The executive catches a suspect with a large amount of drugs. The suspect claims that it is for personal use only.

  • It could be up to the prosecutor to decide if the suspect is charged with possession or trade. Does the prosecutor decide on his own, or is there a departmental guideline?
  • It could be the initial court which decides if they allow a charge of posession or trade. Both the defendant and the prosecutor may be allowed to appeal this decision to a higher court.
    Judges don't like to see their cases overturned, it looks bad for them professionally. So if higher courts consistently judge in one way, the lower courts will follow the cue.

Where the thing you describe looks a little strange is that the judiciary issued a letter and not a legal decision in a specific case which becomes precedent.


A somewhat separate principle comes into play when a constitutional court tells the legislative that a certain law contradicts constitutional principles, and strikes the law down unless the legislative changes the constitution. Usually laws require a simple majority and constitutional changes require a supermajority.

1
  • @Brythan, yes, fixed.
    – o.m.
    Jun 11 '19 at 5:26

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .