Justice system between
LEGALITY AND IMPLEMENTATION discretion in
By: Muhammad ikbal
Justice system we adopt a continental European system, which is based on the legality of the decision of the court, where the judge refers to the written rules of the most dominant in verdict. Implementation of the system of justice that is based on formal law in order to defend the truth of the law because of formal or the Code of Criminal Procedure, the faults in the practice of law enforcement or because of formal law enforcement is still problematic due to the lack of professionalism respective judiciary, ranging from investigation, prosecution, and judgment, not reflect the purpose and nature of the law itself, the application of the policy given by law to the enforcement of the law that has the capacity to be able to implement it still can not put the fitting in place, this is the starting point there are no successful effort in terms of upholding the rule of law in Indonesia, or deponerring discretion is a policy position themselves in the ideal case the judicial system in Indonesia where discretion and deponerring is the hope legality balance oriented equality before the law, but the reality is a gap between das sein and das sollen. In this case I would like to give an overview and explanation as well as the input of the system for a comparative duo judicial process, because Indonesia is a country of reference state or recht state law, which is based on three orientations are: upholding the rule of law, equality before the law, and justice is good and net reflected nation Pancasila philosophy.
Indonesia is a country that embraces sala Civil Law system or continental Europe, where in the rule of law (law in action) based on codified law or recorded or also called the law in books, in which the principles of law used is the principle of legality or Nullum delictum nulla poena sine praevia lege (no offense, no criminal without first rule). In the justice system in Indonesia, especially its criminal justice system (Criminal justice system) are always in a position Diskrespanasi between law in books to law in action so that the true purpose of the law which can not be achieved. Errors in interpreting the law enforcers and the actual law in mengaflikasikanya, adoption law in the judicial system, especially in the criminal justice system (criminal justice system) conducted by the competent institutions such as the Institute investigator (police), Institute Prosecution (Prosecutor ), the courts (decisions), the Institute has begun. Errors committed by rogue elements in the application of a law enforcement the legality or rather its objective laws often people complain about the actions of law enforcement that is not based on a sense of justice and always make use of authority is wrong that those seeking justice is the general public especially often the victims of errors of law enforcement action.
People who become victims of crime are often the victims of the victims of the ongoing judicial sytem itself, the losses experienced by the victims of crime whether the victim material, moral, and so on, it never terfikirkan by law enforcement. The rule of law is granted a right relating to law enforcement authorities as provided by law institutions such as the police investigator, as stipulated in Law No. 2 of 2002 on the Police gave authority to the investigator in a case that considered aside to protect and prioritize Public interest is often referred to as Discrestion or discretion, as well as the prosecution agency or prosecutor, Attorney for the country and the rights of authority granted by the Attorney Act which regulated in Law No. 16 year 2004 a similar principle to the discretion significance but different context that "the principle of opportunity 'principle is the basis or benchmark for prosecution in their policy rule in the case, or often by the term Deponerring.
Deponerring an understanding and common goals are both to rule out a lawsuit. Both institutions is the key to the creation of a consumer society laws justice or seeking justice for these two institutions that started the process leading to conviction or not. Although we refer to a judicial principle persemtion of inouncen or presumption of innocence to the court that the suspect posed as a defendant may not be guilty before the judge's ruling that cons, but a long process that must be accepted by the suspects and victims of crime over the decision of the court This is not necessarily guilty of the things that must be assessed and find a solution. A principle of legality and discretion in the application of formal law in particular companies not giving true meaning to the morality because it did not hit as well as professionalism and human resources that are not owned by the upholders of the law itself. To the authors to formulate a research question about the legality of the judicial system and discretion in the application of formal law
II. Formulation of the problem
1. Is the legality and discretion in the application of formal law Indonesia can realize the purpose of the law
2. Is the question of law enforcement is a reason no realization of the law
III. The research method
This research is a normative or doctrinal are often classified as qualitative research, this study is always identical with normative legal science with pragmatic justification is essentially sekahlianya peer consensus. The approach used in this study, using the approach of the law (statue approach) as well as the conceptual approach (conteptual approach), way of thinking in the writers discuss and explore issues about the justice system between legality and discretion in the application of formal law, using deductive thinking means way of thinking from the general to the specific.
IV. Review of the literature
A. Understanding system and judiciary
System comes from Systema, which is derived from the Greek language is defined as a whole, made up of various parts. Each system consists of parts called subsystems, and then the parts (subsystems) can still be described further in the various subsystems are less than system elements and relationships between elements can be similar to the relationships found in the surrounding system. Opinion Winardi system can be divided into two: the open system and closed system. Open system is a system that has relations (relations) in the environment. While a closed system, is a system that has no relation to the environment. Comparing the opinion leaders as Elias M. Awad, William A. Schrode, and Voich of system elements, Efendi opinion suggests a system contains the following elements:
1. set and manage a system to a group of people, can also be a combination of a bunch of people, machines and facilities but also the combined group of men set of guidelines and the data management tools.
2. according to the origin of the system of the Greek word 'system' which means a whole, then it is always a whole system which consists of subsystems. Each subsystem is further divided into sub-systems that are smaller, and so on.
3. As a whole, the system is not merely a collection of sub-systems or parts, but on the whole there is interdependence between the parts contained in that system.
4. each system must have a self-adjustment, the ability to adjust automatically. It is said, too, has a mechanical control system. Activities made possible by the presence of feedback (unpan forth) and, therefore, the system also has cell regulation, the ability to self-regulate.
5. each system has specific goals or objectives
6. each system transpormasi process that converts inputs into outputs; outputs to inputs. This is why the system was often referred to as Processor or transpormator.
In the context of law and justice, the legal system should be seen as well as the legal union of the various subsystems that support each other, thus making the formulation of a legal sense must also in the context of the legal system. Similarly, the whole judicial system, by taking characteristic contained in the various subsystems of justice in kaitanya one another. A legal system in 1975, which was proposed by Friedman Rahmad Baro has elements:
1. Legal structure, the framework skeletalnya;
permanenya shape, body kepranataan system, the bones are hard and rigid to keep the process flowing within its boundaries.
2. The substance of the law, which is made up of:
1. substantive rules, and
2. rules about how legal institutions should behave.
3. Legal culture, as elements of the attitudes and social values; as part of a common culture, which includes habits-habits, opinions, ways of acting and thinking, which divert the forces of social approach and law menjahui ways particular. Legal culture include:
1. attitudes about whether something is right or wrong and
2. about whether attitudes beneficial to litigants in court.
Understanding the process of justice is pursued in the search for and find justice, with the mediation of judges and officials who are assigned to the judiciary's duty. procedures to seek justice with judicial intermediaries, known as the law of procedure, both civil and Events law criminal procedure. Apart from the sense of justice the authors would like to explain the types of judicial There are 3 types, namely:
A. Justice charismatic, where people come to a correct decision in a case through religious means, through the considered sacred or through a means of showing God's will.
B. Justice empirically, is way formalistic thinking of a concrete case to another concrete case, using analogies and precedents, which are typically carried in abundance by legal practitioners.
C. Justice Kadi, a procedure oriented show on ethical standpoint, relegius, political and practical in what is viewed best with regard to a particular case.
In a variety of the Nation in this world in a justice system that is used is the country tends to use the justice system invaders. The system of justice that apply in countries colonized the former Anglo-Saxon justice system and justice system or Continental European mainland Europe. In the Anglo-Saxon justice system or also called Common law, the influence of this system extends throughout the country to have colonized Britain to become one of the most influential legal system. The legal system is characterized by a system of law called Jury justice system. Justice system is to determine the position of a judge only law of an event, while the jury to determine whether or not one person who confronted fore trial court and law used is an unwritten law. And continental European judicial system or law civi system tetulis law is the legal system or codification. The principle of law used in the judicial system is the principle of legality (nulla poena sine delictum nullum praeviea poenale lege), which means that no one may be punished for an act, unless there are rules set in advance, this principle is only known in the countries using written or codified law.
Indonesian justice system,
justice system adopted by Indonesia because it is a former Dutch colony that still adopt the legal system is a form of the Continental European judicial system, also called Civil law legal system where there is any decision on the judge's decision, because the legal system is used in writing.
Court Institutions in Indonesia
Judicial institutions also vary, as can be seen in article 10, paragraph 1 of Law no. 14/1970 which has been revised into law 48 of 2009 on judicial power, namely: 1. Public justice. 2. Religion justice. 3. Military Justice. 4. Administrative Court of the country. The culmination of all kinds of court is the Supreme Court, which has the competence examine and decide the case on the last level.
B. Understanding Legal and discretion
Definition of legality, legality Legal origin of the word that means something that is prescribed in the law, so the legality is an act or actions based on the rules of law. In Indonesia because it uses system written law so the principle of legality is used, it is usually the principle of legality contains three parts, namely;
1. No prohibited and punishable by advance if it has not been stated in the rule of law.
2. To determine whether there is a criminal act should not be used analogy. (Kiyas).
3. The rules of criminal law is not retroactive.
Understanding discretion by H. Warsito Hadi Utomo is wisdom, flexibility or the ability to choose a plan or policy to consider for themselves. discretion is the freedom of taking kempatasan in any situation at hand in his own. Thus the sense of discretion when combined with the word bitterness, then istila police discretion can be interpreted a policy based keluasanya to perform an action on the basis of judgment and self-confidence. That he was not out of the provisions of the Law but discretion is still conducted within the framework of law.
Understanding Law in Indonesia Formal formal law is often referred to as the Law of the event, which is divided into two, namely the law of criminal procedure and civil procedure. Pengertianya formal law is the law governing law enforcement material. Formal law is divided into two formal criminal law and civil law formal, formal criminal law is a rule according to the law governing how to enforce the criminal law material. While the formal civil law is the law that governs how material enforce civil law. I'll just cover Civil Procedure relating to public justice.
V. Discussion and analysis
A. Legality and discretion in the application of Formal law in Indonesia can realize the purpose of the Law.
Indonesia is a country with continental European legal system, also called the Civil Law legal system in which the law is used in the system peradilanya are written or codified law system where keputasan pengadilanya in the hands of judges, and the legal system is embracing the principle of legality (nulla poena sine delictum nullum praevia lege poenali). The principle of legality expressly referred to in the preamble to the Act No. 8 of 1981 on Criminal Procedure, as can be read in the letters a, which reads: That the laws of the Republic of Indonesia is a country based on Pancasila and the 1945 constitution which menjujung human rights and which guarantees all citizens kedudukanya in law and government must uphold the law and the government without any exception. So it is clear that the Criminal Procedure Code as criminal law is a law based on the legal principle of legality. with the principle of legality which is based on the rule of law and the supremacy of law enforcement officers ranks was not justified: to act outside the law, or other undue or other undue process to law, acted arbitrarily, or abuse of power, every man, whether he is a suspect or defendants have the same equal footing before the law or equal before the law, have a position of 'protection' of the same by law, equal protection on the law, be treated equal justice under the law, equal justice under the law.
As diketahu that are contrary to the principle of legality and the principle of opportunity is discretionary, which means even if a defendant guilty under examination bright enough investigation, and likely will be sentenced, but the results were not submitted to the court by the public prosecutor. The case of this matter dideponir by the prosecution on the basis of the public interest. As well, at the beginning of the stage police investigation, the investigators were given the right by law on penyampingan case in the public interest, which refers to the purpose of the law based on the value of the benefit.
Based on utility theory or also called Eudaemonistis theory of objective law itself teaches that the law aims to provide benefits to the community, adherents of this theory is Jeremi Betham very famous in his book "Introduction to The Moral and Legislation" and argued that the law intended solely for what is useful to man, and the state law is solely for the benefit of the true, the happiness of the majority. foresight investigators, prosecutors, and judges must be able to act based on professionalism and human resources, and must be able to act responsibility (responsibility). In the justice system, especially in the criminal justice system agencies competent herein as law enforcement agencies that run formal law is the police, prosecutors, courts, and Correctional Institutions. The four institutions which is the backbone of the establishment or the supremacy of law in Indonesia.
This institution is an institution that provided by the Act as the agency investigator in the criminal justice system (criminal justice system) as to which the new law on the police to explain the role and duties namely Law No. 22 year 2002 about the police, the police as an institution investigator certainly each action taken should really be guided by formal law (Law No. 18 year 1981) on the Criminal Procedure Code, all forms of authority and the authority of the police investigator in this law regulated both rights and obligations as authorized in Article 7 of the Criminal Procedure Code :
a. Receive reports or complaints of a lack of follow-on
b. The first act when at the scene;
c. Telling stop a suspect at the scene at the time;
d. Arrest, detention, search and seizure;
e. Inspection and seizure of letters;
f. Taking a person's fingerprints and photograph;
g. Calling people to be heard and examined as suspects or witnesses
h. Bring in the necessary expertise in relation to the
examination of the case
i. Conducting investigations termination
j. Conducting other acts legally responsible.
From point a to j identifies the investigator duties granted by law to be performed properly, each point mentioned above about the authority the investigator should not menapikan or out of the purpose of the law itself, largely investigators here have really that high integrity, professional expertise gained from pelatian prints or special education an investigator. From the point j, describes other actions legally responsible, these points provide a separate authority for investigation in terms of completing a criminal case to actually see the purpose of the law itself, with the authority of the act itself that is precisely discretion, which is basically for the sake of general as well as a greater benefit over tindakanya.
Attorney or prosecutor institutions, kewenanganya regulated by law 16 of 2004, under Article 137 law No. 8 of 1981 on Criminal Procedure states prosecutors authorized the prosecution of anyone accused of committing a crime in the jurisdiction to delegate a case to court competent judge, prosecutor or prosecutor has the right to prosecute if the files diterimah by investigators really are complete and the demands that will be submitted to the court must strictly meet the elements for prosecution. Prosecutor or prosecutors do demanding based kriminalistik data from the investigator or the police, because the facts kriminalistik can be used as consideration in the prosecution. A prosecutor must also need to understand the science in support of a criminal offense as revealed Criminology, viktimologi and psychology, and kriminalistik, because this is what science can reveal the occurrence of a crime. The law also gives prosecutors the authority to rule in the case or dismiss the prosecution in the public interest. The principle is that we often hear the term principle of opportunity.
The judge is giving the decision in the judicial system, which decides whether or not the defendant guilty, the judge granted the authority by law to perform all keputusanya, such as law No. 14 year 1970 jis law 35 of 1999, the law no 4 years 2004 on judicial power, from the third law has regulated the authority of judges in implementing measure.
B. question of law enforcement is a reason no realization of the law
is meant by the law enforcers are components within the criminal justice system consists of; into the police, prosecutors, judges, the agency has begun. The four institutions which is the barometer of the supremacy of law in our country. As already mentioned before each task of law enforcement agencies that have jurisdiction respectively. Law enforcement agencies in applying the law of material is always guided by formal law or the Code of Criminal Procedure. Although the authority of the institutions provided by law, agencies must be able to coordinate with each other and watch each other in order to avoid differences in upholding the rule of law, otherwise the direction and objectives can not be expected. Judging from the application of criminal law system is no system of checks and balances (checks and balances) between the law enforcement. While the purpose of the law itself is described in the theory of mixed JHPBellefroid (Kansil, 1983:42), argued that the content of the law should be determined by two principles, namely justice and benefits. And opinions of Mochtar Kusumaatmadja that the principal purpose of the law is to create order as a condition of regular society. We see the law enforcement agencies ranging from the police, prosecutors, judges, and implementation has begun and within the formal legal mandate, each of the judiciary has been given the authority by law to carry out its duties and functions.
We see from the behavior of the police in handling the case, when the police are faced with a case example from the process of inquiry, investigation, reached the stage of equipment such file or news events (P 21), the police in this case should not be separated from the principle of legality and discretion that led in the execution of their duties, these two should not be separated from the act of the police as this is regulated by law. Maintain material law, it is imperative for law enforcement in the interest and legal purposes but the one thing that should not be overlooked is the law has given an authority that could rule out the provisions of material law in the public interest. Example
A person who violates the law or the provisions of material law which violated the provision that a person is given a sanction in accordance with the act or infraction, suppose person A is B but the suspect made away with the consent of both the A and B, with the intention of A eloped invite the B, but the act of a guilty family police B so A report on allegations made away with other people's children without the consent of his parents. B according to the laws of material is allowed to determine their own fate because he was already more than what is prescribed by law that is over 18 years old. In the process of judicial law enforcement officials who deal with cases like this should really be able to see whether such a case could be brought to court or not, and must be set aside in the public interest, starting with the police investigation in this case that functions as an investigator should be able to read which cases are should be continued and which cases should be terminated, the problem of the above cases do indeed sometimes act contrary to the law but the law materilnya who live in the community that the act is a habit not a conflict within the society norm. The failure of law enforcement agencies in the enforcement of the rule of law because of several things that affect the performance of its duties:
1. the behavior is influenced by the decisions, orders, and idealistic attitude
(The writer of the opinion adopted Friedman Lawren on legal behavior)
1. the ability of law enforcement agencies in carrying out the judicial process is very limited, unprofessional, no ethos in jabatanya
2. the abuse of authority or authority for personal gain in order to enrich himself.
3. lack of understanding of the legal theories are widely
4. do not carry out law in the law books in action
5. always heed the moral self-interest or morality menjujung
6. magnitude of the effect due to corruption within their respective institutions
7. lack of attention to honesty and discipline in their duties
8. not animating essence of the job, such as do not feel that the personal is a cop, jaksa.hakim.yang is essentially the work of a high menjujung noble values and is responsible for job
9. not menjujung high social nature that are not only oriented material alone
10. Not having a sense of idalisme and a high work ethic and refers to the moral and religious values.
of ten things that affect the implementation of law enforcement purposes in the application of formal law by the judiciary, we can look at and we take what we have to do in order to create what is desired by the general public is the real purpose of the law enforcement- point.
Of the problems in the judicial system between legality and discretion in the application of formal law I can take a conclusion
1. if the legality and discretion in the application of formal law in order to realize the objectives of the law, is competent institutions within the justice system should coordinate with each other at every stage of the administration of justice, menjujung high value on personal interests or organizations, according to formal law enforcement ideals goals to be achieved, the placement of the people who have the talent and intelligence in their respective fields, the absence of corruption in their respective institutions, the application of relevant law in the law books in action.
2. law enforcement issues so the reason can not be realization of the law is in the process of recruiting candidates for law enforcement is not based on talent and skill respective areas, are increasingly rampant corruption culture in each organization, the formation of the orientation behavior of the material rather than the nature of the profession, a lack of understanding of law, the absence of childbirth education professional personality that is reliable,
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