Under Article 1 paragraph 3 of the 1945 Constitution, it states that Indonesia is the State of Law. This is a form of affirmation that means that all aspects of life in society, state and government of the State of Indonesia must always be based on applicable law. Understanding Applied Justice and Laws in Indonesia
The concept of the rule of law leads to the goal of creating a democratic life and protecting human rights and equitable prosperity.
It was explained in the national principle which says “Social Justice for All Indonesian People” means that every Indonesian is entitled to receive fair treatment in the fields of law, politics, social, economy and culture.
This statement is directly related to legal norms which are one of the important factors in our national and state life.
What is the law?
According to its definition, Law is a regulation or rule that is officially considered binding, which is confirmed by the authorities or the government.
Laws, regulations, and other applicable rules are created to regulate the association of people’s lives. Benchmarks (rules) regarding certain events (nature and so on), decisions (considerations) determined by the judge (in court).
Meanwhile, according to Aristotle, the law is a collection of regulations that do not only bind the community but also the judge. The law is something different from the form and content of the constitution.
Because of that position, the law oversees judges in carrying out their positions in punishing those who are guilty.
Indonesia is a country of law that all citizens are required to comply with applicable law. Obedience to regulations and laws is a concept that must be realized in every citizen. The more a person obeys the law, then it can be concluded that the level of legal awareness is also high.
Legal norms are norms based on local government regulations. Sanctions that can result from violations of these norms are strict, binding and coercive.
It can be concluded that the law is a collection of norms and sanctions to maintain order and security for all people. We can imagine that if Indonesia does not have a law that binds its citizens, this country will be destroyed.
Violation of the Laws in Indonesia
Often you see on TV, there are cases of murder, kidnapping, robbery, and others. That behavior includes things that violate the law in Indonesia. We often refer to these activities as law violations.
The law is something that must be obeyed. But nowadays, almost every day we get news about this violation or even we see this violation directly.
Violation of the law is the action of a person or group that violates the rules and does not comply with applicable laws. Violation of the law is a form of defiance of applicable law.
Violations of the law can occur because of two things, namely violations which the violator has regarded as habits and even needs. Laws are made to regulate society, not to be violated by society.
Legal sanctions for violators
Sanctions arising from legal norms are firm and real. Decisively a law is that there have been sanctions from violated rules made in statutory regulation.
According to article 10 of the Criminal Code, there are 2 penalties called the basic and additional penalties.
The main sentence is a sentence that has been decided in the trial starting from the death penalty, life imprisonment.
Real law is a rule that has been set for the offender to determine the amount. In article 338 of the Criminal Code, it is stated that anyone who deliberately took another person’s life. They will sentenced with a maximum imprisonment of 15 years because of murder.
Legal sanctions are given by authorized judicial institutions, while social sanctions are given by the community around the perpetrators.
Types of Laws in Indonesia
1. Public law
Public Law is a legal regulation governing the legal relationship between citizens and the State which concerns the public interest. It is a law that regulates the community of legal regulations or regulates the relationship between the State and its equipment and its citizens such as criminal law.
Criminal Law is the whole rules that determine what is prohibited and included in a criminal act. It determines what penalties can be imposed on those who do it. The function of criminal law is generally to regulate social life, hold the throne in society.
2. Private Law
Private law is a type of law that regulates the relationship between human beings. It is between one person to another by focusing on individual interests. It is a law that regulates the relationship between individuals in meeting their needs.
Civil law is a provision that regulates rights and interests between individuals in society. In this law, the basic principle of the autonomy of citizens is their property so they have the right to defend their own will.
Amnesty International Indonesia finally has summoned the Indonesian government over human rights abuse in Papua. It is being the peak after numerous of several killing cases in Indonesia’s easternmost region. Amnesty sees the people of both West Papua and Papua always being the victims of these violations conducted by state actors.
Regarding the reports, more than 44 Papuans prison facing rebellion charges and treason by June 8. Polices arrested them even no evidence of any crime, they just taking part in a peaceful protest about Papuans. Another report has specified that more than 26 unlawful killings case by security forces, from March 2018 to May 2020.
Recently, between April and June 2020, there are 114 hacking along with digital intimidation towards human rights activists. The number of intimidation and discrimination has increased significantly. Across history, the violence in Papua has been started a long time ago. Unfortunately, it hasn’t finished until now.
Racism and Human Rights Abuse in Papua
The racism and abuse of Papuans have boomed after a video of Papuans students who were racially abused by Indonesian militias got around the public. The rumors said that these students had provoked by damaging the Indonesian flag flying on August 17, 2019. This incident led to a huge demonstration of over 30 cities and some rioting by burning down some local parliament building.
After that incident, video footage of police shooting some live ammunition toward Papuan protesters posted online. This incident happened on August 28, in Deiyai. At least 8 Papuans and a soldier were killed. Furthermore, 39 other Papuans also got injured. In the end, police arrested 16 Papuans and charged them with rioting.
A moment later, on September 1, some police and its allies (soldiers armed) joined to surrounding Papuan student dorm located in Jayapura. At that moment, a Papuan student was found dead after being stabbed, while over 20 Papuans were also injured.
At the end of September 23-24, more than 43 Papuans were killed and over 1.500 people had to be evacuated from Wamena to Jayapura by air. After that moment, the case of discrimination still grows rapidly. Some students found to march and burn the local regent office after getting racial taunts by their teacher.
Papuan Lives Matter
The murder case of George Floyd by a white policeman in Minneapolis, USA, has a similar pattern to human rights abuse in Papua. It pointed out that intimidation and discrimination also happened around our daily activities. It happens regularly to these indigenous Papuans, although they are also Indonesian.
The government also gives a huge influence on this discrimination pattern. Even, the Jakarta District Court has ruled that Jokowi and his minister, Johny G Plate, have violated the law. They are found guilty after throttling and blocking the internet bandwidth during the protest for discrimination for Papuans from August to September 2019.
Numerous incidents that being proof of intimidation and discrimination toward Papuans has been started a long time ago, it is time to fix it up. The justice and unity can’t be adjusted if the tolerance level among Indonesian still at low level. It is the best way to decrease the number of human rights abuse in Papua.
Over time, law challenges in Indonesia keep increase. Even though, there are so many changes in several aspects, especially in politics, social, and economy. Indonesia has transformed in so many ways, from an authoritarian regime in Soeharto’s era into one of the most enthusiastic to hold decentralized democracies in Asia.
This remarkable transformation is a huge achievement considering its high vulnerability to disasters, its large diverse population with numerous ethnicities, and its geographical fragmentation. Indonesia gradually accomplishes microeconomics and political stability. It can be reached through Millennium Development Goal targets, from middle-income country status to be welcomed of the G20.
However, besides the huge achievements above, some challenges also increase significantly. The transformation brings society to a new lifestyle that requires money. The society also becomes more liberal along with various ideologies and cultures that penetrate this system.
Drugs and Terrorism
The most problematic law challenges in Indonesia are when it comes to drugs. The abuse of forbidden drugs to use without prescription grows rapidly along the time. From ordinary people to public figure, the number of drug users always increase without any doubt.
This significant number has a strong correlation with the HIV/AIDS case. As the major manufacturer for an amphetamine-type stimulant, the statistic of HIV/AIDS keeps growing gradually. 40% of these HIV/AIDS cases are from injecting among drug users. Besides, more drug user means more drug trafficking issues. It belongs to illegal crimes to trade some kind of drugs that are forbidden in a country.
On the other side, terrorism remains available in a smaller case. It started from Bali bombings back then in 2002 and 2005 which attacks J.W Marriot. 4 years later in 2009, the bombing targeted the Ritz-Carlton hotel in Jakarta. Although there are no huge bombing issues nowadays, terrorism still grow undercover that should be examined faster.
Human trafficking and Corruption Issues
From all the problems, the biggest and main law challenges in Indonesia are human trafficking corruption. These two problems seem to have no end. Among the South East Asia countries, Indonesia becomes a transit and target destination for the illegally smuggled and trafficked persons.
Indonesian becomes the easiest target to be trapped by offering a better job. The patterns of human trafficking are further exacerbated by any internal strife, like poverty, underemployment, and organized crime. Generally, the common aspect to make people interested in this offer is because of the promise to get a better life.
Actually, some efforts to break this crime have been addressed. But, challenges keep coming from the prominent role where corruption happens. Even in 2011, Indonesia was in position number 100 from 183 countries ranked in Transparency International’s Corruption Perception Index. It has been 10 years since then, however, the susceptibility to corruption still encountered until now.
Nowadays, Indonesia has advanced stronger institutional programs. It turns out with the succession of election and decentralization reforms. The agenda to combat corruption also reforms with the emergence of an anti-corruption institution. Still, it requires strengthening the transparency mechanism and law enforcement agencies to fight all kinds of law challenges in Indonesia.
Among the issues about coronavirus and others, the untold truth ab Indonesian human rights issues seems to be closed without a fair decision. Many people see the government has failed to protect every human right in its territory. We can’t totally deny that a lot of human and environmental rights still have so many aspects to deal with.
During his second term of office, President Jokowi only took a tentative and small step to advance these human rights issues. Gender and religious minorities keep facing harassment and mistreatment continuously. So many authorities prosecute under a blasphemy law that ends in prison terms.
It is not only the government’s responsibility to take care of everything about human rights, but also the society has to understand how the rule works. At least, you have to know some cases that lead to human rights issues in Indonesia.
Freedom of Religion and Expression
Most of the Indonesian human rights issues are about freedom of religion and expression. People haven’t totally forgotten when policies put 3 women for professed violations toward the country’s blasphemy law in 2019. A moment later, Aisyah who has a psychosocial disability was sentenced to 5 months imprisonment after posting a blasphemous video by Serang Court.
Other than that, numerous conflicts that brings religion has been recorded from time to time. In June, the Indonesian authorities also detained Suzethe Margareta for bringing a dog into the mosque. Even though, she psychologically has a strong indication of paranoid schizophrenia.
In Medan, North Sumatra, the Supreme Court officially rejected a Buddhist woman’s appeal case of alleged blasphemy verdict. The woman, Meliana, complained the adzan or the call to prayer to Moslems. The decibel rate considered too high and loud for the other people in different religions. It happened in 2016 and end with Meliana to have 1,5 years in a prison sentence.
People Rights Over Company
A hodgepodge of poor government oversight and weak laws also has been tracked in several cases. The most outstanding cases have been documented by Human Rights Watch back then in 2019. The top two problems mostly are about the failure of the company to fulfill human rights responsibility. To get more detail about these Indonesian human rights issues, you can see these brief explanations below.
- Iban villagers had been pushed off their originated land by PT Ledo Lestari, a palm company in West Kalimantan, 2004. A decade later, this company signed an agreement with the owner of the land and will relocate their homes. Although the company located them within the oil plantation area, they didn’t pay any compensation for it. Everything has been brutally destroyed.
- In Jambi, Sumatra, the conflict is between a company vs group; PT Sari Aditya Loka 1 that didn’t adequately consult with Orang Rimba. This company didn’t even consult to reach an agreement before displacing Orang Rimba from their forests. Nowadays, numerous Orang Rimba are homeless and live in plastic tents without any livelihood support.
These issues may have been closed for a decade. However, the impact still can be seen by now. Whatever these people do to get fair treatment, it only brings them to a dead end. The main problem in Indonesian human rights issues is the smaller your status, you’ll end up being mistreatment target.
According to the source of law in Indonesia, there are 2 kinds of the main classification; written and unwritten laws. In general, people may have known it well but they haven’t recognized one another. Some of the laws are based on society’s value. Thus, it is different from the prevailing cultural, political, situs judi poker or religious environment.
Generally, Indonesia adopts an intermixed of 2 kinds of civil law systems. They are Roman-Dutch and customary law. A long time before the colonization, the native kingdoms ruled each of their territories independently. At that time, they have arranged everything in their own customary law named adat.
The presence of Dutch colonization for 350 years, there is a significant legacy that can be seen from Indonesian law. Following its proclamation and Independence Day in 1945, Indonesia has started to form modern Indonesian law. Instead of truly forming a new one, the government chose to modify several points of the existing laws.
The official enactment procedure of the written laws has been legitimated since the existence of Law Number 12 2011, specifically on Enactment of Laws. Generally, the main source of law in Indonesia is from the Undang-Undang Dasar 1945 (UUD ’45).
Although has been replaced by the Federal Constitution of 1950 and the Temporary Constitution a moment later, the system turns back to the UUD ’45 again. The former President, Soekarno, has enacted this crucial moment by Presidential Decree on July 5, 1959.
Rather than changing to the new law, the government has amended the authentic UUD ’45 for 4 times; in 1999, 2000, 2001, and 2002. The amendment successfully ads some matters regarding the parliamentary system, human rights, and the newest issues. To accommodate various needs of it, there are some kinds of written laws below.
- Government Regulation in Lieu of Act (Peraturan Pemerintah Pengganti Undang-Undang); it is a law drafted by DPR that includes the President’s consent. In an emergency case, the current President can establish immediately a Perpu/ Government Regulation in Lieu of Acts.
- Government Regulation; the Peraturan Pemerintah/ PP is assigned by the President to enforce Laws.
- Presidential Regulation; this Peraturan Presiden/ Perpres is assigned by President within his power and authority.
- Regional Regulation ( Peraturan Daerah/ Perda); it is originally drafted by DPRD with the regional’s consent.
There are numerous laws when it comes to customary or unwritten laws. It refers to every kind of law that is not promulgated by the state authority. Specifically, in TAP MPR with Number III/MPR/2000 of Source of Law and the Hierarchy of Laws and Regulations, in Paragraph 2 Article I, it determines that both written and unwritten laws have a huge impact to Indonesian history.
- Custom (kebiasaan); although it is not enacted by the government, it has a similar condition in society that always abided to.
- Adat Law (hukum adat); a set of traditional laws that is only valid on where the region of the originated adat law born.
Along with these laws, several conditions can be turned as a law in society, like Syariah law principles for Muslims, doctrine, and jurisprudence. Whether the source of law is written or unwritten laws, they have impacted society differently to be better and unified.
There are various types of courts in Indonesia. It has a similar concept to the U.S. system with its three-tiered courts in Indonesia. These three-tiered levels are the Supreme Court, High Courts, and District Courts. Each court has its target to solve various issues among society.
Besides, in the special case, there are three courts outlined by general jurisdiction; religious, administrative, and military court. It has been regulated on Judicial Powers 2009 (Undang-Undang Kekuasaan Kehakiman 2009). Each court above has absolute capability and competency within each jurisdictional area of its responsibility.
However, the final decision from each court can be appealed ultimately to the highest; Supreme Court. In the special court case, they also have different High Court; High Courts for Military, Administrative, and Religious Courts. To be more specific, let’s take a look at this brief explanation.
Three Tiers Types of Court in Indonesia
As mentioned above, there is three tiers court in Indonesia. The main court in a country is called as Supreme Court (Mahkamah Agung) which is located in Indonesia’s capital city; Jakarta. It belongs to the judicial branch of the presidential system.
This highest court is a final for all kinds of issues among society, from criminal to another case, http://184.108.40.206. It has a powerful influence on the constitutional with the capacity to review all regulations over the Law (Undang-Undang), including Presidential or Ministerial Regulation.
To accelerate the court function, there are other kinds of courts before submitting a case to the Supreme Court. It is a High Court (Pengadilan Tinggi) that can be found easily in each province. Along with that, there are also Religious High Court (Mahkamah Islam Tinggi), Military High Court (Pengadilan Tinggi Militer), and Administrative High Court (Pengadilan Tinggi Tata Usaha Negara).
Under these high court and Supreme Court, each region also has a District Court (Pengadilan Negeri). By the amendment of Law No. 8, 2004, this court has the authority to verify, inspect, and decide for either criminal or civil law cases. The total district court in Indonesia is approximately 250 established in each region.
Basic Types of Courts
Regarding its level, the first place to submit a case is through District Court. When the decision can’t be accepted by all parties, you may propose to have reexamination to the High Court. Similarly, when the other party doesn’t agree with the High Court’s decision, the case can be appealed to the Supreme Court. Without considering the tiers, basically, the court can be classified as;
- General Court; the court of the general jurisdiction that leads to the High Court to deal, and finalize to Supreme Court.
- Industrial Relation Dispute Court; an alternative court to settle employment related to disputes.
- Fishery Court; a court that responsible to adjudicate all kinds of fishery crimes.
- Taxation Court; it has special authority to arrange and hear all kind of taxation disputes.
- Juvenile Courts (Pengadilan Anak); it handles all the case of prosecuting unmarried children aged to 18.
- Human Rights Courts (Pengadilan Hak Asasi Manusia); it only has authority over grave violations of human rights.
- Constitutional Court; it officially legitimated on November 9, 2001. Unlike the Supreme Court, its decision cannot be challenged anymore.
Due to its authority, each court has its own specialty. Thus, people have to know the categorization of their cases before submitting a case to the court. At least, you understand the differences between these types of courts in Indonesia.
Indonesian separation of powers basically can be divided into 3 main branches; executive, legislative, and judicial. This is the best decision to give diverse powers to each branch and make checks and balances toward its presidential system. It points to ensure everything is under control.
The 3 branches need to work together to create a great government. The implementation of a democratic system can be seen in its constitution. The emergence of these 3 branches is prevention to avoid the reappearance of corruption, collusion, and nepotism that fertility wormed in New Order (Orde Baru).
The highest executive power in Indonesia belongs to the president and vice-president who are elected by the general election. In the presidential constitution, they have a huge responsibility to be both the head of government and state. However, the president has an exclusive right to choose minister heading departments aside his aides.
Based on the Indonesian separation of powers, the President and all his staff in the Office of the President are the centers of the executive branch. The power has to manage national affairs and the relation with other foreign nations. Specifically, it consists of President, vice-president, and all the cabinet members.
Along with its duty to be the head of state and government, the president also has a responsibility to be the Commander-in-Chief for the armed forces. Thus, the president not only represents Indonesia at official events but also acts to the highest administrative leader.
In Indonesia, the president is elected every 5 years. It has been started since 2004 to hold a direct vote by all of Indonesian. The first and newest amendment limits the president to a maximum of 2 terms of office, ratified on November 19, 1999.
The second Indonesian separation of powers is legislative that implies the House of Representatives (Dewan Perwakilan Rakyat) and Senate (Dewan Perwakilan Daerah). Like the presidential election, members are officially chosen through the general election every 5 years. The main power of DPR is to legislate and make decisions about lawmaking. Besides, it also has budgeting authority and conducts interpellation.
Meanwhile, DPD is like the Indonesian version of the Senate that weaker than the parliamentary counterpart but can act independently. It bears authorities to prepare bills and make recommendations to regional autonomy issues, merger regions, balances in every aspect between central and regional, and other management.
Some of the DPR and DPD congregate an institution named People’s Consultative Assembly (Majelis Permusyawaratan Rakyat). The members are from the chosen candidate of DPRD and DPD. As a separate entity, it has the authority to amend the 1945 Constitution, appoint the president’s position, and others.
To make the presidential system work balanced, Indonesia has the 3rd branch that works independently. The judicial branch consists of both the Supreme Court (Mahkamah Agung) and the Constitutional Court. The main authority is to conduct judicial reviews through the laws.
Mahkamah Agung is the highest judicial institution for all matters and issues to be resolved. It prevails as the final court in Indonesia, to every criminal case, http://220.127.116.11 , religious, civil, military and state administrative, and the others. It has a special card named cassation appeal that can reexamination of these lower courts’ decisions.
The amendment will continuously hold to make sure the checks and balances can be appointed. It indicates how people live and Indonesia and how well the protection of human rights. The 3 branch of Indonesian separation of powers has its own part to make all the constitutional system better.
Having a big influence from the Roman-Dutch model and customary law, the justice system in Indonesia hasn’t changed too much. Besides, two other aspects have an obvious impact on the system; criminal codes and Islamic-family codes. Even some laws seem to turn back to the colonial era where Dutch colonialized Indonesia for almost 350 years.
Regarding Indonesia’s development, the improvement of the democratic system has drawn a great impact since the ouster of Suharto. Unfortunately, the different result makes the judicial system requires some effort to work better. Mostly, the distraction to Indonesia’s court system comes from inefficiency and poorly trained staff, corruption, and financial constrain.
Indonesia has used trias politica to make everything works. Unlike the other, the judicial branch is greatly independent. It is coequal with both legislative and executive branches. At the apex of this judicial system, there are Constitutional Court and Supreme Court. Each court has a different court system below.
How Does the Justice System in Indonesia Work?
The Indonesian judicial system has worked differently from its original system before. Now, it is no longer under the executive branch that has officially been political and administrative control. The Supreme Court as the highest courts in this system has 51 judges who are divided into 8 different chambers, while the Constitutional Court has 9 judges.
Originally, the member of both Constitutional and Supreme Court judges are appointed by the president with a parliament agreement. Each chosen judges has mandatory retirement at 70. Indonesian legal system itself has a complex system with 3 sources of law; adat or customary law, Islamic law (sharia), and Dutch colonial law.
As one of 3 main systems of law since the 19th century, Dutch colonial law has played an important role in Indonesia’s institutional of criminal justice and criminal jurisprudence. It is the only one that is codified uniformly to all the national territory. It is administrated towards a hierarchy that led to the Supreme Court. However, it is considered as the most corrupt branches in the government system by most Indonesians.
Criminal Justice System in Indonesia
In reality, numerous factors limit dealing with a criminal case. We can’t deny that criminal justice in a more urban area, like in Java, has more trained legal personnel and better infrastructure.
The procedures sometimes deal with either political or ordinary crime. Moreover, Indonesian prefers to not include the formal legal system in every conflict they have. The revenge or retribution is still being the most common way to settle with all the disputes, mostly from big towns.
For minor cases in a rural area, criminal cases mostly are settled by the village chiefs. Complains often can’t be filled with the right authorities. Whether in villages or cities, more cases are settled out of the court system to save time or money and avoid too much public attention. The wealth or status from someone is often considered as an important factor to impact the final outcomes.
After the fall of New Order and Suharto, the corruption case has grouped in special crimes under the jurisdiction of the anti-corruption courts along with the special Commission to Investigate Public Official’s Wealth. The transition to being a more democratic country has changed a lot of the justice system in Indonesia from time to time.
The Definition of Advocate
The term advocate had actually been known since Roman times whose position was called officium nobile advocate (a noble profession). It devotes itself to the interests of society, as well as its obligation to uphold human rights. Moving in the dadu online moral field in helping people without expecting honorariums.
Another translation states that advocate is meant as advice. An advocate can be called a legal advisor because of his work in the court as an advisor. The term legal counsel / legal aid and advocate/lawyer is an appropriate term with its function as a companion to the suspect/defendant or plaintiff.
By the definition, the advocate is divided into two terms, they are a lawyer and a legal consultant. A lawyer is a person who helps both the plaintiff and the defendant and is appointed by certain High Court and the boundaries of their duties are only allowed within the jurisdiction of the High Court.
Whereas a legal consultant is someone who does not need to have a license to practice as an advocate or lawyer. But he must have sufficient knowledge about dispute resolution in the legal field. However, both legal consultants and lawyers basically have the same functions, roles, and responsibilities.
The Duties and Roles of an Advocate
The implementation of law in society is very dependent on the legal awareness of a society because it is the subject of law. In addition to depending on the legal awareness of the community. It also depends and is very much determined by the implementation of law enforcement by the authorities.
Therefore, many legal regulations cannot be implemented properly because law enforcement officers do not have enough understanding in carrying out their duties and responsibilities.
The duties and responsibilities of an advocate and must be considered in handling a case such as:
- Uphold the professional code of ethics
- Guiding and protecting his clients from worldly disasters in order to find truth and justice that satisfy all parties, in accordance with legal, moral and religious values
- Assist in creating a simple, fast and low-cost court process, as well as a final case settlement
- Respect judicial institutions and judicial processes in accordance with legal, religious and moral norms
- Protect his client from the wrongdoing of other parties and protect him from doing wrong to other parties
- Upholding the mandate given by his client with full responsibility both to his client, self, law, and morals, and to God Almighty
- Provide periodic reports and explanations to his clients regarding the tasks entrusted to him
- Avoiding various forms of covert extortion of clients
- Be sympathetic and share the feelings of the client, even prioritizing the interests of his clients over his personal interests
- Between legal counsel or advocates with their clients must be established a relationship of mutual trust and trustworthy so as not to harm each other
- Carry out professional duties as a legal service provider acting honestly, fairly and responsibly based on law and justice
- Advocates are also obliged to provide free legal assistance to poor clients
The Analysis of the Role of Advocates in Law Enforcement
Law enforcement in the broadest sense includes activities to implement and apply the law. And also take legal action in order to give justice to any legal cases both through arbitration and judicial procedures and much more.
In fact, in a broader sense, law enforcement activities include all activities that are intended. So that the law as a normative tool that regulates and binds the legal subjects in all aspects of community. It makes state life is truly obeyed and actually carried out properly.
Shortly, law enforcement aims to enforce justice for any cases, deviations, and violations. Particularly through the process of the criminal justice process which also involves prosecutors, police officers, attorneys, and judicial department.
Basically, law enforcement can be carried out correctly and fairly if there is a support from the community. And Also the related elements which are mutually sustainable to uphold the goal and objectives of the law itself.
From law enforcement, they must meet formal and material requirements. The formal terms determine whether a legal representative is valid. While the material conditions describe what the attorney does is really the will of his client. If there is a difference between a formal party and a material party, then the material party win which is the client, as an interested party.
Judges in actualizing the idea of justice require a conducive situation, both derived from external and internal factors from within a Judge. If traced, the factor that influences the Judge in transforming the idea of justice is the Independence of Judiciary.
The freedom of justice has become a necessity for the rule of law). Judges will be independent and impartial in deciding disputes, and in such a conducive situation, Judges will be free to transform ideas in the consideration of decisions.
Judicial power is an independent power, meaning that apart from the influence of governmental power, in connection with that, a guarantee must be made in the Law on the Position of Judges.
Independent judicial power has two objectives. The first is to carry out the functions and authority of the judiciary honestly and fairly. Secondly, so that the judicial authority can play a role in supervising all actions of the authorities
The Roles of Judges
1. Upholding Truth and Justice
Upholding truth and justice is not enforcing legislation in the narrow sense, that is, judges do not act as the mouth of the law and judges must not play a role in identifying truth and justice in the same way as a formulation of legislation.
2. Judges must be able to interpret the Act actually
To apply the law based on the development of conditions, time and place, the applied law must be under the public interest and problems of the present society.
However, the judge still needs to interpret and determine the law despite it departs from the common basic idea contained in the philosophy of the nation and the purpose of the relevant laws.
3. Judges must dare to play a role in creating new laws or as law-makers
In the case that the provisions of the law do not regulate a problem regarding a concrete case. The judge must play a role in creating a new law adapted to the awareness of the development and needs of the community.
This can be realized by the judge by delving into people’s life awareness. And from that experience, the judge tries to find the basis or principles of the new law. Even when it must move from the common basic ideology of the nation’s philosophy and the purpose of the relevant laws.
4. Judges must dare to play the role of contra legem
In this case, the judge must dare to get rid of the provisions of certain articles of the law. Carried out after the judge examines and reviews that the provisions of the article are contrary to public order, interests and problems, then judges may create new laws or maintain jurisprudence.
5. Judges must be able to play a role in judging casuistically
In principle, each case contains a particular reason, so in reality, there are no cases that are exactly the same. Therefore the judge must be able to play a case by case trial.
It is not justified to just blindly follow an existing ruling without assessing the specific circumstances (particular reason) that contained in the judi online case concerned and apply it casually under the concrete conditions of the case being examined.
The Responsibility of Judges
Basically, three non-essential things must exist in the implementation of functions in any field.
Firstly, the duty is an obligation that must be carried out, and then further specified on how to carry out them.
Secondly, the Apparatus, which includes the task executor consisting of executors and supporters.
Thirdly, Institutions, which is an organization related to facilities and infrastructure where officials carry out their duties.
Meanwhile the officer is getting a task means that they must be responsible for relating to three things, they are:
- Getting the trust to be able to carry out the duty
- It becomes an honor as a duty bearer and is a mandate that must be maintained and carried out.
Moral Responsibility of Judges
Based on its philoshophy, the main purpose of the judicial profession is to uphold justice. The ideals of justice that are contained in das sollen or known as normative reality must be done in das sein or also known as the natural reality. One This professional ethic also depends on the trusted guideline which has been used since many years ago. It include several points, they are hearing courteously, deciding impartially, considering soberly, and answering wisely.
According to Aristotle, the law is a collection of regulations that does not only bind the community but also the judge. The law is something different from the form and content of the constitution. Because of this position, the law oversees judges in carrying out their positions in punishing those who are guilty. Speaking of law, there are several types of laws in the world that you might need to know about.
In ancient times the law already existed in the world but not like the existing law in modern times like today, as for the various types of law, namely:
In a number of regions in Africa, Australia, Brazil, and other places still used illiterate law, in general, the form is not primitive, but because it has undergone a long evolution, eventually it still adheres to primitive principles.
Traditional law based on religion or philosophical ethics
The legal system can still be found at this time and has fundamental elements obtained from religious or philosophical sources. The basis of this traditional legal system is influenced by modern legal systems originating from Europe. It is caused by the existence of colonization. these are:
- Hindu law, is the religious law of the Hindu community that embraces the flow of Brahmanism or Hinduism with the Vedic scriptures. In India, Hindu law still applies even though it was previously ruled by Muslims or during the British Colonization. Since India became independent in 1947, then the law was adapted to European law, in particular, the English common law.
- Traditional Chinese law, which is a law that relies on the unification of justice as the boundary of obedience in society called li, then the tougher law used for lower class society is called fa.
- Islamic law, which is religious law, consists of rules derived from the Holy Qur’an, the law of God which binds every individual to all Muslims.
Modern legal system
The modern legal system is a legal system that comes out of European cultural traditions. It is the continental legal system, the Romanistic-Germanistic legal system and the Byzantine legal tradition and the Anglo American legal system, called Common law.
Continental European legal system
The European continental legal system, Romanistic-Germanistic is a mixture of elements of Roman and Germanic law. The influence of Germania originated in Rome and Germany. Until modern science, the British was familiar with the name of Civil law. Because it had the influence of Roman law, Corpus Juris Civilis which was introduced by Justinian. It is different from their own law, known as the Common law.
European countries, which are federations of the Republic of Germany. Including Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Croatia in 1990 joined the German Republic. They embrace the socialist legal system, but after the fall of the communist regime, they returned to the Romanistic-Gemanistis legal system.
Romanistic-Germanistic had previously spread through colonization. Such as Spain and Portuguese laws in Latin America, French Law in Belgium, Portugal, Africa, the United States, Canada, Dutch Law in Indonesia, Suriname. Then, the Byzantine legal tradition was found in southern Europe, southern Slavia, Romania, Bulgaria, and Greece.
Common law system
It is a law developed in England since the end of the Middle Ages. Namely the XIII – XVI centuries of justice in this case court judgments. Common law is known as Judge made law. Meaning is a legal system that does not rely on the rule of law made by the makers of the Act, but to the judge when examining a case or legal case.
The history of the common law system is Roman law, Germania law, and customary law in the middle ages. The spread of the common law system is generally used in the former British colonization region. These countries including Ireland, the United States, Canada, Australia, New Zealand, Myanmar, and others.
Ancient Greek law was the most important historical source of modern legal order in Europe. Although the Greeks were not great jurists, they did not have the Laws and did not leave law books and legal teachings. They paid great attention to what known as political science.
Greek philosophers such as Plato and Aristotle built the ideal state order. Their writing is still the starting point of today’s Political Science. And its existence is increasingly important. In some city-states such as Athens, the first democratic institutions have been formed in the world.
Basically, the law is not divided into criminal law and civil law only. However, because these two laws are most related to society, they are more widely known. What is the difference between the civil law vs criminal law?
The difference between the two is quite a lot. You are required to understand both laws. Read this article to the bottom so that you can better understand it.
Understanding of Criminal Law and Civil Law
Basically, the majority of countries in the world adhere more to the European legal system. For example, Indonesia which adheres to the law of the Netherlands. This is because of the effects of colonialism carried out by the Dutch before Indonesia’s independence for hundreds of years.
Criminal law is a series of written legal rules governing acts which must not be done or prohibited, in the presence of certain sanctions.
Criminal law contains the rights and interests of individuals in society. Criminal law can be interpreted with various interpretations of civil law. Criminal law imposed after a lawsuit.
In criminal law, there are two types of acts, they are:
Violation is an act that is only prohibited by laws and regulations. But it does not provide effects that do not affect directly to others. For instance, using a seat belt when driving a car and not using a helmet when riding a motorcycle, many other examples.
Crime in an action or bad behaviour which is forbidden by the rules because it is far from religious value, moral values, and even a sense of justice in the society.
Perpetrators who commit crimes will receive punishment or sanction in the form of punishment such as theft, rape, murder, and so forth.
Civil law is a set of laws governing the relationship between one individual and another individual. Civil law contains rules that govern inter-community relations that emphasize the interests of individuals.
Civil law is interpreted authentically, meaning that this law can only be interpreted with one meaning according to the words contained in the law. Civil law imposed by the court without a lawsuit.
Civil law is divided into 5 groups of law, they are:
· Family Law
Family law is the entire law that governs the provisions and rules regarding the legal relationship concerned with blood relatives and marriages.
· Wealth Law
Property law is a law that regulates human rights and obligations that are worth money.
· Inheritance law
Inheritance law is a law that regulates the inheritance of someone who has died given to the heirs or those entitled, such as family. Those inheritance can be play at http://18.104.22.168, should the family wish.
· Law of Obligations
The law of engagement is the legal relationship between two or more people in the distribution of assets where one party has rights and the second party has obligations and intelligence.
Difference between Criminal Law and Civil Law
Based on the definition, both criminal law and civil law are different from one another. Criminal law is a series of written legal rules governing acts which must not be done or prohibited, in the presence of certain sanctions. Meanwhile, Civil law is a set of laws governing the relationship between one individual and another individual.
Based on the contents, Criminal law can be interpreted with various interpretations of civil law. Civil law is interpreted authentically, meaning that this law can only be interpreted with one meaning according to the words contained in the law.
Based on the implementation, This law is imposed after a lawsuit while Civil law is imposed by the court without a lawsuit.
Some of the examples are such as land disputes, defamation, divorce, struggles for child custody, and patents, as well as many other examples. Meanwhile, Civil law examples include theft, rape, murder, corruption, misappropriation of tax funds, and drugs, and much more.
In conclusion, Criminal law aims to protect the public interest which has direct implications on society at large (general). Where a crime is committed, adversely affects security, peace, welfare and public order in the community. Whereas Civil law is private that focuses on regulating the relationship between individuals. Therefore, the provisions in civil law only have a direct impact on the parties involved.
The relationship between law and justice, although its basic nature is abstract. It seems to only be the scope of philosophical study. However, sustainability as a relationship between law and justice is always maintained. The historical trajectory of all schools of thought in jurisprudence always strives for justice from any point of view. Either it is viewed as an object or is seen as part of the subject inherent in the personal self.
It must be admitted that all analyses, demolition, deconstruction, and critique of the law at an implementation level are all bound by the will to realize the law in its goal of achieving justice. also read https://forsheylaw.net/dark-history-of-the-law/
Division of Justice
That is why the division of justice that has been put forward by Aristotle until now remains relevant to touch on all actions to defend the law on all sides. The law in terms of forming laws is the official binding of distributive justice (absolute; principa prima).
Whereas the work of judges whose function is to maintain the basis of justice in legislation. It is demanded to be a court that upholds the law in its form as cumutative justice (relative; principa secundaria).
Both law and justice are abstract. Therefore it is reasonable if there is a multiple perceptions of the law in its definition. Even the legal experts like van Apeldoorn came to the conclusion that they gave nothing about the legal definition. Apeldoorn only stated that the legal definition is very difficult to make because it is not possible to make it in accordance with reality.
Notion of Law
In a similar opinion, Immanuel Kant argued that “Noch suchen die juristen eine definition zu ihrem begriffe von recht”. It means there is no Jurist who can define the law correctly. Nevertheless, it is still important to put forward the notion of law.
At least as a basis to provide initial understanding in order to identify the nature of the difference with other social sciences such as sociology, anthropology, psychology, economics, politics, and so on.
On the basis of research, at least there are ten legal meanings as follows:
- Law as science which is the knowledge that is systematically arranged on the basis of the power of thought.
- Law as a discipline that is a system of teaching about the reality of the symptoms encountered
- Law as a rule, namely as a guideline or benchmark for appropriate and expected behavior
- Law as a legal system, namely the structure of the process of legal principles that applies at a particular time and place, and in written form;
- Law as officers, individuals who are closely related to law enforcement
- Law as a ruling decision for the result of the process of discretion
- Law as a process of government, which is known as the process of mutual relations between the main elements of the state system
- Law as a steady or regular behavior
- Law as an art
In outlining the legal notions in this paper, it is also important to state the legal definition described by other experts like Kusumaatmadja.
The basis of its philosophy is so important to describe these opinions. Because Kusumaatmadja succeeded in combining or in other words reconciling all schools of thought in jurisprudence. So that the legal theory that had been defended by each of their schools. They met in one unity of understanding as Kusumaatmadja called it “the legal system”.
Completely, the law is defined as “Law and Development” which is a set of rules, principles, legal institutions and any processes that bind its validity.
The scope of the “rules, principles and institutions” in defining the law is a defining channel that summarizes the natural law school as well as the positivistic school of law. Whereas “the processes that bind their enforceability” are none other than the non-legal factors. Which are the center of the study of the flow of legal history and the flow of legal realism.
Between Law and Justice are interrelated as two sides of a coin. Law without justice is like a body without a soul. Whereas justice without the law will be carried out in accordance with the wishes or intuition that in making decisions has a broad scope of discretion and there is no connection with the set of rules .
A country must have a legal system to bring justice to the community. But, many laws have turned out to create social jealousy for some minorities. Dark history of the law occurs because of the making of rules that are impartial and unjust.
Now, we want to talk about the USA laws that turned out to harm many people. Although it looks safe and secure, America apparently has a dark history of the law. At least many innocent victims actually get prison sentences to the death penalty. The following are some of the frightening laws that have ever run in the US.
1. Alien and Sedition Act
The Alien and Sedition Act was a law that immigrants fear most. This law was applied during the leadership of John Adam. He was quite popular because he was the Founding Father of the US country. Also, he was also the leader who was fighting to get freedom from the Britain.
The Alien and Sedition Act was first promulgated and signed in 1798 as a country law. According to history from trusted expert poker uang asli , this law contained the detention as well as deportation of immigrants who were considered and known as a ‘threat’ to the government of the United States.
Not only for immigrants, but several states such as Virginia and Kentucky have also officially protested due to this regulation. It was not a good luck because the governments did not even listen to them.
2. Public Law 503 and Executive Order 9066
This regulation was sparked when World War II began. This regulation was spread throughout America through the Franklin D. Roosevelt order in 1942. It contained a command to arrest all Japaneses in the USA.
The problem was still the same, the person would become a threat to the local government. After this rule spread, more than 120,000 Japanese on the west coast were imprisoned. This amount was not only adult men but also women and children. Whereas those who refused this order would also be punished and lose all their possessions.
3. Espionage Act 1917
The country would give a reward to anybody who had brilliant ideas or opinions about the USA country in the future. Somehow, the reality that existed during World War 1 where the US government made a regulation which was knows as the Espionage Act 1917 that aimed to arrest the country’s socialist thinkers.
This law was created for fear of massive military interference and recruitment. Also, many of them committed many violations and issued a slightly conspicuous opinion. In fact, to develop a country, their thinking is needed. Fortunately, this law has been revoked.
4. Sedition Act 1918
This rule was replacing the Espionage Act 1917 law which received strong protests from the citizens and community. But, after this regulation went on, things became even worse.
Most of the thinkers felt limited and restricted to express their opinions that they wanted to point out to the congress. But, the government does not consider them to exist.
All forms of opinion relating to the government would be rejected outright. Not only that, when saying about the government, the flag and also the military in harsh words would also get punishment from the government. No half-hearted, the government could torture and imprison up to 20 years in jail.
5. Transfer of Indigenous People
This law was known as ‘Indian Removal which was made and passed by President Andrew Jackson. Firstly, this rule had a specific goal so that indigenous people could learn how to grow crops in Europe countries. The president created the rule to exchange indigenous land for European goods.
Because of the rules for exchanging, Andrew moved the indigenous people from west of the Mississippi River to the north of the river.
But, instead of getting welfare, the displaced indigenous people suffered and starved so that many people died due to this regulation.
In conclusion, we know that the US is a powerful country in the world, but it does not mean that the US country has a good history, especially in terms of the law.
However, today’s law is even better because the US really wants to give real justice to the community. Perhaps, the former cruel law can be a lesson for the current government.