Artikel Bahasa Inggris Hukum

Pancasila

Pancasila is the ideology of the Republic of Indonesia, and the pearls of wisdom contained in it should be fully implemented.

An Indonesian is a believer of the six major religions in the country: Islam, Protestant, Catholic, Buddha, Hindu, and Konghuchu, for the first principle of Pancasila is ‘Belief in God Almighty.’

Indonesia consists of more than 300 ethnic groups, but there is a harmonious existence among these different groups.

Our motto is “Bhinneka Tunggal Ika” or the English equivalent is “Unity in Diversity.”

Many Indonesian undertake humanitarian activities, for the second principle of Pancasila is “Just and Civilized humanitarianism.”

Indonesians do not believe in the doctrine of communism, nor does the State recognize the existence of the party in the country.

The third principle of Pancasila is “The Unity of Indonesia” and this principle stresses the feelings of solidarity and being one nation in the minds of the people.

Indonesians reach a decision through consultation and consensus, for the fourth principle of Pancasila is “Democracy based on Consultation and Consensus.”

The fifth principle of Pancasila is “Social Justice,” yet many Indonesian still live in poverty.

Many forces have tried to destroy Pancasila as the basic ideology of the country, but these forces have been successfully crushed.

Leaders of our country saw the need for implanting the State Ideology in the minds of the people, so a course in the Directives and Implementation of Pancasila is required.

Leaders of our country also feel the need for implementing the pearls of wisdom contained in the five principles of Pancasila, so the People’s Consultative Assembly decreed “Ketetapan MPR II, 1978,” officially known as P-4.

Pancasila should not only remain in Indonesian history books to be read only in a while and to be regarded as a thing of the past, for Pancasila is the most valuable possession of the state. The P-4 course was first given to government officials from the lowest to the highest echelon, but now it is given also to the society at large.

Pancasila should pervade all aspect of life in Indonesia, so the country is governed and led by honest and ethical officials.

The P-4 course is comprised of lectures and discussions on the history of Indonesia. Pancasila, The 1945 Constitution, The Guidelines of The States Policy, and The Five-Year

Development Plan, and it also contains lectures on the interrelation of these Five subject with regard to national development, equity, prosperity, and national stability.

The Legal Aid Institution

The Legal Aid Institution’s mission is helping the poor regardless of their religion, opinion or political ideology. This legal body consists of young, promising, lawyers ready to assist those poor people needing to defend their own basic rights. Sometimes this body also has to undertake political and subversion cases. In doing so, the young lawyers are considered acting against the authorities. However, they have to stick to their basic principal-giving assistance to people who are oppressed and in need of legal aid. The following is an illustration of how the institution has helped the oppressed. Miss Sri Mersing lost her money in a business venture. She was cheated by her business partner, who admitted having received her money. Because she was a very influential man, Miss Mersing could not do anything about it. Nevertheless, she did not give up hope. She went to the Legal Aid Body for legal assistance. Through the advice of the lawyers in the institution, Miss Mersing was able to take her ex-business partner to court.

Adat and Customary Law

The term ‘Adat’ has long been accepted by Indonesians and has become familiar to Dutch jurist and ethnologists. It is still somewhat strange to the Anglo-American reader. The translators of this work have given serious consideration to the choice of an

English language equivalent; but no fitting English term was found. Translation of the term with ‘Customary law’ is not only clumsy but implies a different in kind from the law of civilized peoples – a distinction which is not justified in fact. Indonesians have for many centuries lived under the humanitarian impress of Hinduism and Islam; so, their law is part of a civilized heritage. ‘Native law’ would be adequate translation to distinguish adat law from Dutch law as it operates in the Indies. But the word ‘native’ carries overtones of colonial snobbishness and is distasteful to the resurgent feelings of an awakening Asia. By analogy with the terminology adopted in respect to other parts of the world, it would be proper to consider indigenous Indonesian law as ‘primitive’ law. But this term, too, has unfortunate connotation and moreover, is not practical in the present instance, because within Indonesian society one must distinguish between the adat of the great majority and that of relatively small and unimportant tribes which really are primitive in the usual meaning of that word. To call adat ‘primitive’ would be an error, since the people have lived for more than a thousand years under the influence of world religions and for three hundred years under the rule of a Christian nation.

The Judge and His Profession

One must always remember that the judge is a person, and react to headache, sleepless, nights, bores, rudeness, the opposite sex, and financial pressure as other mortal humans do. The classic error is to mistake the body within the black robe for an automation who will respond predictably to any stimulation. While some judges have greater personal qualities than others, every judge has peaks and valleys.

The judge’s personality relate directly to the way he will handle courtroom distraction. Few lay people understand how well the judge can see the courtroom from his perch. The average courtroom does not exceed sixty feed, front to back, and unless the judge is myopic he can monitor it all. Facial expression, fidgeting, whispering, and a variety of ‘look’ are all observable. Many lawyers know this and, in an effort to sway the judge, will feign shock, dismay, or surprise during their opponent’s presentation. Experienced judges are rarely taken in by these dramatics; many are offended by them, and will rebuke a lawyer for them, even in the jury’s presence.

Many judges work on unrelated paper during a tedious trial, particularly one without a jury. Some distinguished public letters were written from the bench during dry arguments. With modern time pressures on judges to produce, perfunctory orders

to be signed and draft of proposed opinions often find their way onto the bench as the dreary questioning and argumentation continue. Most judges are loathe to cut off long questioning forays of conceivable relevancy. There is a normal desire to permit everyone to be heard out to the fullest. One should feel he has had his full day court, regardless of the result. Moreover, tangential questioning is sometime profitable and judges, in charting lawyers’ courses, have few guides to help in deciding in advance whether the questioning will come to have worth.“

Order in the Court

Trial courtrooms are clearly no neighborhood social rooms. Their décor, featuring highly polished wood with governmental crest and flags, is a reminder that this is a hall of authority. Various people move officiously about, popping in and out of side doors. If any doubt persist, it is challenged by the entry of the judge, an ordinary man but cloaked in a ceremonial robe and a solemn look to the announcement of the court official: “All rise. Hear ye, hear ye, this honorable court is now in session, Judge X

presiding. All drew near, give your attention and ye shall be heard. You may be seated.” Something very official is going on and caution comes to mind quickly. This seems like an easy place in which to get into trouble.

Aside from criminal trial, where armed officers may be in the courtroom and occasionally their defendant charges may be manacled, courtroom decorum is maintained by respect for the institution and no little awe. The witnesses walk unescorted to the witness stand, the lawyers normally question in courteous

tones, and answer are similarly given; objections are made by the lawyers to the judge, ruled upon and accepted with nothing more than a courteous explanatory interchange, or an occasional exasperated objection by a lawyer.

In matrimonial dispute, there are times when an embattled husband and wife may erupt into a shouting match, but order is customarily restored by a simple admonition from the judge. However, in the corridors of courtroom, between sessions, more than one wife’s lawyer has been the beneficiary of a punch in the mouth by an irate husband.

The key to maintaining order in a court trial is the personal dignity of the judge. A shouting judge, florid of face, or snidely accusatory, will have fewer tranquil moments. Courteous judges, who avoid humor or sarcasm, run the best courtroom. Blackrobed,

elevated in height above the courtroom floor, neat, serious, well spoken, surrounded by flags and governmental seal, the judges hold great presiding advantage. Those judges

with quiet but firm bearing, who stay within their pocket of advantages, are self-generators of the respect they command.

Law and Its Accurate Perception

In our society, where iconoclasm flourishes, law continues to maintain misleading holds on popular imagination. Law is perceived as an objective force for fairness and justice, or a set fixed standard by which everyone’s conduct can be measured. But neither is the case. Perhaps the need to believe feeds the belief itself; stability and protection are eagerly sought in uncertain times of rising feelings of individual vulnerability. Whatever the reason is, these popular perceptions are wildly inaccurate, principally because they fail to take into account the actual nature of the legal process and the critical effect of “Lawyering” in projecting the law. The ideals are illusion; the law is what lawyers say it is.

Lawyers are reasonably obvious features of our legal system. But how many people know what the law really is and what lawyers really do? What make the members of this vocational group, who function not only in their profession but also as leaders in government, business, and nonprofit institutional sectors, think as they think and do as they do? There are compelling reasons to seek better understanding, because the

working of law is a public monopoly, and exclusive franchise for the guild of lawyers, a great social grant by the many to the few. Despite the immense social significance of lawyers, not much is told, in the endless ranks of moldering tomes in our libraries, to

laymen of lawyers.

Legal Foundations and Organization of Courts of Justice

Article 24 of the Constitution stipulates that judicial powers are vested in the hands of a Supreme Court and other judiciary bodies established by Law. The official explanation of the Article clearly shows that the purpose of the Article is to create the foundation for an independent judicature as one of the pillars of a democratic state based on the rule of law.

The Supreme Court stands at the apex of this independent complex of the state organs which consist of all the court of justice throughout the country. At the present time, there are in Indonesia Four Branches of the Judicature:

1. General courts of justice;

2. Religious courts of justice;

3. Military courts of justice

4. Government administrative courts of justice.

The courts falling within the general judicature try all criminal and civil cases in which any person within the territory of the state is involved. The court falling within the religious judicature tries civil cases in which the disputing parties are person of the Islam faith and which, according to living reality in the field of law, concern matters that should be judged according to the tenets of the Law of the Islam Religion (marital affairs and, in some regions outside Java, inheritance affairs).

The court falling within the military judicature try criminal cases where the accused is a member of the Armed Forces. The Courts falling within the government administrative judicature try cases in which someone bring an action against the Government for infringement of the law or misuse of powers by state organ or a government organ resulting in losses for the person concerned.

During the Dutch colonial era, the judicature suffered from a dualism because there were two categories of law courts: the European courts which tried cases where the accused was European or, in civil cases, where the person against whom the action was brought was a European or a Chinese, and the Indonesia courts which tried cases where the accused or the person against whom the action was brought was a native Indonesia.

The stipulation that Chinese persons were sued in the court of justice set up to try Europeans came about because of the fact that practically the entire European Civil Code had been made applicable to Chinese.

This dualism which was based upon discrimination between Europeans and Indonesians was brought to an end by the Japanese Army because its occupation of this country.

The general courts of the justice by the Dutch during Colonial times were not established in all parts of the country because in many regions, the people were “left to enjoy their own justice.” In such regions, law was administered by “Native Court” which was also known as “Customary law courts.”

These courts had existed in the Indonesian society during ancient times and were run by the village elders. But after the Dutch East Indies Government came into being, they were placed under the control of a local government official of the Dutch nationality (Known as a “Controleur”).

In this way, the Dutch sought to run their administration in Indonesia at the lowest possible costs of Dutch interests in the regions in question (Most of which lay outside Java) were still very limited.

The Indonesian government, being obligated by the Constitution to set up an independent judicature, enacted Law No. 1/1951 which brought about uniformity among courts of justice throughout the whole country. Among other things, this law abolished the customary law courts referred to above.

The Constitution of The Republic of Indonesia/ 1945 Constitution

In UUD 1945, Article I paragraph (3) it is affirmed that, “The state of Indonesia shall be based on the rule of law.” As a law-based state, hence the state is obliged to arrange orderliness of the society and the same time is obliged to strive common prosperity for all the people. To realize it, government releases various state regulation called “Law and Regulation.” All the law and regulation must be based on UUD 1945 and at the same time function to implement provision which is written in UUD 1945.

The 1945 Constitution is the highest legal authority in Indonesia, of which executive, legislative, and judicial branches of government must defer to it. The constitution was written in July and August 1945, when Indonesia was emerging from Japanese

control at the end of World War II. It was abrogated by the Federal Constitution of 1949 and the Provisional Constitution of 1950, but restored after the President Soekarno’s decree on 5 July 1959. During the 32 years old Soeharto’s Administration, the constitution had never been amended. Soeharto refused to countenance any changes to the constitution and the People’s Consultative Assembly passed a law in 1958 requiring national referendum for the constitution amendments.

After the Soeharto’s fall in 1998, the people Consultative Assembly amended the constitution four times in 1999, 2000, 2001, and 2002. Important amendments include the direct presidential election by the people (Third Amendment) and the presidential office term from unlimited to only two (First Amendment), the regulation of which had made the possibility for Soeharto’s Administration held in office for more than five terms.

After the last amendment, the people Representative Council gained more power to control the executive branch, the regional Representative Council was established, and regional government was recognized in a section and expanded about Civil Right among other changes. Currently, the Constitution consist of 16 Sections and 36 Article.

The House of Representatives

The Parliament, or the house of Representative (DPR), is a high body or institution of the state. It consists of representatives of the people elected to office through the political parties and the ‘functional’ group. The structure of the body is prescribed by statute and it is to sit at least once a year. All statutes of the nation require its agreement or approval in order to become law. This law-making process is shared with the president, who must ratify all statutes; any statute enacted by the parliament and not so ratified is without force of law.

The house or Parliament is given express power to determine the annual budget, to fix taxes, to prescribe kinds and value of currency an in general to regulate the financial matters of the nation. With the president, it declares war, makes peace and concludes treaties. It is explicitly authorized to determine the divisions of Indonesia and the structure of regional government, the form of the People’s Consultative Assembly and Supreme Advisory Council and of itself, to regulate the judicial power, to prescribe the structure of the court and the conditions for becoming a judge, to determine the conditions of citizenship and the requisites of national defiance and to regulate the nation’s educational system. It is also given ultimate power over emergency acts promulgated by the President. Without the agreement of the parliament, unless such acts are approved by the parliament at its next session following promulgation, they

must be withdrawn.

Parliament or the House of Representative has no authority to amend the Constitution that functions being in the hands of the People’s Consultative Assembly. The legislative power of Parliament as stated above seems to be unlimited, especially from the point of view of Parliament as manifestation of the sovereignty of the Indonesian people. Parliament does not only have legislative power, but it also possesses budget rights; thus, Parliament has financial control over the government.

Chapter III of the 1945 Constitution states, among other things, that the President of the Republic of Indonesia holds office in the government according to the constitution; in performing his duties as President, he is assisted by a Vice president.

The Rights of the Suspect

As we know, a criminal procedure can be divided into two parts, the preliminary investigation and the trial before the court.

The trial before the court is, as a rule, open for the public and based upon the accusatorial principle, according to which the accused person and the public prosecutor have to be considered and treated as two equal parties having a dispute before an impartial judge.

Under the control of public opinion there will be held a debate between the two parties, fairly and with the guarantee that the accused person or the defense counsel will have the last turn to speak.

There is also a general principle that the accused person during the preliminary investigation is based upon the regulations now in force in Indonesia.

The laws concerning the criminal procedure are contained in the “Reglemen Indonesia yang Diperbaharui” meaning the “Revised Indonesian Regulation,” promulgated in the Dutch Colonial time (in the year 1941), and being a revision upon the old Reglemen Indonesia, which originated from the year 1848.

The “Revised Indonesian Regulation” foresaid, further to be called “The Regulation,” contains in its whole the law of procedure, both the criminal and the civil procedure, as being in force before the Pengadilan Negeri, that is the District court, the court of first instance.

Investigation and Prosecution

The preliminary investigation itself can be divided into the investigation and the prosecution.

The investigational apparatus is the State police headed by the Head of State police, whereas the prosecution apparatus is headed by the Jaksa Agung that is the Attorney General.

The prosecution apparatus consist of Jaksas, and public prosecutor.

To forward a case before the court there is needed a file made up by the competent officials, containing statements both of the accused person and the witnesses.

According to the law, the officials who have the authority to make up such a file are the prosecutors and the so-called assistant prosecutor.

Assistant prosecutors are officials of the State police with the rank of at least inspector and officials of other services, as for instance the customer, who are appointed as such by the Attorney General.

The distribution of authority among the State police and the Public Prosecution is so, that as a principle the police is carrying out the investigation while as a principle the Public Prosecutor does the prosecutional work. In other words, the Police collect evidence in a crude form whereas the Prosecutor refines and reinforces it from a legal standpoint. But, whenever the latter declares that he wants to do the investigation by himself, the police have to tend the case over to the Prosecutor (Article 40 of the regulation).

Detention

Of much importance are the conditions stipulated in the Regulation as necessary to detain a suspected person.

According to the Regulation, a suspected person can only be arrested and detained: whenever there is a reasonable presumption that he has committed a crime while for the interest of the investigation it is deemed necessary to detain him, or this detention is deemed necessary to prevent the suspect committing another crime or to flee. Further, detention is only allowed with regard to crimes as enumerated in paragraph

2 Article 62 of the Regulation.

The interest of the investigation is meant: to prevent the suspect from destroying evidence or influencing the witness.

Crimes in which according to Article 62 of the Regulation, the detentions allowed are in general those which can be punished with five years’ imprisonment or more and some crimes like: crimes violating morality, maltreatment, corruption, offences against the custom regulation, and others.

A warrant issued by the prosecutor is only valid for the term of thirty days; this is according to Article 83 c paragraph 4 of the regulation. Whenever it is expected that after expiration of this time, the limit of the investigation lead by the Prosecutor will

not yet be finished, the Prosecutor has to request for an extension of the detention to the President of the Court. It is at this moment that the judge’s supervision begins upon the detention. The judge will firstly control whether the conditions fulfilled a necessary demanding for the detention of the suspect. Further he has the power to demand of the Persecutor a report on the situation or the progress of the investigation and what time will still be needed to conclude the investigation.

So the supervision whether or not the conditions are fulfilled to detain a suspect, is laid in the hands of the judge, example the President of the District Court. But this supervision comes only into effect after that the suspect has been in detention for a period of thirty days upon the responsibility of the prosecutor.

When the Judge allows the extension of the detention, this extension will be only valid for another thirty days. Therefore, whenever the prosecutor expects that after expiration of this period the investigation will still not be concluded, he has to request for another extension.

At a certain moment the Judge will remind the persecutor that the extension is the last one to be allowed. This means a warning to the address of the prosecutor that he has to conclude the investigation and to hand over the case, accompanied with an indictment.

Whenever it occurs that the prosecutor does not pay attention to that warning and the time limit has expired while the case is still not handed over to the court, then the suspect has immediately to be released.

At the moment the persecutor is handing over the case, accompanied with an indictment, he has to request the court for a further detention of the suspect. If not, the suspect has to be released immediately. Since the moment that the file handed over to the court, the detention is upon the responsibility of the judge, example the President of the District court.

Whenever the suspect is taken into detention, then within a limit of twenty four hours he has to be interrogated by a public prosecutor or an assistant public prosecutor.

An assistant public prosecutor has also the authority to detain a suspect, under the same conditions as related above, with the difference that the warrant issued by him is only valid for a period of twenty days and when this period has expired, the detention has to be taken over by a public prosecutor.