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THE VERDICTS OF CRIMINAL LAW JUDGES REFLECTING THE PRINCIPLES OF FUNDAMENTAL JUSTICE BASE

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THE VERDICTS OF CRIMINAL LAW JUDGES ReFLECTING THE PRINCIPLES 0F FUNDAMENTAL JUSTICE BASED ON PANCASILA Gutiarso .Koesno Adi Masruchin Ruba:I &Prija Djatmika Indonesia is a state law.This statement can befound fn Article J Verse f3 l ofIndonesia Constitution of l 945 and ts elaborated more in Act No.48 Year 2009 on Judicial PoWer—in which Article l No.1 asserts that Judicial Power refers to the power oJ a扣ee country to perorm courtf systems in order to enforce the law and justice based on Pancasila and Indonesia Constitution of 1945,in line with the status of ndonesiIa as a state law. However,in reality and practice,there has been some presupposition and suspicion that judges’verdicts are unJair,that court systems are so legalistic and unable to li/fl the justice expected by people,"for example,a case of people stealing three pieces of cocoa(case No. 247/Pid.B/2oo9fPN PWT and case No 4l 3/Pid B/2oo9/PN.Kdr) The defendants in this case were Basar Suyanto f45)and Kholil(49) People 尼el that justice has been hurz that court systems andiudges are not in the side of the poor,"justice belongs to the strong and rich ones.This study aimed at examining and analyzing two problems fn Indonesian law.Those problems are f 1)the essence of justice based on Pancasila and(2 1 the reason underlying criminal law judges in making verdic ̄relectfing the justice based on Pancasila.The results ofthe study show that the essence of justice based on Pancasila has become a philosophical way ofthinking or a philosophical system.in which the justice owns Indonesian chdrdcterist{cs of“Pancasila—based justice”.meaning that justice covers‘'divine—based justice”.“humanistic justice”.‘‘democratic nationalistic justice”,and “social justice”.This means that justice practiced in Indonesia is not formal justice,but substantial justice.The necessiy tjudges need to consider giving sentence to defendants is that the verdicts must relfect the justice based on Pancasila,meaning that the judges must formally consider the |urisdictt0nnlly relevantfacts emerging legally in cour ̄.Existing evidence must be coherent one to another based on both the Material Criminal Law Gutiarso S.H. M.H. Mahasiswa Program Doktor Fakultas Hukum Universitas Brawijaya, Indonesia.Research fields:Criminal Law. ”Koesno Adi.Prof..Dr—Guru Besar Hukum Pidana Fakultas Hukum Universitas Brawijaya fPromotor).Indonesia.Research ielfds:Criminal Law. …Masruchin Ruba’I.Profi Guru Besar Hukum Pidana Fakultas Hukum Universitas Brawijaya(Co Promotor).Indonesia.Research fields:Criminal Law. … Priia Djatmika,Dr..Dosen Hukum Pidana(Co Promotor),Indonesia.Research fields:CriminaI I aw. 389 390 US—CHINA LAW I EVIEW VO1.11:3 89 and Formaf Criminal Law.Judges also have to consider the substantial aspects,which means that the verdic ̄must consider the aspects ofjustice, expediency,and legal certainty with the upmost prioriyt of‘'Pancasila— based justice or that the justice covers “divine.based justice” “humanistic justice”,“democratic nationalistic justice”.and“social justice”. 1NTR0DUCT10N………………………………………………………………………………..390 I.RESEARCH METHOD……………………………………………………………………..393 II.RFSEARCH RESULTS AND DISCUSSION……………………………………………394 A.The Essence ofJustice Based on Pancasila.............................394 B.The Reasoning Behind the Verdicts ofJudges ofCriminal Law fc Relectf the Principles fFundamentoal Justice Based on Pancasila….. 398 CONCLUSION..….….…..….….......….…..……........….......…….......….…......….…402 .......………………….………...…….....…….....……….……….....………..INTRODUCTION Indonesia is a state law;this is stated in Article 1 Verse f31 of Indonesia Constitution of 1 945.The consequence is that Indonesia Constitution of l 945 regulates basic human rights and court systems free from any power influence.。 This is elaborated more in Act No.48 Year 2009 on Judicial Power,in which Article 1 No.1 states that Judicial Power refers to the power of a free country to perform court systems in order to enforce the law and iustice based on Pancasila and Indonesia Constitution of 1 945.and this is in line with the status of Indonesia as a state law. The dynamics in the development of the society.as the results of world development and technology advancement.have caused shifts in the values of law and regulation,not to exclude the society and citizens of Indonesia. However,some values of law and regulation are preserved in certain society based on the values that have long become the foundation of the country. which iS Pancasila.These preserved values include the values of law and justice for everybody in the society. This means that iudges applying the values of law toward cases on court must consider the values exist in the society as the basis of their verdicts.Thus,the values of 1aw and ustice and fairness living in the society can be integrated by judges in making their verdicts as their Mustafa Kamal Pasha,Pancasila,UUD 1945 dan MekanL ̄me Pelaksanaannya(Mitra Gama Widya, Yogyakarta I988),at 1 12—1 13. R.Soepomo,Bab—Bab Tentang Hukum Adat(Pradnya Paramita,Jaka ̄a 1 998),at 1 1. 2014 THE VEI DICTS 0F CRIMINAL LAW JUDGES 391 function is as law enforcers.even as law reformers. Judges must not only read laws normatively but also must understand laws deeply and comprehensively. Ifjudges do not practice the laws as they are supposed to, there will be tendency of disintegration in the understanding of laws,be it ontology.epistemology,or axiology. Those values include the values of laws and fairness for the people(including the development of justice and human rights)。:by considering all of these values,judges will be able to determine the right laws toward the cases they are working on as to make ideal sentences,covering the aspects of j urisdiction(certainty),philosophy (faimess),and expediency(sociology). In the name of justice,it is wrong for judges to only practice“legal iustice”.Judges must exercise“moraI iustice”and“social justice”as their upmost priorities .which are reflected in the great values of Pancasila.In other words,sentences iudges must make articulate the fundamental values of fainessr and justice in Pancasila.The main function of the iudicial power exercised through the court is concerned with the infiction of penalties upon those who infringe the law. This means that the iudicial power functions to solve disputes arise in the society among the members of the society or between the members of the society and the government.…In Indonesia. those in charge of solving cases have a final goa1 upon creating public order in the society through fair verdicts based oil Pancasila. Talking about iustice,we have to consider three basic ideas of law, which are commonly identified as three obiectives of 1aw,namely fairness, expediency.and legal certainty.“The philosophical value of the words ‘‘fairness’’and‘'justice”in Indonesia can be found in the second sila of Pancasila.that is“kemanusiaan yang adil dan beradab”.The word “fairness’’means that a decision and action which is based on objective Sunaryati Hartono.Peranan Pengadilan Dalam Rangka Pembinaan dan Pembaharuan Hukum Nasional(Penerbit Bina Cipta Jakarta l 975) at 9. HR.Purwoto Ganda Subrata.Renungan Hukum(MARl、Jakarta 1998),at 77. Sugijanto Darmaji,Kedudukan Hukum dalam llmu dan Filsafat(Mandar Maju,Jakarta l998),at 22— 23. . 。Then Huijbers OSC,Filsafat Hukum Dalam Lintasan Sejarah(Yayasan Kanisius,Yogyakarta l 982), at 273. Soeyono Koesoemo Sisworo,Beberapa Pemikiran Tentang FilsalCat Hukum(Penerbit Universitas Diponegoro.Semarang 1 998).at 57. Bagir Manan,Menegakkan Hukum Suatu Pencarian(Asosiasi Advokat Indonesia,Jakarta 2009),at 2.3. ・ C.F.STRONG.MODERN POLITICAL CONSTUTION 8(Sidgwick&Jackson Limited.London 1952). …Wiryono Prodjodikoro,Asas—asas llmu Negara dan Politik(Presco,Jakarta l991),at 32. Achmad Ali,Menguak Teori Hukum化egal Theor0 dan Teori Peradilan(Judicialprudence) (Kencana Prenada Media Group,Jakarta 2009).at 288. 392 US—CHINA LAW I EVIEW VO1.11:3 89 measurement,not the subjective one,as to avoid arbitrary actions.12 The second sila of Pancasila becomes the basis for fa1 the first paragraph of the Preamble of Indonesia Constitution of 1 945,and fb articles in Indonesia Constitution of 1 945,especially Article 27,Article 28,Article 28A一28J. Article 29 up to Article 3 1.Fairness and justice are also found in the fifth sila of Pancasila“Socia1{ustice is for the whole of the people of Indonesia”. However,in reality and practice,there has been some presuppositiOn and suspicion that iudges’verdicts are unfair,that court systems are so legalistic and unable to fu1t51l the iustice expected by people.“Adapting to demand or new condition and fairness in the society’’does not mean that iudges can make sentences merely by considering facts and ignoring the law itsellf Judges all over the world must resolve disputes and cases based on laws.An example of this presuppOsiti0n occurs in the case of cocoa theft.The first case is the case of Grandmother Minah who stole three cocoa belongs to PT.Intan Sari Antan(RSA).happened in Central Java. and the case was numbered as 247/Pid.B/2009/PN.PWT in Pengadilan Negeri Purwokerto.Another case is the case of people stole tree cocoa h(case No.247/Pid.B/2009/PN.PWT and case No.4 1 3/Pid.B/2009/PN.Kdr1 in Ngampel Moj oroto,Kediri,East Java.The defendants in this case were Basar Suyanto(45)and Kholi1(49).People feel that justice has been hurt since those tree peoplhe were taken into court and were sentenced simply because they stole something trivial,such as cocoa,and in other case was a watermelon.However.the corruptors who steal millions and billions from the country are left free.People feel that court systems and iudges are not in the side of the poor.who have no capabilities in defending themselves in the court;justice belongs to the strong and rich ones.The verdicts of the i udges must reflect i ustice and fairness,yet the verdicts must not out from the corridor of the court systems in Indonesia which are based on Pancasila,especially the first and fifth sila of Pancasila.Judges as the enforcers of iudicial power must always base their verdicts 0n Pancasila. This study is aimed at examining and analyzing two problems in law those are f 1)the essence of iustice based on Pancasila,and(2)the reason underlying criminal law’iudges in making verdicts reflecting the justice based on Pancasila. Subandi AI Marsudi,H.,Pancasila dan UUD 1945 aldam Paradigma Reformasi(Raja Grafindo Persada,Jakarta 2003),at 53. 2O 1 4 THE VERDICTS 0F CRIMINAL LAW JUDGES I.RESEARCH METHOD 3 93 This study is a normative-jurisdiction(1egal research)¨.that is a study on secondary data.in forms of law materials.or a library study.In jts normative meaning,this study examines 1aw norms related to{ustice and fairness in the verdicts of judges of criminal law and the implementation of criminal law.especially in the court systems of criminal law and the verdicts iudges make in a criminal case.The study also takes into account the principles of law.of criminal law.and of criminal law court systems in its process. . In addition.the researcher also determines the approach exercised in the study.In the library study of law discipline.the approach is also determined by and limited with the tradition of the developed disciplined.14 In this dissertation,philosophy approach,statute approach,and case approach are used.1 3 The philosophy approach is used in analyzing the fairness value relal[ed to the verdicts of iudges,and the reasoning iudges have in making sentence.The statute approach is used in analyzing and examining the rules in the court systems of criminal law.which regulate i udges in materializing fainess whenever a sentence mustr be made.The case approach is used in analyzing and examining the fundamental principles of justice in the verdicts ofthe judges in resolving dispute. This study is descriptive and constructive in nature,which means that the study explains and reflects.as well as constructs materials related to the duty,responsmilmes,and rights of judges of criminal law in making verdicts based on Pancasila. The materials in this study consist of three law materials.The first is the Primary law materials.consisting of Indonesia Constitution of l 945:Act No.14 Year 1970.amended by Act No.4 Year 2004.and amended by Act No.48 Year 2009 on Judicial Power;Act No.14 Year 1 985 on Supreme Court and some of its amendments in Act No.5 Year 2004 and Act No.3 Year 2009;Act No.2 Year 1986 on General Court and some of its amendments in Act No.8 Year 2004 Jo.Act No.49 Year 2009;Act No.22 Year 2004 on Judicial Commission;Criminal Law Code;Code of Criminal Procedure; Government Ordinance No. 27 Year 1 983 on the Implementation of Code of Criminal Procedure;relevant verdicts ofjudges; ethical codes in the profession ofjudges;and other relevant regulations and ”Ronny Hanitijo Soemitro,Metodologi Penelitian Hukum dan Jurimetri,Cetakan Ketiga ed.revisi, (Ghalia Indonesia,Jakarta I 998),at 1 1. JJ.Bruggink,Relekfsi llmu Hukum,Dialih Bahasakan AriefSidharta(Citra Aditya Bakti,Bandung 1996),at 142. Peter Mahmud Marzuki,Penelitian Hukum(Prenada Media,Jakarta 2005),at 93. 394 US—CHINA LAW I EVIEW VO1.11:3 89 1aWS.The second materia1 iS secondary law materials.consisting of books. scientiife iournals,research results materials from seminars or other scientitic forum related to the investigated topics,newspaper,and magazines.The third material is tertiary law materials which refer to materials taken from Indonesian language dictionary.Indonesian.English dictionary.dictionary of 1aw.and encyclopedia providing de initfion of iudges of criminal law,court systems of crimina1 law related to the investigated topic. Law materials were collected from a library study and some relevant verdicts and interview results as supporting data,in which iudges stilI become the main object of the study。 The collected law materials were analyzed and examined thoroughly to check for their consistency and were then systemized based on the research topic.The existing 1aw materials were analyzed descriptively and constructively.The research problems were examined through a library study and the results were related to the results of the study. II.RESEARCH RESULTS AND DISCUSSION A.The Essence ofJustice Based on Pancasila TO understand the essence of iustice based on Pancasila,it is necessary to elaborate the existence of Pancasila as the foundation of the county and rphilosophical foundation in the life of the country dealing with many aspects of life.including the practice of court systems as the Way for people to look for iustice.To understand the existence and meaning of Pancasila, explanation on the history,the roles and functions of Pancasila in the government system of Indonesia need to be made;thus iudges have to consider those in making verdicts SO that the verdicts are based on the fundamental principles of iustice based on Pancasila.The history related to Pancasila explains the process of Pancasila formulation(the meeting by BPUPKI:Soekamo’S speeches,Soepomo’S speeches Yamin’S speeches Jakarta Charter.and PPKI agreement). 1.Balance of Individual and Community in Justice Based on Pancasila Studies on balance are always related to the as the basis of justice philosophical aspect of Pancasila.The philosophical aspect is c0nstitutiona1lv stated in paragraph two and four of the Preamble of Indonesia Constitution of 1 945.Utilitarianism as the basis of this justice is closely related to paragraph two and four of the Preamble of Indonesia 20 1 4 THE VERDICTS 0F CRIMINAL LAW JUDGES 3 95 Constitution of 1 945.especially dealing with the terms of“fairness”and “wealth”.The balance between fairness and legal certainty oriented at the ormatifon of wealth is understood as the needs of the citizens of Indonesia. physically and psychically.From the iurisdiction perspective,this refers to how much expediency laws can bring to the life of the people.1 0 In paragraph four of the Preamble of Indonesia Constitution 0f 1 945.it is stated that“Subsequent thereto,to form a government of the state of Indonesia which shall protect all the people of Indonesia and their entire native land.and in order to improve the Public welfare.to advance the intellectual life of the people and to contribute to the establishment of a world order based on freedom,abiding peace and social iustice,the national independence of Indonesia shall be formulated into a constitution of the sovereign Republic of Indonesia which is based on the belief in the one and only God,i ustice and humanity,the unity of Indonesia,democracy guided by the inner wisdom of deliberations amongst representatives and the realization of sociaI iustice for all of the people of Indonesia”. The word“principles”reflects laws as a normative symptom.whereas the words“institution”and“process”reflect laws as a social symptom.Thus. 1aws must be integrated in the life of the country.since continuous development requires conceptions of laws which support and guide the development as the reflection of the objectives of modern laws.One of the objectives of the law is Pancasila.based iustice,referring to balanced fairness—_there is a balance among the needs of individua1.of society.and of rulers of the country under the guidance of the first sila of Pancasila.‘ 2.Philosophical Perspective on the Basic Characteristics of Pancasila Jurisdicti0nallv and constitutionally.Pancasila is the foundation of the county.However,mulrti.dimensionally.Pancasila holds many functions and positions based on its essence and existence as the crystallization of cultural values and ways of thinking of Indonesian.Seeing from this perspective, Pancasila is considered as an open foundation of the country.Pancasila is not rigid because it contains practical and universal values.and comes from the cultural values and ways of thinking of Indonesian. Pancasila is manifested as an open ideology. This means that the basic values of Pancasila are stable.However,its explanation and Otje Salman Soemadiningrat dan Anthon F.Susanto,Teori Hukum(Mengingat,Mengumpu ̄an dan Membuka Kembali)(Refika Aditama,Bandung 2004),at 156—157. 、 |btdat 159 Lemhannas,Pancasila Sebagai Ideologi Terbuka(Lembaga Ketahanan Nasional,Jakarta 1 992),at 88. 396 US.CHINA LAW REVIEW VO1.11:389 elaboration can be creatively and dynamically developed based on the needs of the people of Indonesia. 3.Basic Elements of Fainress Obj ectivity Justice iS often limited by subjective assessment on fairness.Thus, there is inharmonious relationship between the idea of iustice and its reality. In individual leve1.there iS a possibility on the occuffence of thoughts of unfair assessment of the distribution.This may happen since iustice reference iS diiferent from one individual to others.In addition there iS also a possibiliyt that each individual has their own needs which may bias their w of ass ssing fairness. The principles of fairness assessment can be based on psychology— cognitive principles.First.there iS always a cognitive processing in the assessment,as common to any other perception processing.The elements needed in such process are attention.encoding and retrieval as the result. Second.there iS always limitation or boundary in such that processing.The ifrst limitation iS the information itself.Assessment process usually needs much information.In reality.the amount and the depth of information are SO restricted.Moreover.there iS filtration process toward the information. There is also influence from the pre.existing COntexts to the results of assessment.川Third.each individual has his/her own strategy in assessing concepts.One of the procedures commonly used is the heuristic way of thinking.This strategy actually aims at accelerating assessment,maximizing the existing information.and giving good impression to the assessors by the environment.Fourth,there is always a bias on the process and Outcomes of assessment.In social psychology.there are many kinds of biases in the assessment process.Fairness assessment cannot avoid these biases as wel1. 4.Justice Based on Pancasila Pancasila as the philosophical foundation of the country holds such close relationship with the theories of truth and justice mentioned hitherto. In the sentence of‘‘in the name ofjustice based on belief in the one and only God”,there are two maj or meanings 。;the phrase‘‘in the name ofj ustice’’is always related to laws and regulations,even though in reality laws and Maman Sulaiman,Agama Negara dan Hak Asasi Manusia(Perisai,Bandung 2002),at 92. 如Maksudnya adalah dalam dimensi keadilan sosial yang menjadi dasar serta tujuan dari Pancasila. Lihat dalam Ma’ruf Abdullah.2004.Pendidikan Sepanjang Masa Solo:Bina Cendekia.Ha1.67. J.ojohansjah,R rormasi MA Menuju Independenst Kekuasaan Kehakiman(Disertasi,Bandung 2007),at 24. 20 1 4 THE VERDICTS oF CRIMINAL LAW JUDGES 3 97 regulations are not necessarily equivalent with iustice and fairness themselves.Justice has broader definition than iust 1aws and regulations.In the phrase“in the name of iustice”,there are principles of horizontal fairness.which is related to the function of court systems in the society.that is to give fairness by enacting equity between the needs of society and of individua1. In the sentence of“based on the belief in the one and only God”.there is understanding on our vertical responsibilities toward the Divine Power or God Almighty.As such,the theory of both iustice and Pancasila are unitary and complementary.Both the theories of iustice and Pancasila become the basis of philosophy on Judicial Power in Indonesia.Pancasila acts as the philosophy and a source of law of the country. The three ideas of laws by Gustav Radbruch.namely fairness. expediency,and legal certainty must be proportionally exercised.Indonesia, belonging to the Eastern culture.must be able to ideally practice those three concepts of 1aws by Radbruch under the name of the Eastern Peace. Constitutionally.Indonesia Constitution of 1 945 has never stated that legaI certainty is identical with law certainty.The use of the words“law and iustice”at the same time makes it seem that“legal enforcement or supremacy”is the same as“law enforcement or supremacy”:yet.it is not like that.This is more substantive and is not merely the enforcement of substantive or material values.In other words.it deals not only with formal or legaI certainty or formal Iaw enforcement.but also mostly with “substantive or material certainty”.This is emphasized with a statement “state courts apply and enforce laws and justice based on Pancasila”(Article 3 Verse 2 Act No.4 Year 2004.amended by Article 2 Verse 2 Act No.48 Year 2009).Court systems in Indonesia follow the statement“in the name of iustice based on the belief in the one and only God”(Article 4 Verse 1 Act No.4 Year 2004.amended by Article 2 Verse 1 Act No.48 Year 2009). It is clear that substantial values are enforced.“ In the Sixth National Law Seminar in 1 994.Barda Nawai Ali concludes that it is urgent to develop ideas related with the dispersion of i ustice that is more suitable with Pancasila.This means that Pancasila.based iustice--which means that iustice covers “divine.based justice”, “humanistic iustice”, “democratic nationalistic iustice”, and“socia1 “AMw Pranarka,Se/arah Pemikiran Pancasila fCSIS,Jakarta l985),at 283. Achmad Ali、Menguak Teort Hukum fLegat Theori)dan TeoFt Peradilan(Judicialprudence1 (Kencana Prenada Media Group,Jakarta 2009),at 287. Barda Nawawi Arief,Pendekatan Keilmuan dan Pendekatan Religius Dalam Rangka Optimalisasi an Redformasi Penegakan Hukum(Ptdnna)di Indonesia tBadan Penerbit Universitas Diponegoro、 Semarang 20l11.at 92.93. 398 US—CHINA LAW REVIEW VO1.11:3 89 justice”一needs to be developed. This also means that the exercised j ustice is not the formal justice,but the substantial justice,especially in criminal law,which emphasizes material truth and justice,and not simply formal truth and justice as in civil law. Divine.based i ustice concept iS conforming to the concept of“in the name of j ustice based on the belief in the one and only GOd”.The sentence means that there are vertical resp0nsibilities between udges and God Almighty.Law enforcement must not only be based on laws and regulations. but also be based on divine demand.This demand is reflected in the Holy 0ur’an ofthe Moslems in fa)An.Nissa Verse 58,(b)An—Nissa Verse 135, (c)A1-Maidah Verse 8,(d)A1一Maidah Verse 42,and(e)Asy-Syuura Verse 1 5.It can be concluded that law enforcement means: a.Law and truth must be enforced to anybody.without any diierence fin the practice.be it to oneselL family,relatives,and groups; b.Law and truth must be enforced objectively by avoiding subjective things or natural drives. Therefore.“divine guidance’’takes into account the principles of equality.objectivity non—favoritisme or non—nepotisme,and faimess or i art ty. B.The Reasoning Behind the Verdicts ofJudges of Criminal Law Which Relectf the Principles ofFundamental Justice Based on Pancasila 1.The Definition of Verdicts and Forms of Verdicts in Criminal Law Cases A verdict is a statement by iudges as rulers of the country having rights and respOnsibilities。stated in trial opened for public,and aims at resolving disputes between parties.Based on the regulation in Article 1 No.11 Act No 8 Year 1 98 1 on Hukum Acara Pidana or known as Kitab Undang—undang Hukum Acara Pidana(KUHAP) a verdict iS a statement by iudges stated in an open trial,which can be in forms of sentence giving punishment or reeifng the defendants based on the relevant regulations.Article 1 9 1 and Article 1 93 KUHAP state that there are three types of verdicts: a.The defendant is freed,since the charges cannot be legally proven and are not legally certain in the eye of law(free/Vrijspraak):in the results of the study there was a verdict No.942/Pid.B/2003/PN KPj: b.The defendant iS freed from all charges.since the charges are proven but the action cannot be categorized as a crime ffree from all lbid at 73.75 。Ibid. 20 l4 THE VERDICTS 0F CRjMINAL LAW JUDGES 399 charges//Onslag van alle rechtvo in ;in the results of the study,there was a verdict No.691/Pid.B./2012/PN.Kpi: c.The defendant is sentenced to punishment if the court agrees that the defendant has done a crime he/she is suspected for and there is no reason as to excuse or forgive his/her crime(sentence to punismenth/Verordeling):in the results ofthe study,there was a verdict No.645/Pid.Sus./20l1/PN.Kpi. 2.Examination,Legal Evidence,and Examination System Based on Code of Criminal Law and Code of Criminal Procedure In Article 1 83 Code of Criminal Procedure,it is written “a iudge shall not impose a penalty upon a person except when with at least two legal means of proof he has come to the conviction that an offense has truly occurred and it is the accused who is guilty of committing it”.Article 1 84 in the Code of Criminal Procedure states that“lega1 means of proof shall be:fa the testimony of a witness,(b)the testimony of an expert,(c)a document,(d) an indication and fe1 the testimony of the accused”. From those articles.there is urgency for the court to present at least two means of proof that will convict the i udges that an offense has tulry happened.These two prerequisites must be met.and when they are fulfilled, iudges can then impose a penalty to the accused,and the vice versa--when these two requirements are not there,the iudges cannot impose a penalty to the accused.Thus,the examination system based on Code of Criminal Procedure is the Negatif wetteli/k bew ̄stheorie.since the two requirements needed have already been reflected in the two articles(Article 1 83 and 1 84) in the Code of Criminal Procedure.In other words.the lawmakers have decided that the most effective examination system for Indonesia law system is the negative system.2 3.The Main Function of Criminal Law Judges in Making Verdicts Reflecting Justice Based on Pancasila As the power in the system of the country,Judicial Power is the foundation of power underlying the implementation of court systems for the sake of 1aws and iustice as to create and maintain public order. ConstitutionallV this has been regulated in Chapter IX Article 24.24A. 24B.24C.and 25 Of the Indonesia Constitution of l 945.This regulation has changed the map of the iudicial power since in addition to the Supreme Court.there js also the Constitution Court(vide Article 24 Verse 2 of the "Andi HamzahHukum Acara Pidana Indonesia(Sinar Grafik Offset,Jakarta 2008),at 68—76 ,400 US—CHINA LAW REVIEW VO1.11:3 89 Indonesia Constitution 0f 1 945). The arrangement of the Judicia1 Power in Article 24 of the Indonesia Constitution of 1 945 is a consequence to fu1 1l the elements making up a state law or rule of law—in which Indonesia as a state law has to build its nation on the foundation of constitutional system.This means that Judicial Power and every action it exercises are free from any oppression as to create equality before the law for every Indonesian citizen.to have the citizens adhere to the rules and regulations,to create a democratic nation,and to create social iustice for all citizens of Indonesia.Judges are free,but are bound to their Professional Code of Ethics and Professiona1 Behavior Guidance. As such,in doing their work,judges must bear in mind that they must follow the laws,emphasize truth and iustice,bind themselves to the ethical codes.and comply to the principle of equality before the law. In addition,the ethical code of iudges is also called as Code of Honor. These reflect the five good characters iudges must possess,either as a iudge or as a civilian.The characters related to their profession are those related to courts,to colleagues,to subordinates,to superOrdinate,and to other institutions.As a personal,those characters are related to their households and family and their society.Those five characters are reflected in the symbo1 of iudges known as Panca D厅arma,that are Kartika,Cakra Candra, Sari and Tirta.Therefore,it is expected that iudges will be prudent,wise, fair,responsible,loyal,disciplined,down to earth,humble,independent,and professiona1.As come to those characters and to have an integrated{ustice system,there is a need to have common regulations concerning supervision toward judges and constitutional judges. The chairperson of the Supreme Court and the chairperson of the Judicial Commission have signed Guidance of Professional B ehavior. mentioned in the mutual document between the Supreme Court and the Judicial Commission No. 1 47/KMA/SK/IV/2009 and No. 2.02/SKB/P.KY/IV/2009 on Professional Code of Ethics and Professiona1 Behavior Guidance. Common courts as the doer of iudicial Dower under the Supreme Court have main functions of exercising the court system to enforce 1aws and iustice based on Pancasila and the Indonesia Constitution of 1 945.Judicial power must follow and be based on the principle of“Justice based on the belief in the one and only God”. The common principle is that each individual has the same rights and 船http://judgejegeg.wordpress.coil],posted on May 13,2010,diakses pada tanggal 20 Oktober 2010. Khudzaifah Dimyati,Dkk,Potret Profesionalisme Hakim Dalam Putusan(Komisi Yudisial, Jakarta 2010),at 2-3. 20 1 4 THE VERDICTS 0F CRjMINAL LAW JUDGES 40 1 obligations.This is the main principle to consider when it comes to the distribution of expediency.When this principle is disturbed.effort must be done to put it back into its rightest position.From this tradition,iustice is seen as maintenance or recovery of balance or proportion,and the main rule is“treating the same things in the same ways”.although we have to treat different things differently. Judges’main duties and functions are to examine and decide cases:and they have to act professionally and be responsible to the laws.society.moral values.conscience and God Almighty as the highest priority in consonance with the principle of‘'j ustice based on belief in the one and only God”. The verdicts iudges must make prioritize the principles of fundamental iustice,by considering the 1aws living in the society,such as religious views, social values.sociological aspects of laws.and culture of laws.There is individual justice,the justice of speciifc group of people,and the justice of other groups of people.The fair verdicts reflect the right process and procedure,transparent,and accountable.Justice is a creative—constructive ,principle and moral virtue. In the perspective of Islam.there are norms seen as precedence,as they reflect justice as written in An.Nissa Verse 58 stating that“Indeed.Allah commands you render trusts to whom they are due and when you iudge between people to iudge with iustice.Excellent is that which Allah instructs you.Indeed.Allah is ever hearing and seeing”. An.Nissa Verse 1 35 states that“O.you who have believed.be persistently standing firm in iustice,witnesses for Allah,even if it is against yourselves or parents and relatives.Whether one is rich or poor.Allah is more worthy of both.So follow not(persona1)inclination lest you not be iust.And if you distort(your testimony)or refuse(to give it1,then indeed Allah is ever with what you do.acquainted”.Al—Maidah Verse 8 states that: 0,you who have believed,be persistently standing firm for Allah,witnesses in justice,and do not let the hatred of a people prevent you from being just.Be just;that is nearer to righteousness.And fear Allah;indeed,Allah is acquainted with what you do. A1.Maidah Verse 42 states that“(They are)avid listeners to falsehood. devourers of(what is1 unlawfu1.So if they come to you,fO Muhammad), iudge between them or turn away from them.And if you turn away from them,never will they harm you at all_And if you iudge,iudge between them with iustice.Indeed,Allah 1oves those who act iustly”.Asy.Syuura Verse 1 5 states that: ∞HLA HartKonsep Hukum(Nusa Media,Bandung 2009),at 246. ,Majid Khodduri,Teologi Keadilan Perspektflislam(Risalah Gusti,Surabaya 1999),him.8 402 US—CHINA LAW I EVIEW Vo1.1 l:3 89 So to that(religion of Allah)invite,(O Muhammad),and remain on a right course as you are commanded and do not follow their inclinations but say.“I have believed in what Allah has revealed of the Our’an,and I have been commanded to do i ustice among you”.Allah is our Lord and your Lord.For us are our deeds,and for you your deeds.There is no(need for1 argument between you and us.Allah will bring us together.and Him is the(final1 destination. Thus,it is not hyperbolic that in our lives,we have to create justice based on Pancasila,indicating a belief to God the Almighty,and humanistic iustice as well as democratic.nationa1istic justice. Thus,a verdict iudges must make includes the principles of fundamental iustice,and the values of legal certainty and expedience.The manifestation of those values can be taken as an indicator of quality of the verdicts. 一 ’ Judges play such an important role in the enforcement of law;thus.in criminallaw,judges are seen as the one comprehending alllaws,the one determining the white or black of the 1aws through their verdicts.There are not any laws whose regulations cover al1 human possible problems and disputes due to the dynamic characteristic of the problems themselves. Therefore we come to an understanding that in making verdicts, criminal law i udges must take into their account the fundamentaJ j ustice of Pancasila and the Constitution Of 1 945 as to maintain the principle of state law. CONCLUSION Based on the afore presented explanation,some conclusions can now be drawn.Fundamental principles of i ustice based on Pancasila becoming the philosophical waV Of thinking or philosophical system do not automatically mean that it will cause conf1icts or disintegrati0n of the implementation of Pancasila itself.Pancasila is not static in nature.It has always been dynamic since its starting point.This dynamic characteristic has strengthened the position of Pancasila as a way of life.philosophy of the country,national ideology.national identity.the lofliest source of laws and regulations and sublime agreement of Indonesia.Pancasila has to be manifested in all aspects 0f 1ife.Justice in the perspective of the country must own Indonesian characteristics of“Pancasila—based iustice”,which means that iustice covers“divine.based iustice”,“humanistic justice”, Barda Nawawi Ariel op cit..him.73.75. ”Paulus Hadi SupraptoDkk,Menemukan Substansi dalam Keadilan Prosedural(Komisi Yudisial ,Republik Indonesia,Jakarta 20 10),him.9. 20 1 4 THE VERDICTS OF CRIMINAL LAW JUDGES 403 “democratic nationalistic iustice”,and“social iustice”.This means that iustice practiced in Indonesia is not formal ustice,but substantial iustice, especially in the case of criminal law.which emphasizes more on material truth and fairness,and not formal truth and fairness,iust in the case of civil law.Since it is understandable that Pancasila is the foundation and philosophy of the country and the highest source of 1aws.criminal laW i udges have to make verdicts echoing the values of Pancasila--in making verdicts iudges have to contemplate laws and the principles of iustice from the perspective of Pancasila,that iS iustice which iS proportional and balanced and which protects the interests of individual,personal,and public (substantive justice)as wel1. The necessity iudges need to consider in giving sentence to defendants iS that the verdicts must reflect the iustice based on Pancasila;which means that the iudges must formally consider the iurisdictionally relevant facts emerging 1egally in courts.Existing evidence must be coherent one to another based on both the Material Crimina1 Law and Formal Criminal Law. The verdicts can also be based on suitability between norms and facts found in the case examination.At the end,the verdicts have such binding force, evidence force.and executoriaI force based on Material Criminal Law and Formal Criminal Law.Judges also have to consider the substantial aspects. meaning that the verdicts to the aspects of iustice expediency,and legal certainty in which the upmost priority is“Pancasila.based iustice”,which means that iustice covers“divine.based iustice”,“humanistic justice” “democratic nationalistic iustice”and“social justice”.This means that the iustice exercised iS not the formal one,but the substantive justice. Understanding the fundamenta1 principles of iustice based on Pancasila also means that we understand the characterjstic of Indonesia as a state 1aw.in which it iS recommended that iustice exercised covers the principles of “Pancasila—based iustice”,which means that iustice covers“divine.based iustice”,“humanistic justice”,“democratic iustice,nationalistic iustice”,and “social j ustice”. This means that the enforced iustice in the court system iS the substantive iustice,not the formal one.This must become the slogan and guidance for i udges and the Judicial Commission which later has to be put into a mutual agreement between the Supreme Court and Judicial Commission.Thus.some policies in criminal law must be revised as wel1. 

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