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Monday, August 27, 2007

Criminal Justice System Modernization

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesian Constitutional Law 2007.

Introduction
Every legal system shows the four basic elements, namely: regulatory institutions, law enforcement processes, procedures and decisions by courts of law enforcement agencies [1]. In this approach the development of the legal system emphasizes on several things, namely: increasing the increasing internal differentiation of the four basic elements of the legal system, related sets of rules, implementation rules, court and law enforcement agencies and the influence of differentiation in people's basic elements are .

Thus the law review focused on the development of mutual relations between the legal differentiation of social differentiation that is possible to work back to the regulations, the ability to form the law, justice and law enforcement institutions. Differentiation itself is an inherent feature of society that is undergoing development [2].

Through this differentiation of a society broken down into a field of specialization, each of which have more or less autonomous position.
Such developments led to the composition becomes increasingly complex society. By differentiation is possible to create a society to adapt to its environment is greater.

As one of the sub-system in society, law is inseparable from the changes that occur the community. Legal besides having their own interests to make certain values in society are bound to the material provided by the community. Thus it can be said that the law is strongly influenced by the changes going on around him. [3]

According to Wolfgang Friedmann [4] changes the law in a changing society include changes unwritten law (common law), changes in law in interpreting legislation, changes in the conception of property rights for instance in the modern industrial society, changes in property restrictions that are public , changes the function of the contract agreement, the transition of responsibility to claim compensation insurance, changes in the scope of coverage of international law and other changes.
To see the relationship between law and social change have a tool in the form that explains the concept of a functional legal place in society. The tool shows the law works as 1) defining the relationship between community members to determine perbautan prohibited and may be done; 2) allocate and mnegaskan who may use the power, of who and how the procedure and 3) maintain adaptability community by reorganizing relationships in the community when there is a change [5]

If the law was used in the sense of a particular form of human work in order to organize his life, it can be found in a variety of symbols. Among these symbols of the most assertive and articulate in detail the contents are written form or in more often known by the formal legal system of the form [6].

An aspect that marks this form is uncertainty in norman-norm and the other side is the rigidity. A lot of legal certainty due to the nature of the rigidity of this arrangement and turn causes another situation like the gap between the circumstances, relationships and events in a society that is governed by the formal law.

Must be recognized, what is contained in the formal legal system is not intended to stifle the situation found in everyday life, even mebatasi and intended to change it. However, he can not escape from the material arranged. In this case there is a gap between the laws that regulate and arranged material.

Demands of the law change, started to emerge when the gap has reached a level such that the need for change more urgent. Such levels can be characterized by behavior that community members no longer feel the obligation imposed by law as something that must be executed. Thus there is a gulf that separates the legal response on the one hand and the society, on the other hand the deed should be done [7].

Changes in formal law, can be seen from the aspect relating to the functions carried out by law, concerning the notion of law as a means of integration, which is more elaborated again into a different function as social control function. With the changes, the law must run its business in such a way that the conflicts and inequalities-inequalities that may arise, do not disturb public order and productivity.

Legal adjustment to social change was considered a right which no doubt, but when we are faced with doing the legal role of social control, is still in question about the legal ability to carry out such a role, because the law as a means of social control are faced with the question of how to create changes in society, thus able to follow the changes that are happening [8].

Changes to the law can be done through legal development, which could be interpreted as an attempt to renew itself so that the positive law in accordance with the need to serve the community on current levels of development and as an attempt to memfungsionalkan (empower) the law in the development, by way of share make social changes as required by a society that was built [9].

Development of law is a venture that does not stand alone, but are in a particular context, in this case is social change and modernization. Will it be seen as an attempt to make the reform of society or as a change of the legal system itself, are both limited by the social changes that occurred.

Another problem is related to the development of fundamental law is the concept of legal development, which includes institutions, rules, activities and people involved in legal work. In this case, to be able to create changes in accordance with the desired structure of society, the law must be seen as an effort besama ultimately fruitless.

The concept of legal development, when to be specified, have the elements:

1. Making their own rules.

2. Delivery of content regulation.

3. Readiness of the implementing authorities to carry out its role.

4. The readiness of citizens to act in accordance with their respective roles.

5. Observations about the workings of law in everyday society [10].

But remember, in the overall development process is always arise various vulnerability and conflict since the emergence of conflict of needs, interests and views of community life. This is where the law serves as a means to prevent conflict or if the conflict had already occurred, the law serves as a means to solve or resolve conflicts in a peaceful and orderly way.

The challenge facing the law after a change in the economic development of society is increasingly open world and the advancement of science and technology rapidly. This requires adjustments in the system and the national legal institutions responsive to the development of the world, the rapidly changing and dynamic and growing public aspirations.

Social burdens and new realities in society due to the change and development, placing a fundamental role of law as a means of renewal [11].

Indonesian Criminal Justice System

Criminal Justice System is a system in a community to tackle crime, with the aim of:

a. Preventing people are becoming victims of crime;

b. Solve crime cases so that the community is satisfied that justice has been served and the guilty punished;

c. Pursue those who have committed crimes not repeat his crime. [12]

In the criminal justice system and the implementation penyelenggaan criminal law enforcement agencies involved, each of which has its own function. The agencies that police, prosecutors, courts and correctional institutions. Within this framework sitematik one agency actions will affect other agencies.
In connection with this, Sudarto said: these agencies each set in the field of law and authority. Providing the view that the criminal law system is called the wheel model (stuur model). So for example if the police only gave angry at people who violate traffic regulations and not making a verbal process and forward the case to the prosecutor, it really is a decision of law. Similarly, the Attorney's decision to sue or not sue someone in advance court. These are all parts of the activities within the framework of law enforcement, or in a criminologist is called "crime control" as a principle in the response to this crime is that actions must be commensurate with the values of living in society. [13]

Next look too, that the criminal justice system involves the enforcement of criminal law, both substantive criminal law, criminal law and the formal implementation of criminal law, in a form that is prefentif, repressive or curative. Thus will appear linkages and interdependencies between sub-systems of criminal justice agencies ie police, prosecution, courts and correctional institutions. Even be added here and the Institute of Public Counsel. [14]

The criminal justice system is a network (network) that uses the judicial criminal law as a primary means, both material criminal law, criminal law and the formal implementation of the criminal law. However, the substantial institutions should be seen within the framework or the social context. The less formal nature when based solely for the purposes of legal certainty it would bring disaster in the form of injustice. Thus, for the sake of what is said to be precise justice, then the measures that are material, ostensibly based on the principles of general justice really should be considered in law enforcement.

Legal processes are fair (reasonable)

In the implementation of criminal justice, there is a legal term that can embrace the ideals of criminal justice, which is "due process of law 'in Indonesian which can be translated into a fair legal process or proper [15].

Mistakenly meaning of a fair legal process and is often only worth associated with implementation of the rules of criminal procedural law of a State to a suspect or defendant. Yet the meaning of due process of law is broader than just the application of laws or a formal invitation.

Understanding of a fair legal process and also contains the proper mental attitude of respect for the rights of citizens belonging even though he was a criminal. But as a man allows him to get his rights without discrimination. At least the rights to hear their views about events that occurred, accompanied by the right legal counsel at all stages of investigation, defense and promote the rights of the right to trial courts in advance of free and impartial judges [16].

Dianutnya logical consequence of a fair legal process and it is worthy of the criminal justice system than to implement the criminal procedural law in accordance with the principle of-principle, should also be supported by the mental attitude of law enforcement that respects the rights of citizens [17].

With the existence of Law No. 8 of 1981, Indonesia has the legal life of pursuing a new era, the rise of national law which prioritizes the protection of human rights in the criminal justice system mechanism.

Protection of these rights, it is expected from the beginning had to be given and enforced. Also expected are the law enforcement under the law gives the judicial power of free and responsible.

But it is only achieved if the orientation of law enforcement based on system approach, which uses all the elements involved as a unity and mutual interrelation and mutual influence each other [18].

Model Integrated Criminal Justice System
In the criminal justice system approach known three forms, namely: a normative approach, administrative and social. [19]

Normative approach to looking at the four law enforcement agencies (police, prosecution, courts and correctional institutions) as implementing agencies of legislation in force so that all four apparatus is an inseparable part of the system of law enforcement alone.

Administrative approach, looking at the four law enforcement agencies as a management organization that has a working mechanism, good relationships are horizontal or vertical line with the current organizational structure within the organization. The system used is the administration system.

Social approach, looking at the four law enforcement agencies is an integral part of a social system so that society as a whole take responsibility for success or failure of the four law enforcement agencies in performing their duties. The system used is the social system.

Furthermore, according to Romli Atmasasmita, characteristic approach in the criminal justice system, is: [20]

a. Emphasis on coordination and synchronization components of criminal justice (police, prosecutors, courts and correctional institutions).

b. Supervision and control the use of power by the criminal justice component.

c. Effectiveness of crime prevention system greater than the settlement efficiency.

d. The use of law as an instrument to establish "The administration of justice"

Components - components that work together in this system is known within the scope of law enforcement practices, consisting of police, prosecutors, courts and correctional institutions [21]. Four of these components are expected to work together to form an "integrated criminal justice system". [22]
Muladi confirmed the meaning of Integrated criminal justice system is the synchronization or simultaneity and harmony that can be distinguished in: [23]

1. Synchronization is the simultaneity and structural alignment in the framework of the relationship between law enforcement agencies.

2. Synchronization is substantial simultaneity and harmony that are vertical and horizontal in relation to positive law.

3. Synchronization is the simultaneity and cultural harmony in the views maghayati, sikar-attitude and philosophy that underlies the overall course of the criminal justice system.

Harmony and the linkages between the sub-system with the other one is a chain in a single unit. Every problem in one sub-system, will have an impact on the subsystem, other subsystems. Similarly, reactions that arise as a result of errors in one sub-system will impact the system back to the other sub. Integration between subsistim that can be obtained when each subsistim making criminal policy as a guideline work. Therefore, the components of the criminal justice system, should not work without a policy directed by the criminal.

Components of the criminal justice system as a supporter or an instrument of a criminal policy, including legislators. Olehkarena role of legislators is crucial in the politics of crime (criminal policy) that determines the direction of criminal law policy and the implementation of criminal law to be taken and once the goal of law enforcement. [24] In such coverage, then the criminal justice system (criminal policy system) should be seen as "The Network of court and Tribunals whichedeal with criminal law and it's enforcement".

Understanding the sense in this system must be viewed in the context both as a physical system in terms of a set of elements that are integrated to work to achieve a goal, as well as the Abstract system in the sense that ideas are a regular arrangement of one another in dependence. [ 25]

Mardjono Reksodiputro [26] with a picture of the workings of the criminal justice system so it is close collaboration in a single system by the agency involved is a necessity. Clearly in this case is not easy, but the losses that occur when it is not done very much. Disadvantages include:

a) the difficulty in assessing their own keberhasiolan or failure of each institution, in connection with their duties;

b) to solve their own difficulties substantive issues of each agency (as a sub-system); and

c) because the respective responsibilities of agencies is less clear is divided, then each agency paid little attention to overall effectiveness of the criminal justice system [27].

Minister of Justice himself has warned "by using the actual system we have agreed to a systemic approach in managing our criminal justice administration. This means that there is need for integration in steps and the motion of each sub-system towards the achievement of common goals. "

Modernization of Judicial System

With the increasing modernization process that gives rise to a new phenomenon of globalization, demanding changes in the structure of law relationships (legal stucture), new substances legal arrangements (legal substance) and culture of the law (legal culture), then will arise the dangers of peace alive (peaceful life) in a variety of social life, will become uncertain, disorderly, and not protected. Why is the actual law enforcement (actual enforcement) will be far from the ideal law enforcement (total enforcement and full anforcement).

Law enforcement itself must be defined in terms of three concepts, namely the concept of law enforcement is the total (total enforcement concept) which requires that all values are behind these legal norms enforced without exception, which is full (full enforcement concept) is aware that the concept of total should be limited to procedural law, and so forth for the protection of individual interests and the concept of actual law enforcement (enforcement actual concept) which arise after the believed existence of discretion in law enforcement because of the limitations, whether related to infrastructure, quality human resources, regulatory quality -invitation and the lack of community participation. [28]

In the era of modernization and globalization of the legal system is challenged to act as an integrating mechanism (integrative mechanism) that can unify the various dimensions of interest: (a) Inter nation's internal interests, (b) Inter-national interests with international interests, (c) Inter-sector of national life . [29]

National law in the era of globalization in addition to containing "Local Characteristics" like the ideology of the nation, the human conditions, nature and traditions of the nation, also must contain the international trends gives the color in the national law of life both in the establishment of legal, law enforcement and awareness law. [30]

Whether we realize it or not, modernization and globalization can indeed create its own problems in law enforcement. Yet the main problem in law enforcement lies in the factors that influence positive or negative impact lies in the content of these factors. These factors, according Soerjono Soekanto, is as follows:

1. Factor of its own law, ie law.

2. Law enforcement factors, namely the parties that form and applying the law.

3. Factor means or facilities to support law enforcement.

4. Community factors, namely the environment in which the law applies.

5. Cultural factors, namely as a result of creative works and the sense that is based on human initiative in the intercourse of life. [31]

Among the factors mentioned above, the law enforcement factor occupies a central point. This is because disebsbkan by laws drawn up drawn up by law enforcement, its application by law enforcement, and law enforcement groups are considered as a model law by the public. [32]

Good law enforcement is when the criminal justice system works in an objective and impartial and are not concerned and careful consideration of the values that live and thrive in society. These values appear in the form of public reaction to any criminal policy has been implemented by law enforcement agencies.

In the context of law enforcement with access to the system approach, there is mutual influence between the development of significant multidimensional crime and criminal policy that has been implemented by law enforcement agencies. [33]

One way to implement the modernization of the criminal justice system is to build a model. According to Herbert Packer's opinion, the normative approach divided into two models, namely: crime control model and the model due prosess. [34]

Meanwhile, according Muladi, the criminal justice system model suitable for Indonesia, which refers to: "daad-dader Strafrecht" called: a model of balance of interests. This model is a realistic model that considers a variety of interests to be protected by criminal law that the state interests, public interests, individual interests, the interests of crimes and the interests of crime victims. [35]

Perceptions of crime control advocates due prosess models and models of the criminal justice process is that no other process is a "decision making". Crime control is a decision-making model that prioritizes "excessive leniency" due prosess whereas decision-making model is a priority to accuracy and equality. [36] In essence, these two models perbedan revolve around how to control decision-making in order to achieve the desired objectives.

Closing

In general, only law enforcement can ensure legal certainty, order and protection of the law in the era of modernization and globalization can be done, if the various dimensions of the law of life always keep the harmony, balance and harmony between civil morality based on actual values in a civilized society . [37]

As a process, activities include various parties including the community in terms of achieving goals, is a must to see the enforcement of criminal law as a criminal justice system.

Criminal law enforcement as a process should be viewed realistically, so the actual law enforcement (actual enforcement) should be seen sebsgsi of discretion that can not be avoided because of the limitations, even in an integrated monitoring will provide positive feedback. [38]


REFERENCES

Atmasasmita, Romli. 1996.Sistem Criminal Justice. Binacipta. Bandung. 1996.

Coffey, Alan. 1974. An Introduction to the Criminal Justice System and Process, Prentice-Hall, Inc. Englewood Cliffs. New Jersey.

Muladi. 1997. Human Rights, Politics and Criminal Justice System. Publisher UNDIP Agency. Semarang.

--------. 1995. Selekta capita Criminal Justice System. Publisher UNDIP Agency. Semarang.

Reksodiputro, Mardjono. 1994. Indonesian Criminal Justice System (See Crime and Law Enforcement within the limits of tolerance) Center for Justice and Legal Services. Jakarta.

-------------------. 1997. Flowers Rampai Problems In Criminal Justice System. Service Center for Justice and Legal Services. Jakarta.

-------------------. 1994. Developing Integrated Approach in Criminal Justice System, Center for Justice and Legal Services. Jakarta.

------------------. 1994. Indonesian Criminal Justice System. in Human Rights and Justice Center and SPP Legal Services. Jakarta.

Rahardjo, Satjipto. 1996. Law in Historical Perspective and Social Change in Construction Law in Political Perspective of National Law. Eagle. Jakarta.

-----------------. 1980. Law and Society. Bandung characters.

-----------------. 1983. Law and Social Change, Alumni, Bandung.

Shikita, Minoru. 1982. Integrated Approach to Effective Adminstration of Criminal and Juvenile Justice. in Criminal Justice in Asia. The Quest for an Integrated Approach. Unafei.

Soemitro, Ronny Hanityo.1984. N Problems in the Law Society. Alumni Bandung.

---------------------, 1998. Politics, Power and the Law, National University Publisher. Diponegoro Semarang,

Soekanto, Soerjono. 1993. Factors that Affect Law Enforcement. King Grafindo Persada. Jakarta.

Sudarto. 1986. Selekta capita Criminal Law. Alumni.Bandung.

Hartono, Sunaryati. 1993. Politics Law and Legal Development in PJPT II. Magazine Pro Justitia No. 4/XI.

[1] Ronny Hanityo Soemitro, Politics, Power and the Law, Badan Penerbit Univ. Diponegoro Semarang, 1998, hal.105.

[2] Satjipto Rahardjo, Law in Historical Perspective and Social Change in Construction Law in Perspective Politics Law NAional, Rajawali. Jakarta. 1996. hal27

[3] Satjipto Rahardjo, Law and Society, script Bandung, 1980 p. 99

[4] Quoted by Ronny Hanityo Soemitro in Legal Problems in the Community, Alumni Bandung, 1984, pp 112-113

[5] Satjipto Rahardjo, Ibid.

[6] Satjipto Rahardjo, Law and Social Change, Alumni, Bandung, 1983 pp 56-59

[7] This idea comes from Dror (Yehezkel Dror, 1971: Law and Social Changes), as quoted by Satjipto Rahardjo, ibid.

[8] Parson consider this an attempt to create a state of well-integrated back, as quoted by Satjipto Rahardjo, in Law and Social Change, 1984:62-65.

[9] Ibid. hal.232-233.

[10] Ibid.

[11] Sunaryati Hartono, Political, Legal and Law Development in PJPT II, Magazine Pro Justitia No. 4/XI/1993

[12] Mardjono Reksodiputro, Indonesian Criminal Justice System, in human rights and fees, Center for Justice and Legal Services, Jakarta, 1994, pp. 84.

[13] Sudarto, Selekta Capita Criminal Law, Alumni, Bandung in 1981, pp. 121.

[14] Muladi, Selekta Capita Criminal Justice System, Board of Semarang UNDIP Publisher, Year 1995, pp. 16.

[15] Mardjono Reksodiputro, Indonesian Criminal Justice System, (See Crime and Law Enforcement within the limits of tolerance) Center for Justice and Legal Services, Jakarta, 1994, p. 8

[16] Ibid, p. 9

[17] Ibid, p. 6.

[18] Romli, loc-cit, p. 39.

[19] Ibid, pp. 17-18.

[20] Romli Atmasasmita, op cit, pp. 9.

[21] If the criminal justice system is seen as one of the criminal policy instruments, the elements contained therein, including all legislators (Romli Atmasasmita, 1996: Criminal Justice System, Binacipta, Bandung, p.24). See also Alan Coffey in An Introduction to the Criminal Justice System and Process: the criminal justice process consists of several segments: Police, Courts, Procution-defense, Correction and the law. (1974:4).

[22] Mardjono Reksodiputro, Ibid. According to Muladi, (1995: Capita Selekta Criminal Justice System, National Publishing UNDIP, Semarang, p. vii-ix) ketepaduan criminal justice system is a system that seeks to balance protection of the interests of both the interests of the state, communities and individuals, including the interests of the perpetrators and victims crime; must contain systemic movement of the support subsystem as a whole is unity (totality) to transform inputs into outputs in accordance with the purpose of the criminal justice system namely resosialisasi (short term), the prevention of crime (medium term) and social welfare (long term) .

[23] Romli Atmasasmita, Criminal Justice System, Bina Cipta Bandung, Year 1996, pp. 17.

[24] Muladi, op cit, pp. 25.

[25] Ibid, pp. 15.

[26] In Developing Integrated Approach in Criminal Justice System,) Center for Justice and Legal Services, Jakarta, 1994, p. 141

[27] Minoru Shikita, Integrated Approach to Effective Adminstration of Criminal and Juvenile Justice, in Criminal Justice in Asia, The Quest for an Integrated Approach, Unafei, 1982. p. 34

[28] Muladi, Human Rights, Politics and Criminal Justice System, National Publisher UNDIP, Semarang, 1997, pp. 58.

[29] Ibid, pp. 60.

[30] Ibid, pp. 63.

[31] Soerjono Soekanto, PT. King Grafindo Persada, Jakarta, pp. 5.

[32] Ibid, pp. 53.

[33] Romli Atmasasmita, op cit pp. 39-40.

[34] Ibid, pp. 18.

[35] Ibid, pp. 22.

[36] Ibid, pp. 21.

[37] Muladi, Op-cit p. 18.

[38] Muladi, Ibid









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