Criminal Law

by Dharma Na Gara

Forced defense and forced defense beyond the limit

Forced defense

Forced defense or noodweer in the Indonesia’s Criminal Code (KUHP) is regulated in Article 49 paragraph (1) which states, “Whoever is forced to take action for defense, because there is an attack or threat of an immediate attack which is against the law, against himself or others, against honor, decency or the property of themselves or others, are not punished. Even though in Memorie van Toelichting the term “forced defense” is not found, the provisions of Article 49 paragraph (1) implicitly provide conditions for forced defense.

In the beginning, forced defense was unrecognized because it was based on the postulate in ancient times which stated, vim vi repellere licet. Which means, violence should not be returned with violence[1]. In its development that statement has been abandoned in order to enforce public order. Likewise, the moral principle in the criminal process (non scripta sed nata lex)[2], it is not appropriate for the person who does the forced defense to be punished. The essence of a forced defense is that the perpetrator takes action to avoid a greater crime or avoid a threatening danger[3]. Forced defense is a justification that eliminates the element against the law of the act. Necessitas excusat aut extenuate delictum in capitalibus, quod non operator idem in civilibus. This means that the forced defense freed someone from punishment but unlikely in civil case.

Based on the provisions of Article 49 paragraph (1) of the Indonesian Criminal Code, there are several requirements for forced defense. First, there is an instant attack. Second, the attack is against the law. Third, defense is a must. Fourth, the way of defense is appropriate[4]. The fourth requirement is not mentioned in the article. Regarding the first and second requirements, ongeblikkelijke wederrechtelijke aanranding or unlawful instant attacks, there are at least three questions that must be sorted out. What is meant by an attack? What is meant by instantaneous? And what does it mean by against the law?

The definition of attack in the article is a real attack that continues, whether against body, dignity or decency and property[5]. Meanwhile, the understanding of instantaneous, namely between the time of seeing an attack and the time of doing a defense there must not be a long interval of time. Strictly speaking, as soon as an attack occurs, there is an immediate defense[6]. Meanwhile, the definition of against the law is an attack that is contrary to or violates the law[7].

Pay attention to the following illustration: A hits B with all his might and in just one hit to B in the face so that B falls, A then turns and leaves B. When A turns, B then stands up and hits A. B’s actions are not included in forced defense. The argument: First, A has stopped the attack. Which means, the attack did not continue. Second, there is no immediate defense from B when A hits him.

Another example: X is waiting for Y who is in the class room. X’s intention was to molest Y while out of the class room. Y was told by Z, that if he left the class room, X intended to molest him. When Y left the classroom, Y immediately hit X. Y’s action is not categorized as forced defense because X waiting outside for Y to be molested was not a real attack.

Compare it with the following example: C is angry with D. While walking on a deserted street, C then points at D with a gun. Instantly D kicks C’s hand which was holding the gun until it fell. D’s action is classified as forced defense because C pointed a gun at D, which was a threat of attack.

Regarding the attack Vos provides the following statements and illustrations:

“…. De aanranding kan nog voortduren en verdediging nog toelaatbaar zijn, ook als is het delict, waarin de aanranding bestaat, reeds voltooid. Men kan zeggen, dat de aanranding voortduurt, zolang de aanrander nog binnen het bereik van de aangevallene is, mits natuurlijk verdere benadeling dreight en er du snog iets te verdedigen valt. Voorbeeld: iemand ziet een dief met het gestolen goed weglopen, maar ziet kans hem het voorwerp met geweld te ontrukken, voordat hij buiten zijn bereik is gekomen; er is dan een voltooid delict van diefstal maar verdediging is nog teogelaten”[8].

(The attack is not limited to the completion of the act that constitutes the attack. The attack is a criminal act so the attack is not limited to the completion of the criminal act. The attack continues as long as there is a possibility that the attacker can continue to do harm to the attacked person. As long as this possibility exists, then there is still requirement to do self-defense. For instance: someone steals things in the house. As long as the thief is still in the house, then there is still a chance for those who own the goods to grab back the goods. As long as the thief is still in the house, then there is still an attack).

The following are the third requirements of the forced defense, namely that the defense is mandatory. This means that there is no other way to avoid the attack. For instance, in a closed room, S who intends to kill T, suddenly enters and locks the door then S with a drawn knife approach to T to stab him. T then do a defense on S’s actions by using the martial arts he mastered. T’s action is included in the forced defense because there is an immediate attack which against the law and the defense is a must. Compare if S intends to kill T, then with a drawn knife S approaches T but both are in the open field. Here, T can still avoid S by running away.

Furthermore, related to the fourth requirement that the method of defense is appropriate. The fourth requirement, as well as the third requirement above, is very closely related to the principles in the abolition of sentence in general, including forced defense. First, the principle of subsidiary. Means, there is no better possibility or other way so that the defense must be carried out. Strictly speaking, defense is not a must as long as you can avoid it[9].

Second, the principle of proportionality. This means that there must be a balance between the interests that are protected and the interests that are violated[10]. In the context of forced defense, criminal act committed for self-defense must be balanced with the attack that faced. Mr. Moeljatno gave an example of the Hoge Raad Decision in 1934. There is a case: an owner of a fish trap uses a rope to connect the trap to the trigger of the gun, if a thief tries to take the fish in the fish trap, the rope will move and shoot. When a thief touches the trap, the rope automatically moves and shoots the thief in the eye, causing blindness. Hoge Raad rejected the forced defense of the owner of the traps on the basis of Article 49 paragraph (1) of the Criminal Code due to it did not meet the principle of proportionality[11].

Third, the principle of culpa in causa. Means, a person who because of his own actions was attacked by another person against the law, cannot defend himself due to forced defense[12]. For instance, A verbally insulted B, because of the insult, B approached A and was about to slap him. When B was about to slap A, A immediately hit B, causing him to fall. A’s action cannot be said to be a forced defense because of A’s own actions which resulted in B slapping him.

Furthermore, it is related to what interests may be attacked so that the forced defense is allowed. Article a quo explicitly states that the attack/aggression is either against oneself or another person, against honor and property. Aggression against oneself means an attack on life and or physical. While the aggression on honor means honor in relation to decency. While aggression on property include civil rights[13]. However, Fletcher limits the forced defense to only one’s life or limb[14].

The author (Prof. Eddy O.S. Hiariej) disagree with Fletcher on the basis of the following arguments: First, Article 49 paragraph (1) explicitly stipulates the object of the attack for which a forced defense can be carried out. Not only just for life and body, but also honor and property. Second, it refers to the function of protecting from criminal law, that the interests of individuals who are protected are life, honor in the sense of decency and property.

The forced defense beyond the limit

If the forced defense is classified as justification, then the forced defense that beyond the limit is a forgiving reason. It means, the element that can be blamed for the perpetrator is removed. A forced defense that beyond the limit or noodweerexces is contained in Article 49 paragraph (2) of the Indonesian Criminal Code (KUHP) which said “A forced defense that beyond the limit, which is directly caused by great mental shock due to the attack or threat of attack, is not punished”.

Forced defense that beyond the limit can take two forms. First, the person facing an attack have experienced such a great mental shock that then turns self-defense into an attack[15]. The author’s (Prof. Eddy O.S. Hiariej) illustration is as follows: a woman in a closed room is about to be raped by a man. The man has managed to catch the woman’s body, but with all her power the woman kicked the man’s genital until he fell. It didn’t stop there, the woman hit him with objects around her until the man was helpless. In such a context theoretically, the woman made two defenses. The first defense is noodweer by kicking the man’s genital, while the second defense is noodweerexces, when the woman beat objects around her to the man until he was helpless.

Secondly, the person who did the forced defense experienced a very severe mental shock by immediately using excessive self-defense efforts or at least using drastic efforts to defend him/herself[16]. The illustration: a policeman when he got home saw his wife being raped by two robbers. Immediately, the police took the gun he was carrying and immediately shot at the perpetrator, causing him to die. In this situation what arises is actually a noodweer, but the policeman makes an unbalanced defense. This means that the principle of proportionality in the forced defense had been violated so that the actions of the police who shot the perpetrator became a forced defense that went beyond the limit.

There are two conditions to be able to declare someone to have a forced defense that exceeds/beyond the limit. First, there must be a situation that caused a forced defense as discussed above (Article 49 paragraph (1) of the Indonesian Criminal Code/KUHP). Second, there must be a great mental shock as a result of the attack causing a forced defense that goes beyond the limits. According to Hazewinkel Suringa, severe mental shock is not only the asthenische affecten in the form of anxiety, fear, or helplessness, but also the sthenische affecten such as anger, rage or offended.

According to Mr. Sudarto, there are three conditions in the forced defense that go beyond the limits. First, the excess of the required limit. Second, the defense was carried out as a direct result of severe mental/soul shock. Third, the great mental/soul shock was caused by an attack. This means that there is a causal relationship between mental shock and the attack. The reason for not sentencing to a person who makes a forced defense that exceeds the limit is not because there is no fault, but the legislators consider that it’s fair if the perpetrators who face such attacks should not be punished. This is based on the adage non tam ira, quam causa irae excusat, meaning that the act of a provocative attack is condoned.

For more information, please consult your problem with us.

Source:

Prof. Dr. Eddy O.S. Hiariej, S.H.,M.Hum., 2014, Prinsip-prinsip Hukum Pidana, Cahaya Atma Pustaka, Yogyakarta.

[1] Hazewinkel Suringa, Inside Eddy O.S. Hiariej, 2014.

[2] G.A. van Hamel, Inside Eddy O.S. Hiariej, 2014.

[3] Routhledge, Inside Eddy O.S. Hiariej, 2014.

[4] D. Schaffmeister, N. Keijzer, E. PH. Sutorius, Diterjemahkan oleh J.E. Sahetapy, Inside Eddy O.S. Hiariej, 2014.

[5] Jan Remmelink, Inside Eddy O.S. Hiariej, 2014.

[6] Moeljatno, Inside Eddy O.S. Hiariej, 2014.

[7] Hazewinkel Suringa, Inside Eddy O.S. Hiariej, 2014.

[8] H.B. Vos, Inside Eddy O.S. Hiariej, 2014.

[9] J.E. Jonkers, Inside Eddy O.S. Hiariej, 2014.

[10] D. Schaffmeister, N. Keijzer, E. PH. Sutorius, Inside Eddy O.S. Hiariej, 2014.

[11] Moeljatno, Inside Eddy O.S. Hiariej, 2014.

[12] D. Schaffmeister, N. Keijzer, E. PH. Sutorius, Inside Eddy O.S. Hiariej, 2014.

[13] D. Simons, Inside Eddy O.S. Hiariej, 2014.

[14] George P. Fletcher, Inside Eddy O.S. Hiariej, 2014.

[15] Jan Remmelink, Inside Eddy O.S. Hiariej, 2014.

[16] Loc. Cit.

by Dharma Na Gara

Victimology

Victimology

Victimology comes from the Latin victima which means victim and logos means knowledge. Terminologically, victimology means a study that studies victims, the causes of victims and the consequences of victims, which are human problems as a social reality. Victims in the scope of victimization have a broad meaning because they are not only limited to individuals who actually suffer losses, but also groups, corporations, private sector and government, while what is meant by the consequences of victimization are the attitudes or actions of the victim and/or the perpetrators and those who directly or indirectly involved in the occurrence of a crime.

Victimology is a scientific knowledge/study that studies victimization (criminal) as a human problem which is a social reality. This formulation results in the need for an understanding, namely:

1. As a human problem according to the actual proportion dimensionally;
2. As a result of interaction due to an interrelation between existing phenomena and mutual influence;
3. As the action of a person (individual) who is influenced by certain elements of the social structure of a particular society.

Victimology provides a better understanding of victims of crime as a result of human actions that cause mental, physical and social suffering. The aim is not to flatter the victims, but only to provide an explanation of the victims real role and their correlation with the victims. This explanation is important in order to undertake activities to prevent various victimization crimes, maintain social justice and improve the welfare of those who are directly or indirectly involved in a victimization. Especially in the field of information and guidance not to become victims of structural or non-structural crimes.

Scope of Victimology

Victimology examines topics about victims, such as the role of the victim in the occurrence of a crime, the relationship between the perpetrator and the victim, the vulnerability of the victim’s position and the role of the victim in the criminal justice system. According to J.E. Sahetapy, the scope of victimology includes how someone (can) become a victim who is determined by a victimity that is not always related to the problem of crime, including victims of accidents and natural disasters apart from victims of crime and abuse of power.

However, in its development in 1985, Separovic pioneered the idea that victimology specifically examines victims due to crime and abuse of power and does not examine victims due to natural disasters or disasters because victims of natural disasters are out of human’s will.

According to Arif Gosita, the object of study or scope of attention for victimology is as follows:

1. Various kinds of criminal victimization or criminality
2. Theories of the etiology of criminal victimization
3. Participants who are involved in the occurrence or existence of a criminal victimization or crime. Such as victims, perpetrators, observers, lawmakers, police, prosecutors, judges, lawyers and so on.
4. Reaction to criminal victimization.
5. Response to a criminal victimization: argumentation of activities to resolve a victimization or victimology, prevention efforts, repression, follow-up (compensation) and the making of related legal regulations.
6. Victimogen/criminogen factors.

According to Muladi, the aims of victimology are:

1. Analyze various aspects related to the victim;
2. Trying to provide an explanation of the causes of victimization; and
3. Develop a system of action to reduce human suffering.

Definition of Victim

Regarding the definition of the victim itself, as stated in Article 1 point 2 of Law Number 13 year 2006 concerning the Protection of Witnesses and Victims, states that a victim is someone who has suffered physical, mental, and/or economic loss caused by a criminal act.

According to Mandelsohn, based on the degree of guilt, victims are divided into five types, namely:

1. who is completely innocent;
2. who became victims due to negligence;
3. who is as wrong as the perpetrator;
4. who is more guilty than the perpetrator;
5. The victim is the only one at fault.

Viewed from the perspective of the level of involvement of victims in the occurrence of crimes, Ezzat Abde Fattah mentions several typologies of victims, namely:

1. non-participating victims are those who deny/reject crime and criminals but do not participate in crime prevention.
2. Latent or predisposed victims are those who have certain characteristics tend to become victims of certain violations.
3. Provocative victims are those who cause crime or trigger crime.
4. Participating victims are those who are not aware of or have other behaviors that make it easier for them to become victims.
5. False victims are those who become victims because of themselves.

Victim’s rights as a party who suffering and loss, and of course the victim has rights that can be obtained as a victim. These rights are contained in Article 5 of Law Number 31 year 2014 concerning the amendments of Law Number 13 year 2006 concerning the Protection of Witnesses and Victims, which states that victims have the right to:

Paragraph (1)

1. To obtain protection for the safety of his personal, family, and property, and be free from threats related to the testimony that he/she will, is currently, or has given.
2. Participate in the process of selecting and determining the form of security protection and support.
3. To provide information without pressure.
4. To get a translator.
5. Free from entangled questions.
6. To get information about the progress of the case.
7. To get information about court decisions
8. To obtain information in the event that the convict is released.
9. The identity is being kept in secret.
10. To get a new identity.
11. To get a temporary residence.
12. To get a new residence.
13. To obtain reimbursement of transportation costs as needed.
14. To get legal advice.
15. To obtain temporary living expenses assistance until the protection period ends, and/or
16. To get accompaniment.

Paragraph (2) The rights as referred to in paragraph (1) are granted to witnesses and/or victims of criminal acts in certain cases in accordance with the decision of the LPSK (Witnesses and Victims Protection Institution).

Paragraph (3) in addition to witnesses and/or victims, the rights granted in certain cases as referred to in paragraph (2) may be granted to witnesses of perpetrators, reporters, and experts, including people who can provide information related to a criminal case. although he/she has not heard it himself/herself, he/she has not seen it himself/herself, and he/she has not experienced it himself/herself, as long as the person’s information relates to the criminal act.

Source:

• Rena Yulia, 2010, Viktimologi Perlindungan Hukum Terhadap Korban Kejahatan, Graha Ilmu, Yogyakarta.
• Republic Indonesia Law Number 13 year 2006 concerning the Protection of Witnesses and Victims juncto Republic Indonesia Law Number 31 year 2014 concerning the amendments of Law Number 13 year 2006 concerning the Protection of Witnesses and Victims.

by Dharma Na Gara

The General/Ordinary Flows of the Criminal Law Procedure in Indonesia:

The general/ordinary flows of the criminal law procedure in Indonesia:

1. Report/complaint is made by the community/victim(s) to the Police Office covering the area where the crime occurred based on at least 2 evidences;
2. The police will conduct investigations and interrogations by summoning the parties to be examined, witness (es), expert(s), examining goods and/or evidence and if the elements of criminal act are fulfilled based on sufficient evidences then a suspect(s) will be determined. Regarding the suspect(s) detainment on the interrogation stage is based on the Police’s discretion and also punishment threats in the alleged article(s);
3. After the file is declared complete or P21 by the Public Prosecutor, the file and the suspect will be transferred by the Police to the Prosecutor’s Office for an indictment;
4. The prosecutor then transferred the documents to the district court;
5. The case is then heard by the competent District Court and at the trial there are various agendas, namely:

• Pretrial/Praperadilan (if submitted);
• The identity checking of the defendant(s);
• The reading of the indictment (by the Public Prosecutor);
• Exception/objection/rebuttal from the defendant/Legal Counsel/Lawyer (reply to each other between the Legal Counsel/Lawyer and the Public Prosecutor);
• Interlocutory Verdict/Decision by the Judges (Interlocutory verdict usually decides regarding the relative or absolute competence of the court, exception/objection from the defendant/legal counsel, etc.);
• Authentication (examination of witness(es), goods/evidence(s), expert(s), defendant(s) and others);
• Charge(s) from the Public Prosecutor and pleas or defenses by the defendant/Legal Counsel/Lawyer (reply to each other between the Prosecutor and the defendant/Legal Counsel/Lawyer);
• Decision/Verdict by the Judges;

6. If the parties, either the defendant and/or the public prosecutor, do not accept the decision/verdict of the District Court level, then the appeal can be lodge to the High Court within 7 (seven) days from the date the decision was rendered or after the decision is notified to the absent of the defendant through the District Court’s Clerk which has decided the case, as referred in Article 233 paragraph (2) KUHAP so that the case is examined by the High Court. If the parties do not accept the decision of the High Court, the parties can file an appeal (we call it “kasasi”) to the The Supreme Court within a period of 14 (fourteen) days through the District Court’s Clerk which has decided the case from the date the verdict is notified to the defendant as referred in Article 245 paragraph (1) KUHAP. The convict can also take extraordinary legal effort, namely the Judicial Review (Peninjauan Kembali/PK) to the Supreme Court through the District Court’s Clerk which has decided the case if the Decision has been legally binding.

Notes:

Decisions of the court of first level/district court which cannot be appealed include:

• acquittal or vrijspraak;
• The decision of released from any charges or Onslag van Recht Vervolging;
• Quick court procedure verdict/decision.

As for the three cases above, an appeal (we call it “kasasi”) to the supreme court should immediately filed.

Thus, the general/ordinary flows of criminal law proceeding throughout Indonesia, in fact there are still many details that I could explain, but in order to shorten the time and make it easy for the public to understand, I summarize it in outline and the rest you can read in the source below or you can consult with us.

Source:

1. KUHAP/Kitab Undang-undang Hukum Acara Pidana.
2. Yahya Harahap, S.H., 2009, Pembahasan Permasalahan dan Penerapan KUHAP Penyidikan dan Penuntutan, Sinar Grafika, Jakarta.
3. Yahya Harahap, S.H., 2009, Pembahasan Permasalahan dan Penerapan KUHAP Pemeriksaan Sidang Pengadilan, Banding, Kasasi dan Peninjauan Kembali, Sinar Grafika, Jakarta.
4. https://pn-karanganyar.go.id/main/index.php/tentang-pengadilan/kepaniteraan/kepaniteraan-pidana/808-tata-urutan-persidangan-perkara-pidana
5. https://pn-bandaaceh.go.id/alur-perkara-pidana/
6. https://www.pn-bekasikota.go.id/images/AlurPidana/Prosedur-Persidangan-Pidana.jpg

by Dharma Na Gara

CCTV as Evidence.

Closed-Circuit Television or CCTV which means using a signal that is closed, unlike ordinary television which is a broadcast signal relying on analog signals.[1] Analog signals are used to transmit video from one or more cameras to a receiving device (receiver). Analog cameras record images, then send them via a coaxial cable to a Digital Video Recorder (DVR). The DVR then converts the video from an analog signal to a digital signal, compresses the data, and stores it on the hard drive. The monitor, which is used to display the recorded results, must be connected to the DVR. The DVR can also be connected to a router and modem to display video over the internet in an internal network.[2]

CCTV is a video-based surveillance system (Video Surveillance) using a camera. This video-based surveillance system is used to increase all activity of the object being observed besides that it can also be a tool that can provide information directly on what is happening at that time.[3]

The aim is to have a positive psychological effect on those around the camera. So that the person feels monitored and would not act criminally even though there is no one around.[4]

Many of our clients underestimated CCTV as evidence on the case which they experienced, they thought that CCTV just wasting their money and time, but the truth is CCTV is very helpful in revealing facts and truth regarding a legal event. CCTV is a shortcut of arguing, because CCTV reveals fact and truth regarding an event which experienced by someone or some people at a certain time and place. Therefore, it’s very important to have CCTV in your private residence or office, it’s very helpful for us as law enforcer to reveal fact of an event that occur, moreover CCTV which has high quality of audio and video. CCTV also is one of the prevention devices to avoid a criminal act happens to you.

Source:

[1] https://id.wikipedia.org/wiki/Televisi_sirkuit_tertutup

[2] https://tekno.kompas.com/read/2020/07/05/10170047/sama-sama-kamera-pengawas-apa-bedanya-ip-camera-dan-cctv-?page=all

[3] https://medium.com/@cecepahmadfauzi93/apa-itu-cctv-dd5e9bcb2adf

[4] Ibid.

by Dharma Na Gara

Summary of Republic Indonesia Constitution and Human Rights Law in Indonesia.

Summary of articles of Republic Indonesia Constitution and Human Rights Law in Indonesia.

Republic Indonesia Constitution Year 1945 or Undang-undang Dasar Negara Republik Indonesia Tahun 1945

Article 1

• The country of Indonesia is a Unitary Country in the form of a Republic;
• Sovereignty rests in the hands of the people and is exercised according to the constitution;
• The Country of Indonesia is a country of law.

Article 4

• The President of the Republic of Indonesia holds governmental powers according to the Constitution.
• In performing his/her duties the President is assisted by one Vice President.

Article 24

• Judicial power is an independent power to administer justice in order to uphold law and justice.
• Judicial power is exercised by a Supreme Court and judicial bodies under it in the general court, religious courts, military courts, state administrative courts and by a Constitutional Court.
• Other bodies whose functions are related to judicial powers are regulated in a law.

Article 26

• Those who become citizens are the native Indonesian people and from other nations who have been legalized by law as citizens.
• Residents are Indonesian citizens and foreigners who reside in Indonesia.
• Matters concerning citizens and residents shall be regulated by law.

Article 27

• All citizens shall have an equal position before the law and government and are obliged to uphold the law and government without exception.
• Every citizen has the right to work and a living that is decent for humanity. Every citizen has the right and obligation to participate in efforts to defend the state.

Article 28

Freedom of association and assembly, expressing thoughts orally and in writing and so on is stipulated by law.

Chapter XA **)

Human rights

Article 28 A

Everyone has the rights to live and has the rights to defend his/her live and life.

Article 28B

• Everyone has the rights to form a family and continue their offspring through a legal marriage.
• Every child has the rights to live, grow and develop and has the protection rights from violence and discrimination.

Article 28C

• Everyone who has the rights to develop him/herself through the fulfillment of the necessities of life, has the right to receive education and to benefit from science and technology, art and culture, in order to improve the quality of his/her life and for the welfare of mankind.
• Everyone has the rights to promote him/herself in the collective struggle for his rights to develop his community, nation and the country.

Article 28 D

• Everyone has the rights to recognition of guarantees, protection and legal certainty that is just and equal treatment before the law.
• Everyone has the rights to work and to receive fair and proper compensation and treatment in an employment relationship.
• Every citizen has the rights to equal opportunities in government.
• Everyone has the rights to citizenship status.

Article 28E

• Everyone is free to embrace religion and worship according to his religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to live in the territory of the country and leave it, and to have the right to return.
• Everyone has the rights to freedom of belief, to express thoughts and attitudes, according to their conscience.
• Everyone has the rights to freedom of association, assembly and expression.

Article 28F

Everyone has the right to communicate and obtain information to develop their personal and social environment, and the rights to seek, obtain, possess, store, process and convey information using all available channels.

Article 28G

• Everyone has the rights of protection of his / her personal, family, honor, dignity and property under his/her control, as well as to the feeling of security and protection from the threat of fear to do or not do something which constitutes human rights.
• Everyone has the rights to be free from torture and treatment that degrading human dignity and has the right to obtain political asylum from other country.

Article 28H

• Everyone has the rights to live in physical and spiritual prosperity, to have a place to live and to have a good and healthy living environment and the rights to obtain health services.
• Everyone shall receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice.
• Everyone has the rights to social security which enables him/her to complete development as a dignified human.
• Everyone has the rights to own private property and these rights cannot be taken over arbitrarily by anyone.

Article 28I

• The rights to life, the rights not to be tortured, the rights to freedom of thought and conscience, the rights to have a religion, the rights not to be enslaved, the rights to be recognized as a person before the law and the rights not to be prosecuted on the basis of retroactive law are human rights which cannot be reduced under any circumstances.
• Everyone has the right to be free from discriminatory treatment on any basis and is entitled to protection against such discriminatory treatment.
• The cultural identity and rights of traditional communities are respected in accordance with the times and civilizations.
• The protection, promotion, enforcement and fulfillment of human rights are the responsibility of the country, especially the government.
• To uphold and protect human rights in accordance with the principles of a democratic rule of law, the implementation of human rights is guaranteed, regulated and set forth in statutory regulations.

Article 28J

• Everyone is obliged to respect the human rights of others in an orderly life in society, as a nation and as a country.
• In exercising his/her rights and freedoms, every person is obliged to comply with the restrictions established by law with the sole purpose of guaranteeing recognition and respect for the rights of freedom of others and of fulfilling fair demands in accordance with considerations of moral and religious values, security and public order in a democratic society.

CHAPTER XIII

EDUCATION AND CULTURE

Article 31

• Every citizen has the rights for education.
• Every citizen is obliged to attend basic education and the government is obliged to finance it.
• The government shall endeavor and implement a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation as regulated by law.
• The Country prioritizes the Education budget of at least twenty percent of the state revenue and expenditure budget as well as from the regional income and expenditure budget to meet the needs for the management of national education.
• The government shall advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind.

Article 32

• The country shall promote Indonesia’s national culture in the midst of world civilization by guaranteeing the freedom of the people in maintaining the development of cultural values.
• The Country respects and maintains regional languages as national cultural assets.

NATIONAL ECONOMY AND SOCIAL WELFARE

Article 33

• The economy is structured as a joint effort based on the principle of kinship.
• Production branches which are important to the country and which affect the livelihood of the public shall be controlled by the state.
• The land and water and natural resources contained therein shall be controlled by the country and used for the greatest prosperity of the people.
• The national economy shall be implemented based on economic democracy with the principles of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance between progress and national economic unity.
• Further provisions regarding the implementation of this article shall be regulated in law.

Article 34

• The poor and neglected children are cared by the country.
• The country develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity.
• The country is responsible for the provision of adequate health service facilities and public service facilities.
• Further provisions regarding the implementation of this article are regulated in law.

Human Rights in Indonesia was regulated in Undang-undang No. 39 tahun 1999 concerning Human Rights which regulated as follows:

CHAPTER I

GENERAL REQUIREMENTS

article 1

In this law what is meant by:

1. Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts that must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human value and dignity.
2. Basic human obligations are a set of obligations which if it isn’t implemented, then the realization and the upholding of human rights won’t be possible.
3. Discrimination is any limitation, harassment or exclusion that is directly or indirectly based on human differentiation on the basis of religion, ethnicity, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in reduction, deviation or elimination of recognition, implementation or the use of human rights and basic freedoms in life, both individually and collectively in the political, economic, legal, social, cultural and other aspects of life.
4. Torture is any act that is done on purpose, causing great pain or suffering, both physically and spiritually, to a person in order to obtain a confession or information from someone or from a third person, by punishing him/her for an act that the person has committed or suspected to be committed by someone or a third person, or threatening or coercing someone or a third person, or for any reason based on any form of discrimination, if the pain or suffering is caused by, at the instigation of, with the consent or knowledge of anyone and or public officials.
5. Child is any human being under 18 (eighteen) years old and hasn’t married, including children who are still in the womb if it is in his interest.
6. Violation of human rights is every act of a person or group of people, including the country apparatus, whether intentional or unintentional or negligence which unlawfully reduces, obstructs, limits and or removes the human rights of a person or group of people guaranteed by this law and do not receive or are worried that they will not obtain a fair and correct legal settlement, based on the applicable legal mechanism.
7. The National Commission on Human Rights, hereinafter referred to as Komnas HAM, is an independent institution that is at the same level as other country’s institutions which functions to carry out human rights studies, research, counseling, monitoring and mediation.

CHAPTER II

BASIC PRINCIPLES

Article 2

The Republic of Indonesia recognizes and upholds human rights and basic human freedoms as the rights which are naturally inherent to and inseparable from humans, which must be protected, respected and upheld for the sake of enhancing human dignity, welfare, blissfulness, intelligence and justice.

Article 3

• Everyone is born free with the same and equal human dignity and is endowed with a mind and conscience to live in a society, nation and state in a spirit of brotherhood.
• Everyone has the rights to the recognition, guarantee, protection and fair legal treatment and to receive legal certainty also equal treatment before the law.
• Everyone has the rights to the protection of human rights and basic human freedoms, without discrimination.

Article 4

The rights to life, the rights not to be tortured, the rights to personal freedom, thought and conscience, the rights to religion, the rights not to be enslaved, the rights to be recognized as a person and equality before the law, and the rights not to be prosecuted on the basis of law which applies retroactively are rights human rights that cannot be reduced under any circumstances and by anyone.

Article 5

• Everyone is recognized as an individual human being entitled to demand and receive equal treatment and protection in accordance with his human dignity before the law.
• Everyone has the rights to fair assistance and protection from an objective and impartial court.
• Everyone who belong to a vulnerable group of people has the rights to receive more treatment and protection with respect to their specifics.

Article 7

• Everyone has the rights to use all legal remedies at national and international forums for all human rights violations which guaranteed by Indonesian law and international law regarding human rights that have accepted by the Republic of Indonesia.
• The provisions of international law that have accepted by the Republic of Indonesia concerning human rights become national law

Article 8

The protection, promotion, enforcement and fulfillment of human rights are primarily the responsibility of the government.

Article 9

• Everyone has the rights to live, defend his/her life and improve his/her standard of living.
• Everyone has the rights to live in peace, security, peace, cheerfully, physical and spiritual prosperity.
• Everyone has the right to a good and healthy environment.

RIGHT TO JUSTICE

Article 17

Everyone, without discrimination, have the right to obtain justice by submitting applications, complaints, and lawsuits in criminal, civil and administrative cases as well as being tried through a trial process that is free and impartial, in accordance with the procedural law which guarantees an objective examination by an honest and fair judge to get a fair and correct decision.

Article 18

• Every person who is arrested, detained and prosecuted because he is suspected of having committed a criminal act has the rights to be presumed innocent until proven guilty legally in a court session and given all legal guarantees necessary for his/her defense, in accordance with the provisions of laws and regulations.
• Every person may not be prosecuted to be punished or sentenced to punishment unless based on a statutory regulation that have existed before the crime was committed.
• Every time there is a change in statutory regulations, the most favorable provisions for the suspect shall apply.
• Everyone who being examined has the rights to receive legal assistance from the time of the investigation until a court decision is legally binding.
• Everyone cannot be prosecuted for the second time in the same case for an act which has obtained a court decision that has permanent legal force.

Article 19

• No offense nor crime whatsoever is punishable by the penalty of confiscation of all property belonging to the offender.
• No person on a court decision may be sentenced to imprisonment or confinement on the basis of the inability to fulfill an obligation in the debt and credit agreement.

Article 22

• Everyone is free to embrace his/her own religion and to worship according to his/her religion and beliefs.
• The State guarantees the freedom of everyone to embrace their respective religions and to worship according to their religion and beliefs.

Article 26

• Everyone has the rights to have, obtain, change or maintain his/her citizenship status.
• Everyone is free to choose his nationality and without discrimination, has the right to enjoy the rights that come from and inherent in his citizenship and must carry out his obligations as a citizen in accordance with the provisions of laws and regulations.

SECTION SIXTH

THE RIGHT TO FEEL SECURE

Article 28

• Everyone has the rights to seek asylum to obtain political protection from other countries.
• The rights as meant in paragraph (1) do not apply to those who commit non-political crimes or acts contrary to the aims and principles of the united nations.

Article 29

• Everyone has the rights to protection of self-personal, family, honor, dignity and property.
• Everyone has the rights to recognition everywhere as a personal human before the law.

Article 30

Everyone has the rights to a sense of safe, secure and protection against the threat of fear to do or not do something.

Article 31

• The place of residence of any person may not be disturbed.
• Stepping on or entering a compound of residence or entering a house against the will of the person living in it, is only permitted in matters stipulated by law.

Article 32

Freedom and confidentiality in correspondence, including communication through electronic means, must not be disturbed, except by order of a judge or other lawful authority in accordance with the provisions of laws and regulations.

Article 33

• Everyone has the rights to be free from torture, punishment, cruelty or inhuman treatment neither degrading his/her human dignity.
• Everyone has the rights to be free from enforced disappearance and deprivation of life.

Article 34

Everyone may not be arrested, exhibited, tortured, excommunicated, exiled or dumped arbitrarily.

Article 35

Everyone who has the rights to live in a peaceful, safe and secure society and state, which respects, protects and implements human rights and basic human obligations are regulated in this law.

THE RIGHT TO WELFARE

Article 36

• Everyone has the rights to own property, individually or collectively with others for the development of him/herself, his/her family, the nation and the community in a way that does not violate the law.
• No person may be confiscated from his/her property arbitrarily and illegally.
• Property rights have a social function.

Article 41

• Every citizen has the rights to social security necessary for a decent life and for his full personal development.
• Everyone with disabilities, elderly people, pregnant women and children has the rights to receive special facilities and treatment.

Article 42

Every citizen who is elderly, physically and or mentally disabled has the rights to receive special care, education, training and assistance at the state’s expense, to ensure a decent life in accordance with his human dignity, increase self-confidence, and the ability to participate in the life of the community, nation and in the country.

WOMEN’S RIGHTS

Article 45

The rights of women in this law are human rights.

Article 47

A woman who marries a man of foreign nationality does not automatically follow her husband’s citizenship/nationality status but has the right to retain, change or regain her nationality/citizenship status.

Article 48

Women have the rights to obtain education and teaching at all types, levels and paths of education in accordance with predetermined requirements.

Article 49

• Women have the rights to choose, be elected, appointed in jobs, positions and professions in accordance with statutory requirements and regulations.
• Women have the rights to receive special protection in the implementation of their work or profession against things that can threaten their safety and or health with respect to women’s reproductive function.
• The special rights inherent in women due to their reproductive function are guaranteed and protected by law.

Article 50

An adult and / or married woman has the rights to carry out legal actions on her own, unless otherwise stipulated by her religious law.

Article 51

• A wife while in the marriage bond has the same rights and responsibilities as her husband for all matters relating to her married life, relations with her children and the right to own and manage joint assets.
• After the divorce, a woman has the same rights and responsibilities as her ex-husband for all matters relating to her children, by considering the best interests of the children.
• After the divorce, a woman has the same rights as her ex-husband over all matters relating to joint assets without reducing children’s rights, in accordance with the provisions of laws and regulations.

PART TEN

CHILDREN’S RIGHTS

Article 52

• Every child has the rights of protection by parents, family, society and the country.
• Children’s rights are human rights and for the sake of their interests, children’s rights are recognized and protected by law even from the time they are in the womb.

Article 53

• Every child since in the womb has the rights to live, to maintain life and to improve his standard of living.
• Since birth, every child is entitled to a name and citizenship status.

Article 54

Every child with physical and or mental disabilities has the rights to receive special care, education, training and assistance at the expense of the state, to ensure his life in accordance with human dignity, increase self-confidence and the ability to participate in the life of the community, nation and state.

Article 58

• Every child has the right to obtain legal protection from all forms of physical or mental violence, neglect, ill-treatment and sexual harassment while in the care of his parents or guardians, or any other party responsible for the care of the child.
• In the event that a parent, guardian or child caregiver who commits all forms of physical or mental abuse, neglect, ill-treatment, and sexual harassment including rape, and / or murder of a child which should be protected, it shall be subject to a higher penalty.

Article 60

• Every child has the rights to receive education and teaching in the framework of personal development according to his/her interests, talents and level of intelligence.
• Every child has the rights to seek, receive, and provide information according to his/her intellectual level and age for the sake of his/her own development as long as it is in accordance with the values of decency and propriety.

Article 64

Every child has the rights to get protection from economic exploitation activities and any work that endangers them, so that it can interfere with his/her education, health, physical, moral, social life, and mental spirituality.

Article 65

Every child has the rights to get protection from activities of sexual exploitation and abuse, kidnapping, child trafficking, and from various forms of abuse of narcotics, psychotropic substances and other addictive substances.

Article 66

• Every child has the rights not to be subjected to mistreatment, torture or inhuman punishment.
• The death penalty or life sentence cannot be imposed for the offender who is a child.
• Every child has the rights not to be illegally deprived of his/her freedom.
• The arrest, detention or imprisonment of children may only be carried out in accordance with the applicable law and can only be carried out as the last resort.
• Every child who is deprived of his/her freedom has the rights to receive humane treatment and with due observance of personal development needs according to his age and must be separated from adults, except in his/her interest.
• Every child who is deprived of his/her freedom has the rights to obtain legal aid or other assistance effectively at every stage of the applicable legal efforts.
• Every child who is deprived of his/her freedom has the rights to defend him/herself and to receive justice in an objective and impartial Juvenile Court in a closed session to the public.

CHAPTER IV

BASIC HUMAN OBLIGATIONS

Article 67

Everyone who is in the territory of the Republic of Indonesia is obliged to comply with statutory regulations, unwritten laws and international law regarding human rights that have been accepted by the Republic of Indonesia.

Article 68

Every citizen is obliged to participate in efforts to defend the state in accordance with the provisions of laws and regulations.

Article 69

(1) Everyone is obliged to respect the human rights of others, morals, ethics and order of life in society, nation and in the country.

(2) Every human rights person creates a basic obligation and responsibility to respect the human rights of others mutually and it is the duty of the Government to respect, protect, enforce and promote them.

Article 70

In exercising their rights and freedoms, everyone is obliged to comply with the restrictions established by law with the aim of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of moral, security and public order in a democratic society.

CHAPTER V

GOVERNMENT OBLIGATIONS AND RESPONSIBILITIES

Article 71

The government is obliged and responsible for respecting, protecting, upholding and promoting human rights as regulated in this law, other laws and regulations and international human rights law accepted by the Republic of Indonesia.

Article 72

The obligations and responsibilities of the government as referred to in Article 71, include steps for effective implementation in the fields of law, politics, economy, social, culture, national defense and security and other fields.

by Dharma Na Gara

Law and Justice

A. Law

Definition of Law

Law according to Mr. Soerojo Wignojodipoero in the book Introduction to Legal Studies states that law is:

The compilation of compelling living laws and regulations, contains an order, prohibition, or permission to do or not do something and with the intention of regulating involvement in life.

Satjipto Raharjo explained that law is a human work in the form of norms containing behavioral guidelines. Law is a reflection of the human will about how society should be nurtured and where it should be directed. Therefore, law contains first of all a record of the ideas chosen by the society in which it was created. These ideas are in the form of ideas about justice.

Sudikno Mertokusumo explained that law is a legal norm which is a provision or guideline on what should or must be done. In essence, the rule of law is the formulation of opinions or views on how someone should or must behave. As a guidance legal norm has characteristic of general and passive.

J.C.T. Simorangkir and Woerjono Sastropranoto explained that laws are coercive regulations made by authorized bodies, which determine human behavior in society, violations of these regulations result in punitive action being taken.

B. Judicature

Definition of Judicature

Judicature is the job of judges or court bodies. Judges and courts are bodies that are firmly charged with the task of examining complaints about tampering with rights (law) or examining lawsuits and these bodies issue legal decisions.

Judicature consists of fair and everything that is related to court. Court here is not defined solely as a body to judge, but as an abstract meaning, namely the matter of providing justice. Providing justice means that which is related to the duties of the judiciary bodies or judges in providing justice, namely giving the person concerned concretely to those who ask for justice, what is their right or what the law is. In other words, judicature is everything that is related to the duty of the judges in deciding cases, whether civil cases or criminal cases, to maintain or ensure compliance with material law. Judicature laws are more likely to settle cases through courts as their institutions, while judicature justice take more steps outside the court, such as by way of peace through arbitration institutions.

C. Law and Justice

Law is an institution to create justice in society. Legal experts differ widely in formulating justice.

Justice can indeed be formulated in a simple way as a benchmark used by experts in defining justice. The formulas include:

1. Justice from Hans Kelsen’s point of view

According to him, justice is a certain social order in an effort to seek truth that develops fertile. Justice includes justice for freedom, justice for peace, justice for democracy, justice for tolerance.

2. Herber Spenser

Everyone is free to decide what to do as long as he does not violate the same freedoms of others.

3. Justinian

Justice is a virtue that produces results, that everyone gets what is their rights.

4. Ulpian

Justice is a will that is permanent and perpetual to give everyone what is belong/deserve to each of them (Justitia est constans et perpetua voluntas ius ssum curique tribuendi).

5. Aristotle

Justice is a political policy whose rules form the basis of state regulations and these rules are a measure of what is right. People must control themselves from Pleonesia, that is to gain advantage for themselves by taking away what belongs to others, or rejecting what should be given to others.

D. Law as a protector of Rights

The law protects a person’s interests by allocating a power to him to act in the framework of those interests. This allocation of power is carried out in a measured manner, in the sense that its breadth and depth are determined. Such power is known as rights.

Rights not only contain elements of protection and interests but rights also contain elements of will. If a person owns a plot of land, then the law gives him rights in the sense that his interest in the land is protected. He has free to will with the land that he owns.

According to Fitzgerald, the characteristics of rights inherent in law are:

1. The right is attached to someone who is called the owner or subject of the right. He is also known as the person who has the title for the goods which are the target of rights.
2. The right is assigned to another person, namely becoming the holder of the obligation. Between rights and obligations there is a correlative relationship.
3. This right that is in someone obliges the other party to do (commission) or not to do (omission) an act. This right can be called the content of rights.
4. Commission or omission concerns something that can be called the object of rights.
5. Every right according to law has a title, which is a certain event on which why the right is attached to the owner.

The term right is also used in the sense of immunity from the jurisdiction of others. Just as power is the ability to change legal relations, this immunity is liberation from the existence of a legal relationship that can be changed by others. Immunity has the same position in relation to power as between freedom and rights in a narrow sense: immunity is liberation from the power of others, while freedom is liberation from the rights of others.

Rights can be grouped as follows:

1. Perfect rights and imperfect rights

Perfect rights are those that can be exercised through law as if necessarily through coercion by law. Imperfect rights are those that are recognized by law, but are not always exercised by the courts, such as rights that are limited by expired institutions.

2. Primary and additional rights

Primary rights are those that are extended by other rights. Additional rights are those that complement the main rights, such as land lease agreements that give additional rights to the main rights of the land owner.

3. Public rights and civil rights

Public rights are those that exist in general society, namely the state. Civil rights are those that exist in individuals, such as the right of a person to enjoy the goods they own.

4. Positive and negative rights

Positive rights demand positive actions from the party where the correlative obligation lies, such as the right to receive personal benefits.

6. Rights to own and Personal Rights

Rights to own relate to items owned by a person that are normally transferable. Personal rights relate to a person’s position which can never be transferred.

E. Obligations

Between rights and obligations have a very close relationship. Obligations are absolutely necessary for someone who wants his rights to be fulfilled. A person can claim his rights if he has completed his obligations.

Curzon classifies obligations into several groups, namely:

1. Absolute and relative obligations

Austin stated that an absolute obligation is one that does not have rights pair, such as an obligation directed to oneself, which is demanded by society in general; which is only addressed to the power (sovereign) in charge of it. Relative power is that which involves rights on the other hand.

2. Public and civil obligations

Public obligations are those that correlate with public rights, such as the obligation to comply with criminal law. Civil obligations are correlative to civil rights, such as obligations arising from an agreement.

3. Positive and negative obligations

Positive obligation requires positive actions such as the seller’s obligation to deliver goods to the buyer. A negative obligation is one that requires a party not to do something, such as a person’s obligation not to do something that disturbs a neighbor’s property.

4. Universal, general and special obligations

Universal obligations are addressed to all citizens, such as those arising from law. General obligations are addressed to a certain class of people, such as foreigners, parents (father, mother). Special obligations are those that arise from certain areas of law, such as obligations in contract law.

5. Primary and sanctioning obligations

Primary obligations are those that do not arise from acts that are against the law, such as the obligation of a person not to defame others, which in this case does not arise from violations of other previous obligations. Obligations that are sanctioned are those that arise solely from acts that are against the law, such as the obligation of the defendant to pay the lawsuit of another party who has won the case.

F. Responsibility in view of the Law

Responsibility is the result of an act. When someone does an action, that action will have an impact on other people, the impact or consequence must be borne by the person who did the action. Responsibility is sued because there is an error that can harm the rights and interests of others.

According to Roscoe Pound, there are three types of responsibilities, namely:

1. Liability for deliberate loss.
2. Liability for loss due to negligence and accidental.
3. Liability in certain cases for damages incurred not due to negligence and accidentally.

Accountability is a case of offense, if the injured party does not file a case, then there is no claim to be responsible. Submission of these cases can be pursued by court and can also be pursued by reconciliation with compensation.

G. Justice

1. Definition of Justice

Justice comes from the word just, according to the Indonesian Dictionary, just is not arbitrary, impartial[1]. Fair mainly implies that decisions and actions are based on objective norms, so they are not subjective, moreover arbitrary. Justice is basically a relative concept, everyone is not equal, fair according to one is not necessarily fair to others, when someone asserts that he is doing justice, it must be relevant to public order where a scale of justice is recognized. The scale of justice varies greatly from place to place, each scale is defined and fully determined by the community in accordance with the public order of that society. For most people justice is a general principle, that individuals should receive what they deserve[2].

Justice is a major virtue in social institutions as well as truth in systems of thought. A theory, however elegant and economic, must be rejected or revised if it is not true, so laws and institutions, no matter how efficient and neat it is, must be reformed or abolished if they are unfair. Everyone has an honor based on justice that the whole of society cannot even cancel it. On this basis justice is justified by the greater that others get. Justice does not allow the sacrifices imposed on the few to be aggravated by the Most of the benefits enjoyed by many. Therefore, in a just society the freedom of the citizen is considered established, the rights guaranteed by justice are not subject to political bargaining or social interest calculations[3].

In Indonesia, justice is described in Pancasila as the basis of the country, namely social justice for all Indonesian people. The values contained in the principle of social justice for all Indonesian people are based on and inspired by the principle of beliefs in God, Just and Civilized Humanity, Indonesian Unity, and Democracy led by philosophy wisdom in Deliberation / Representation. The fifth principle contains values which are the goals in life together. So, the fifth principle contains the values of justice that must be manifested in life together (social life). As for justice is based on and imbued with the essence of human justice, namely justice in the relationship between man and himself, human being with other humans, man with society, nation and state, as well as the relationship between man and his God[4].

A sense of justice is essentially the fruit of a human’s spiritual work. And, a human being is primarily individual or subjective. However, in social life for years, centuries, ages, each member of society has naturally, without thought, felt that the passions of each in the end must be reduced to give the other members of society a chance to feel pleasure also in living together in this world.

Thus, the sense of justice of each member of society, even though it is attached to each individual, generally already contains an element of mutual respect for each other’s interests so that it is appropriate that among the various feelings of justice from various elements of society there is a similarity in rhythm which allows for equality of existence as well as the fruit of that sense of justice[5].

If justice is interpreted as social happiness, then social happiness will be achieved if the needs of the social individual are met. Fair regulations are rules that can ensure the fulfillment of these needs. But it is inevitable the fact that one’s desire for happiness can conflict with the wishes of others. So, justice is the fulfillment of individual desires in a certain level. The greatest justice is the fulfillment of the wishes of as many people as possible[6]. But if justice is interpreted as legality. It is fair if a rule is applied to one case but not the same in another. Justice in the sense of legality is a quality that is not related to the content of positive rules, but with its implementation. According to legality, a statement that an individual’s action is fair or unfair means legal or illegal, that is, the action is in accordance with or not with valid legal norms to assess as part of a positive legal system. Only in this sense of legality can justice enter into the science of law[7].

Justice is a fair behavior, namely placing everything in its place or in accordance with its portion, fairness does not have to apply equally to everyone but the characteristic is subjective. Everything that has become the provisions of Allah must be fair, therefore Allah commands mankind to behave fairly, because fair is closer to piety. To receive justice at first it will feel heavy and unable to accept it, therefore to accept justice the key is sincerity, while to accept sincerity is also very hard at first, but if it is felt and submitted to Allah the God of the Universe, you will certainly be able to accept it, so that to carry out sincerity one must be patient and trust in God who orders everything[8].

So that not happen justice like the elephant story studied by blind researchers. Each researcher feels different parts of the legs, ears, tusks, so that each of them describes this in different ways as well as fat and strong, thin and pliable, smooth and hard. While the elephant itself the justice can never be fully recognized by any individual description[9].

So, the criteria of justice, like the criteria of truth, does not depend on the frequency with which the justification is made. Because humans are divided into many different nations, classes, religions, professions and so on, there are also many different ideas of justice. Too many to call one of them justice[10]. Likewise, the research of the blind people on the elephant mentioned above, each researcher feels a different part.

Because justice and truth as compass, thus the legal process runs objectively and rationally, rationally means that there are clear, logical and acceptable standards for anyone’s common sense. Objective, means that case resolution must follow normative procedures related to the problem being handled, not following the subjective will of the law enforcement party. That’s the criteria that must be applied to anyone indiscriminately. So that everyone benefits from the existence of laws that are truly objective, fair, rational. The wicked must be punished, the weak are not treated arbitrarily according to the orders of the strong. And, the strong people, there is no compromise, must be prosecuted if found to have broken the law. The law places everyone equal[11].

2. Justice according to the Philosopher

a. Plato

In the context of Plato’s doctrine of ideas, the idea of justice can be shown in relation to the idea of the state (polis), because the contemplation of the idea of the state (polis) produces an image in which laws and regulations hardly play no role at all[12]. According to Plato, justice is the emancipation and participation of citizens (polis) in the idea of goodness in the state and it is a philosophical consideration for a law.

b. Aristotle

Aristotle was a Greek philosopher who spoke quite clearly about justice. From his work Ethics Nichomachea can be seen his thoughts about justice. For Aristotle, virtue, namely obedience to the law (policy law at that time, written or unwritten) was justice. Aristotle distinguishes justice into two, namely:

• Distributive justice is justice that applies in public law, which focuses on the distribution, honorarium for wealth and other goods obtained by members of the public.
• Corrective justice, is justice related to correcting something wrong, providing compensation for the injured party or an appropriate punishment for the perpetrator of the crime. So compensation and sanctions are a corrective justice according to Aristotle[13].

More fully regarding justice according to Aristotle was put forward by Theo Huijbers, including:

1. Justice in the division of positions and public assets. This is where geometric similarity applies. For example, if a regent is twice as important than a subdistrict head, then the regent must receive twice as much honor as a subdistrict head. To equal importance is given equal, and unequal importance is given unequal.
2. Justice in buying and selling. According to him, the price of goods depends on the position of the party. This is now impossible to accept.
3. Justice as arithmetic equality in the private or public sphere. If a person steals, then he must be punished, regardless of the position of the person concerned. Now, if an official is legally proven to have committed corruption then that official must be punished, regardless of whether he is an official.
4. Justice in the field of legal interpretation. Because the law is general in nature, it does not cover all concrete issues, the judge must interpret it as if he himself were involved in the concrete event. According to Aristotle, the judge must have epikeia, which is “a sense of what is appropriate[14].

c. Friedrich Nietzsche

In his work entitled Menschlisches Allzumenschliches, he says that originally justice is the same power or force. Or justice is reward or respond and exchange on condition that the position of power or authority is roughly the same. So, for example, that originally revenge lies within the sphere of justice. It is an exchange[15].

d. Gustav Radbruch

Justice can be distinguished in several meanings:

• Justice as a prominent or virtue (Gerechtigkeit als Tugend), namely justice as a personal trait or quality (for example for a judge). Here is subjective justice, and justice as the nature or quality of human relations (for example, a fair price). Subjective justice is a stand or attitude, views and beliefs directed towards the realization of objective justice as primary justice. Meanwhile subjective justice is secondary. What is objective justice is less clear. Perhaps in Radbruch’s view, objective justice is justice in human relations.
• Justice according to the standard of positive law and justice according to the ideals of law (rechtsidee), or positive law and the ideals of law is the source of justice.
• The essence of justice is equality (Gleichheit). Here Radbruch follows Aristotle’s opinion of justice, namely commutative justice (for example between achievement and counter-achievement) and distributive justice (in the private and public spheres. Private: salaries are paid according to work performance, public: positions based on qualifications)[16].

e. John Stuart Mill and Bentham

Explaining justice is the greatest benefit or happiness to many people. So a small number of people or individuals can become victims for the sake of many people and that is still called “justice” as well[17].

f. Jacques Derrida

Derrida explained that justice is an experience of the impossible, an experience as “crossing” in a sense, an experience is something that opens a path, makes access and breaks down. Justice is an experience of aporia, which is a limit of things that can be experienced, for example, people are trapped in a dead end, or in other words, aporia of no access, dead ends means that someone cannot fully experience justice[18].

g. Notohamidjojo Notohamidjojo distinguishes justice into three, namely:

• Vindicative justice, is justice that imposes a sentence in accordance with the crime committed.
• Creative justice is justice that provides equal opportunities and freedom for everyone to create positively.
• Protective justice is justice that provides equal protection for everyone in society[19].

h. Widiartana Widiartana explained that in criminal law there are usually two kinds of justice, namely as follows:

1. Retributive justice is justice that focuses on the conviction of the perpetrator of a crime as retribution or reward for the crime he has committed.
2. Restorative justice is justice that focuses more on or focuses on repairing or restoring victims who have suffered as a result of the perpetrator’s crime. In other words, this justice is shown more to the victim than to the perpetrator. This is also a form of responsibility for the perpetrators without neglecting the interests of rehabilitation for the perpetrators. According to Widiartana, restorative justice in the criminal field is more in line with the principle of kinship in Pancasila (Pancasila is the basis of the state and basis of the philosophy of the Republic of Indonesia). It is fair that the perpetrator of the crime is convicted. For example, perpetrators of crimes in domestic crime, but it is also fairer if the victims are given recovery[20].

From the various definitions above, it is very clear that there are various understandings of the meaning of justice. There are those who associate justice with state political regulations, so that the measure of what is a right or not is always based on a measure determined by the state. There are those who see justice in the form of a willingness that is permanent and perpetual, to provide what is right for everyone. There are also those who see justice as a justification for the implementation of law, as opposed to arbitrariness.

Thus, there are also expressions about “justice” that place justice as something that must be sanctified, and exist not only in the courtroom, but everywhere, and must be cleaned of the filth of scandal and corruption. Among the above expressions, there are those who assert that there is no such thing as perfect “justice”, there is only the attainment of justice in a certain level[21].

[1] Eko Hadi Wiyono, Kamus Bahasa Indonesia Lengkap, Jakarta, Akar Media, 2007, p. 10.

[2] M. Agus Santoso, Hukum, Moral, dan Keadilan, Jakarta, Kencana Prenadamedia Group, 2012, p. 85.

[3] John Rawls, A Theory of justice Teori Keadilan Dasar-dasar Filsafat Politik untuk Mewujudkan Kesejahteraan Sosial dalam Negara, Yogyakarta, Pustaka Pelajar, 2011, p. 3-4.

[4] Kaelan, Pendidikan Kewarganegaraan untuk Perguruan Tinggi, Yogyakarta, Paradigma, 2007, p. 36.

[5] Wirjono Prodjodikoro, Asas-asas Hukum Pidana di Indonesia, Bandung, Refika Aditama, 2008, p. 18-19.

[6] Hans Kelsen dalam Jimly Asshiddiqie dan M. Ali Safa’at, Teori Hans Kelsen tentang Hukum, Jakarta, Konstitusi Press, 2012, p. 17.

[7] Ibid., p. 21.

[8] M. Agus Santoso, Op. cit., p. 87-88.

[9] Karen Leback, Teori-teori Keadilan Six Theories of Justice, Suplemen: Konsep Keadilan dalam Kristen, oleh Hans Kelsen, Bandung, Nusa Media, 1986, p. 1.

[10] Jimly Asshiddiqie dan M Ali Safa’at, Op. cit, p. 18.

[11] Dossy Iskandar Prasetyo dan Bernard L. Tanya, Hukum Etika dan Kekuasaan Yogyakarta, Genta Publishing, 2011, p. 111-112.

[12] Carl Joachim Friedrich, Filsafat Hukum Perspektif Historis, Bandung, Nusa Media, 2010, p. 19.

[13] Aristoteles dalam Theo Huijbers, Filsafat Hukum dalam Lintas Sejarah, Yogyakarta, Kanisius, 1984, p. 29.

[14] Ibid., p. 30.

[15] Friedrich Nietzsche, dalam Hyronimus Rhiti, Filsafat Hukum (dari Klasik sampai Postmodernisme), Edisi lengkap, Yogyakarta, Universitas Atma Jaya, 2011, p. 244.

[16] Ibid., p. 245.

[17] Ibid., p. 246.

[18] Derrida dalam Anthon F. Susanto, Ilmu Hukum-Non Sistematik, Fondasi Filsafat Pengembangan Ilmu Hukum Indonesia, Yogyakarta, Genta Publishing, 2010, p. 94

[19] Notohamidjojo, Soal-soal Pokok Filsafat Hukum, Jakarta, BPK Gunung Mulia, 1975, p. 53-54.

[20] G. Widiartana, Keadilan Restoratif pada Kebijakan Penanggulangan Kekerasan dalam Rumah Tangga dengan Hukum Pidana, Makalah Diskusi, Yogyakarta, Fakultas hukum UAJY, 2010, p. 5.

[21] Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicial Prudence) Termasuk Interprestasi Undang-undang (Legisprudence), vol 1 Pemahaman Awal, Jakarta, Prenadamedia Group, 2012, p. 221-222.

by Dharma Na Gara

Consumer Protection Law in Indonesia

The rights and obligations of the consumer are regulated in Republic Indonesia Law Number 8 Year 1999 regarding Consumer Protection (Undang-undang No. 8 Tahun 1999 tentang Perlindungan Konsumen).
Article 4 establishes consumer rights as follows:

1. The rights to security, comfort and safety in consuming goods and / or services.
2. The rights to choose goods and / or services and to obtain these goods and / or services in accordance with the exchange rates and conditions and guarantees promised.
3. The rights to have correct, clear and honest information regarding the condition and guarantee of goods and / or services.
4. The right to be heard or complained about the goods and / or services which have been used.
5. The right to obtain advocacy, protection and proper consumer protection dispute resolution efforts.
6. The rights to get guidance and consumer education.
7. The right to be treated or served correctly and honestly in a non-discriminatory manner.
8. The right to get compensation, indemnity and / or replacement, if the goods and / or services received are not in accordance with the agreement or not as it should be.
9. Rights stipulated in the other provisions of laws and regulations.

Apart from these consumer rights, the law also regulates consumer rights which are formulated in the following articles, namely regarding the obligations of business actors. Obligations and rights are actually antinomies in law, so that the obligations of business actors can be seen and as (part of) consumer rights. The obligations of business actors as regulated in Article 7 include:

1. In good faith in carrying out business activities.
2. To provide true, clear and honest information regarding the condition and guarantee of goods and / or services and provide an explanation of the use, repair and maintenance.
3. Treating or serving consumers properly and honestly and not discriminatory.
4. Ensuring the quality of goods and / or services produced and / or traded based on the prevailing quality standards for goods and / or services.
5. To provide the opportunity for consumers to test, and / or try certain goods and / or services and to provide guarantees for the produced goods and / or traded.
6. To provide compensation, indemnity and / or replacement for losses resulting from the use and the utilization of traded goods and / or services.
7. To provide compensation and / or indemnity if the goods and / or services received or used are not in accordance with the agreement.

Article 5, Apart from obtaining these rights, consumers also have the obligation to:

1. Read or follow information instructions and procedures for the use or utilization of goods and / or services, for security and safety.
2. Have good faith in purchasing transactions for goods and / or services.
3. Pay according to the agreed exchange rate.
4. Participating in proper legal settlement of consumer protection disputes.

Simultaneously, based on Article 6, business actors also have rights that must be protected. The rights of business actors are also part of the obligations of consumers, namely:

1. The rights to receive payment in accordance with the agreement regarding the conditions and exchange value of the goods and / or services being traded.
2. The rights to get legal protection from consumer actions with bad faith.
3. The rights to defend properly in the settlement of consumer disputes.
4. The rights to rehabilitate a good name if it is legally proven that the consumer’s loss was not caused by the goods and / or services being traded.
5. Other rights which regulated in the other provisions of laws and regulations.

Furthermore, Law Number 8 Year 1999 regarding consumer protection stipulates restrictions for business actors which result in consumer losses. Violation of these prohibitions is a criminal offense.
Article 8, business actors are prohibited from producing and / or trading goods and / or services which:

1. Do not meet or does not comply with the required standards and statutory provisions.
2. Do not in accordance with net weight, net content, and the amount in the calculation as stated on the label or etiquette of the goods.
3. Do not according to the actual size, measure, scale and amount calculated according to the actual size.
4. Do not in accordance with the conditions, guarantees, features or efficacy as stated in the label, etiquette or description of the goods and / or services.
5. Do not in accordance with certain quality, level, composition, processing, style, mode or use as stated in the label or description of the goods and / or services.
6. Do not in accordance with the promise stated in the label, etiquette, description, advertisement or sale promotion of the goods and / or services.
7. Do not write down the expiration date or the period of use / utilization that is the best suited for certain goods.
8. Do not comply with the provisions for halal production, as stated in the statement “halal” which is stated in the label.
9. Do not attaching labels or making descriptions of goods that contain the name of the goods, size, or net weight / content, composition, rules of use, date of manufacture, side effects, names and addresses of business actors, as well as other information for uses which according to the provisions must be installed / made.
10. Do not include information and / or instructions for the use of goods in Indonesian Language in accordance with the provisions of the prevailing laws and regulations.

Article 8 paragraph (2) business actors are prohibited from trading defective or used and tainted goods without providing complete and correct information on the goods. Article 8 paragraph (3) business actors are also prohibited from trading damaged, defective or used and tainted pharmaceutical and food supply, with or without providing complete and correct information. Thus, business actors who commit such violations are prohibited from trading these goods and / or services and must withdraw them from circulation.

Article 9, business actors are prohibited from trading, offering, promoting, advertising goods and / or services incorrectly, and / or as if:

1. The said goods have fulfilled and / or discounted prices, special prices, certain quality standards, certain styles or modes, certain characteristics, history or certain uses.
2. The goods are in good condition and / or new.
3. The goods and / or services have obtained and / or had sponsorship, approval, certain equipment, certain benefits, work characteristics or certain accessories.
4. The goods and / or services are made by a company that has a sponsor, agreement or affiliation.
5. The goods and / or services are available.
6. The item contains no hidden defects.
7. The goods are completeness of certain goods.
8. The goods come from certain areas.
9. Directly or indirectly degrading other goods and / or services.
10. Using excessive words, such as safe, harmless, does not contain risks or side effects without complete information.
11. Offer something that contains an uncertain promise.

Article 10, business actors in offering goods and / or services intended for trade are prohibited from offering, promoting, advertising or making false or misleading statements regarding:

1. The price or tariff of the goods and / or services.
   2. The utility of the goods and / or services.
   3. The conditions, coverage, guarantees, rights or indemnity of the goods and / or services.
   4. Offers of discounts or attractive prizes offered.
   5. The danger of using goods and / or services.

Article 15, business actors in offering goods and / or services are prohibited to do such a coercion or other means that may cause both physical and psychological disturbances to consumers.

Article 16, in offering goods and / or services through an order, business actors are prohibited from:

1. Failure to keep the order and / or the settlement time agreement as promised.
2. Not keeping promises for a service and / or achievements.

Article 17, advertising business actors are prohibited from producing advertisements which:

1. Fooling consumers regarding the quality, quantity, materials, utility, price of the goods and / or rates of service as well as the punctuality of receiving the goods and / or services.
2. Fraud the guarantees of the goods and / or services.
3. Contains false, wrong or inaccurate information regarding the goods and / or services.
4. Does not contain information about the risks of using the goods and / or services.

Standard clause
The Consumer Protection Law Article 18 paragraph (1) prohibits business actors from including standard clauses in every agreement and document if:

1. Declare the transfer of responsibility of the business actor.
2. State that the business actor has the right to refuse the return of goods purchased by consumers.
3. Declare that the business actor has the right to refuse the return of money paid for goods and / or services purchased by consumers.
4. Declare the granting of power from consumers to business actors, either directly or indirectly, to take all unilateral actions relating to goods purchased by consumers in installments.
5. Regulate about the proof of the loss of use of goods or use of services purchased by consumers.
6. Give business actors the right to reduce the benefits of services or reduce the assets of consumers which are the object of sale and purchase services.
7. Declare the consumer’s submission to regulations in the form of new, additional, advanced and / or further amendments made unilaterally by the business actor during the period when the consumer utilizes the service purchased.

Article 18 paragraph (2) also prohibits business actors from including standard clauses whose location or shape is difficult to see or cannot be read clearly, or whose disclosures are difficult to understand. And every standard clause that has been stipulated by the business actor in a document or agreement that meets the provisions as referred to in paragraph (1) and paragraph (2) shall be declared null and void by law, with order that the business actor is obliged to adjust the standard clause which is contrary to the Consumer Protection Law.

Case example for Standard Clauses and Indonesia Consumer Protection Law:

Verdict on Judicial Review at the Indonesia Supreme Court Number 124 PK / Pdt. / 2007 Between PT. Securindo Packatama Indonesia (company) against Mrs. Anny R. Gultom and Mr. Hontas Tambunan.

The Judicial Review Decision rejected the application for judicial review submitted by PT. Securindo Packatama Indonesia based on the first level decision, appeal and cassation which have won Mrs. Anny R. Gultom and Mr. Hontas Tambunan against PT. Securindo Packatama Indonesia, in this case Mrs. Anny R. Gultom and Mr. Hontas Tambunan have lost 1 (one) unit car in a parking area managed by PT. Securindo Packatama Indonesia. Even though there is a standard clause in the parking area managed by PT. Securindo Packatama Indonesia which states: “the parking management party is not responsible for any loss, damage, accidents on vehicles or loss of items in the vehicle and / or that befell people who use the parking area of parking ​​management (parking)”, but PT. Securindo Packatama Indonesia still lost and was sentenced to pay material loss of Rp. 60,000,000 (sixty million rupiah) to Mrs. Anny R. Gultom and Mr. Hontas Tambunan for material compensation costs for the loss of 1 (one) unit of car.

For more information, please consult your problem with us.

by Dharma Na Gara

Summary of Articles of Laws in Indonesia Part 1.

Summary of Articles of Laws in Indonesia Part 1.

Undang-undang Dasar Negara Republik Indonesia Tahun 1945 (The Constitution of the Republic Indonesia year 1945)

Article 1

1. The country of Indonesia is a Unitary Country in the form of a Republic;
2. Sovereignty rests in the hands of the people and is exercised according to the constitution;
3. The Country of Indonesia is a country of law.

Article 4

1. The President of the Republic of Indonesia holds governmental powers according to the Constitution.
2. In performing his/her duties the President is assisted by one Vice President.

Article 24

1. Judicial power is an independent power to administer justice in order to uphold law and justice.
2. Judicial power is exercised by a Supreme Court and judicial bodies under it in the general court, religious courts, military courts, state administrative courts and by a Constitutional Court.
3. Other bodies whose functions are related to judicial powers are regulated in a law.

Article 26

1. Those who become citizens are the native Indonesian people and from other nations who have been legalized by law as citizens.
2. Residents are Indonesian citizens and foreigners who reside in Indonesia.
3. Matters concerning citizens and residents shall be regulated by law.

Article 27

1. All citizens shall have an equal position before the law and government and are obliged to uphold the law and government without exception.
2. Every citizen has the right to work and a living that is decent for humanity.
3. Every citizen has the right and obligation to participate in efforts to defend the state.

Article 28

Freedom of association and assembly, expressing thoughts orally and in writing and so on is stipulated by law.

Chapter XA **)

Human rights

Article 28 A

Everyone has the rights to live and has the rights to defend his/her live and life.

Article 28 B

1. Everyone has the rights to form a family and continue their offspring through a legal marriage.
2. Every child has the rights to live, grow and develop and has the protection rights from violence and discrimination.

Article 28 C

1. Everyone who has the rights to develop him/herself through the fulfillment of the necessities of life, has the right to receive education and to benefit from science and technology, art and culture, in order to improve the quality of his/her life and for the welfare of mankind.
2. Everyone has the rights to promote him/herself in the collective struggle for his rights to develop his community, nation and the country.

Article 28 D

1. Everyone has the rights to recognition of guarantees, protection and legal certainty that is just and equal treatment before the law.
2. Everyone has the rights to work and to receive fair and proper compensation and treatment in an employment relationship.
3. Every citizen has the rights to equal opportunities in government.
4. Everyone has the rights to citizenship status.

Article 28E

1. Everyone is free to embrace religion and worship according to his religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to live in the territory of the country and leave it, and to have the right to return.
2. Everyone has the rights to freedom of belief, to express thoughts and attitudes, according to their conscience.
3. Everyone has the rights to freedom of association, assembly and expression.

Article 28F

Everyone has the right to communicate and obtain information to develop their personal and social environment, and the rights to seek, obtain, possess, store, process and convey information using all available channels.

Article 28G

1. Everyone has the rights of protection of his / her personal, family, honor, dignity and property under his/her control, as well as to the feeling of security and protection from the threat of fear to do or not do something which constitutes human rights.
2. Everyone has the rights to be free from torture and treatment that degrading human dignity and has the right to obtain political asylum from other country.

Article 28H

1. Everyone has the rights to live in physical and spiritual prosperity, to have a place to live and to have a good and healthy living environment and the rights to obtain health services.
2. Everyone shall receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice.
3. Everyone has the rights to social security which enables him/her to complete development as a dignified human.
4. Everyone has the rights to own private property and these rights cannot be taken over arbitrarily by anyone.

Article 28I

1. The rights to life, the rights not to be tortured, the rights to freedom of thought and conscience, the rights to have a religion, the rights not to be enslaved, the rights to be recognized as a person before the law and the rights not to be prosecuted on the basis of retroactive law are human rights which cannot be reduced under any circumstances.
2. Everyone has the right to be free from discriminatory treatment on any basis and is entitled to protection against such discriminatory treatment.
3. The cultural identity and rights of traditional communities are respected in accordance with the times and civilizations.
4. The protection, promotion, enforcement and fulfillment of human rights are the responsibility of the country, especially the government.
5. To uphold and protect human rights in accordance with the principles of a democratic rule of law, the implementation of human rights is guaranteed, regulated and set forth in statutory regulations.

Article 28J

1. Everyone is obliged to respect the human rights of others in an orderly life in society, as a nation and as a country.
2. In exercising his/her rights and freedoms, every person is obliged to comply with the restrictions established by law with the sole purpose of guaranteeing recognition and respect for the rights of freedom of others and of fulfilling fair demands in accordance with considerations of moral and religious values, security and public order in a democratic society.

Article 30

1. Every citizen has the right and duty to participate in the defense and security efforts for the country.
2. The country’s defense and security efforts are carried out through the defense and security system of all the people by the Indonesian National Soldier and the Indonesian Police, as the main force, and the people as the supporting force.
3. The Indonesian National Soldier consists of the Army, Navy and Air Force as country’s instruments in charge of defending, protecting and maintaining the integrity and sovereignty of the country.
4. The Police of the Republic of Indonesia is an instrument of the country that maintains public order and security, has the duty to protect and serve the society and enforce the law.

CHAPTER XIII

EDUCATION AND CULTURE

Article 31

1. Every citizen has the rights for education.
2. Every citizen is obliged to attend basic education and the government is obliged to finance it.
3. The government shall endeavor and implement a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation as regulated by law.
4. The Country prioritizes the Education budget of at least twenty percent of the state revenue and expenditure budget as well as from the regional income and expenditure budget to meet the needs for the management of national education.
5. The government shall advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind.

Article 32

1. The country shall promote Indonesia’s national culture in the midst of world civilization by guaranteeing the freedom of the people in maintaining the development of cultural values.
2. The Country respects and maintains regional languages as national cultural assets.

NATIONAL ECONOMY AND SOCIAL WELFARE

Article 33

1. The economy is structured as a joint effort based on the principle of kinship.
2. Production branches which are important to the country and which affect the livelihood of the public shall be controlled by the state.
3. The land and water and natural resources contained therein shall be controlled by the country and used for the greatest prosperity of the people.
4. The national economy shall be implemented based on economic democracy with the principles of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance between progress and national economic unity.
5. Further provisions regarding the implementation of this article shall be regulated in law.

Article 34

1. The poor and neglected children are cared by the country.
2. The country develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity.
3. The country is responsible for the provision of adequate health service facilities and public service facilities.
4. Further provisions regarding the implementation of this article are regulated in law.

Human Rights in Indonesia has regulated in Undang-undang No. 39 tahun 1999 tentang Hak Asasi Manusia (Law Number 39 Year 1999 regarding Human Rights) which regulated as follows:

CHAPTER I

GENERAL DEFINITION

article 1

In this law what is meant by:

1. Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts that must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human value and dignity.
2. Basic human obligations are a set of obligations which if it isn’t implemented, then the realization and the upholding of human rights won’t be possible.
3. Discrimination is any limitation, harassment or exclusion that is directly or indirectly based on human differentiation on the basis of religion, ethnicity, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in reduction, deviation or elimination of recognition, implementation or the use of human rights and basic freedoms in life, both individually and collectively in the political, economic, legal, social, cultural and other aspects of life.
4. Torture is any act that is done on purpose, causing great pain or suffering, both physically and spiritually, to a person in order to obtain a confession or information from someone or from a third person, by punishing him/her for an act that the person has committed or suspected to be committed by someone or a third person, or threatening or coercing someone or a third person, or for any reason based on any form of discrimination, if the pain or suffering is caused by, at the instigation of, with the consent or knowledge of anyone and or public officials.
5. Child is any human being under 18 (eighteen) years old and hasn’t married, including children who are still in the womb if it is in his/her interest.
6. Violation of human rights is every act of a person or group of people, including the country apparatus, whether intentional or unintentional or negligence which unlawfully reduces, obstructs, limits and or removes the human rights of a person or group of people guaranteed by this law and do not receive or are worried that they will not obtain a fair and correct legal settlement, based on the applicable legal mechanism.
7. The National Commission on Human Rights, hereinafter referred to as Komnas HAM, is an independent institution that is at the same level as other country’s institutions which functions to carry out human rights studies, research, counseling, monitoring and mediation.

CHAPTER II

BASIC PRINCIPLES

Article 2

The Republic of Indonesia recognizes and upholds human rights and basic human freedoms as the rights which are naturally inherent to and inseparable from humans, which must be protected, respected and upheld for the sake of enhancing human dignity, welfare, blissfulness, intelligence and justice.

Article 3

1. Everyone is born free with the same and equal human dignity and is endowed with a mind and conscience to live in a society, nation and state in a spirit of brotherhood.
2. Everyone has the rights to the recognition, guarantee, protection and fair legal treatment and to receive legal certainty also equal treatment before the law.
3. Everyone has the rights to the protection of human rights and basic human freedoms, without discrimination.

Article 4

The rights to life, the rights not to be tortured, the rights to personal freedom, thought and conscience, the rights to religion, the rights not to be enslaved, the rights to be recognized as a person and equality before the law, and the rights not to be prosecuted on the basis of law which applies retroactively are rights human rights that cannot be reduced under any circumstances and by anyone.

Article 5

1. Everyone is recognized as an individual human being entitled to demand and receive equal treatment and protection in accordance with his human dignity before the law.
2. Everyone has the rights to fair assistance and protection from an objective and impartial court.
3. Everyone who belong to a vulnerable group of people has the rights to receive more treatment and protection with respect to their specifics.

Article 7

1. Everyone has the rights to use all legal remedies at national and international forums for all human rights violations which guaranteed by Indonesian law and international law regarding human rights that have accepted by the Republic of Indonesia.
2. The provisions of international law that have accepted by the Republic of Indonesia concerning human rights become national law.

Article 8

The protection, promotion, enforcement and fulfillment of human rights are primarily the responsibility of the government.

Article 9

1. Everyone has the rights to live, defend his/her life and improve his/her standard of living.
2. Everyone has the rights to live in peace, security, peace, cheerfully, physical and spiritual prosperity.
3. Everyone has the right to a good and healthy environment.

RIGHT TO JUSTICE

Article 17

Everyone, without discrimination, have the right to obtain justice by submitting applications, complaints, and lawsuits in criminal, civil and administrative cases as well as being tried through a trial process that is free and impartial, in accordance with the procedural law which guarantees an objective examination by an honest and fair judge to get a fair and correct decision.

Article 18

1. Every person who is arrested, detained and prosecuted because he is suspected of having committed a criminal act has the rights to be presumed innocent until proven guilty legally in a court session and given all legal guarantees necessary for his/her defense, in accordance with the provisions of laws and regulations.
2. Every person may not be prosecuted to be punished or sentenced to punishment unless based on a statutory regulation that have existed before the crime was committed.
3. Every time there is a change in statutory regulations, the most favorable provisions for the suspect shall apply.
4. Everyone who being examined has the rights to receive legal assistance from the time of the investigation until a court decision is legally binding.
5. Everyone cannot be prosecuted for the second time in the same case for an act which has obtained a court decision that has permanent legal force.

Article 19

1. No offense nor crime whatsoever is punishable by the penalty of confiscation of all property belonging to the offender.
2. No person on a court decision may be sentenced to imprisonment or confinement on the basis of the inability to fulfill an obligation in the debt and credit agreement.

Article 22

1. Everyone is free to embrace his/her own religion and to worship according to his/her religion and beliefs.
2. The State guarantees the freedom of everyone to embrace their respective religions and to worship according to their religion and beliefs.

Article 26

1. Everyone has the rights to have, obtain, change or maintain his/her citizenship status.
2. Everyone is free to choose his nationality and without discrimination, has the right to enjoy the rights that come from and inherent in his citizenship and must carry out his obligations as a citizen in accordance with the provisions of laws and regulations.

SECTION SIXTH

THE RIGHT TO FEEL SECURE

Article 28

1. Everyone has the rights to seek asylum to obtain political protection from other countries.
2. The rights as meant in paragraph (1) do not apply to those who commit non-political crimes or acts contrary to the aims and principles of the united nations.

Article 29

1. Everyone has the rights to protection of self-personal, family, honor, dignity and property.
2. Everyone has the rights to recognition everywhere as a personal human before the law.

Article 30

Everyone has the rights to a sense of safe, secure and protection against the threat of fear to do or not do something.

Article 31

1. The place of residence of any person may not be disturbed.
2. Stepping on or entering a compound of residence or entering a house against the will of the person living in it, is only permitted in matters stipulated by law.

Article 32

Freedom and confidentiality in correspondence, including communication through electronic means, must not be disturbed, except by order of a judge or other lawful authority in accordance with the provisions of laws and regulations.

Article 33

1. Everyone has the rights to be free from torture, punishment, cruelty or inhuman treatment neither degrading his/her human dignity.
2. Everyone has the rights to be free from enforced disappearance and deprivation of life.

Article 34

Everyone may not be arrested, exhibited, tortured, excommunicated, exiled or dumped arbitrarily.

Article 35

Everyone who has the rights to live in a peaceful, safe and secure society and state, which respects, protects and implements human rights and basic human obligations are regulated in this law.

THE RIGHT TO WELFARE

Article 36

1. Everyone has the rights to own property, individually or collectively with others for the development of him/herself, his/her family, the nation and the community in a way that does not violate the law.
2. No person may be confiscated from his/her property arbitrarily and illegally.
3. Property rights have a social function.

Article 41

1. Every citizen has the rights to social security necessary for a decent life and for his full personal development.
2. Everyone with disabilities, elderly people, pregnant women and children has the rights to receive special facilities and treatment.

Article 42

Every citizen who is elderly, physically and or mentally disabled has the rights to receive special care, education, training and assistance at the state’s expense, to ensure a decent life in accordance with his human dignity, increase self-confidence, and the ability to participate in the life of the community, nation and in the country.

WOMEN’S RIGHTS

Article 45

The rights of women in this law are human rights.

Article 47

A woman who marries a man of foreign nationality does not automatically follow her husband’s citizenship/nationality status but has the right to retain, change or regain her nationality/citizenship status.

Article 48

Women have the rights to obtain education and teaching at all types, levels and paths of education in accordance with predetermined requirements.

Article 49

• Women have the rights to choose, be elected, appointed in jobs, positions and professions in accordance with statutory requirements and regulations.
• Women have the rights to receive special protection in the implementation of their work or profession against things that can threaten their safety and or health with respect to women’s reproductive function.
• The special rights inherent in women due to their reproductive function are guaranteed and protected by law.

Article 50

An adult and / or married woman has the rights to carry out legal actions on her own, unless otherwise stipulated by her religious law.

Article 51

• A wife while in the marriage bond has the same rights and responsibilities as her husband for all matters relating to her married life, relations with her children and the right to own and manage joint assets.
• After the divorce, a woman has the same rights and responsibilities as her ex-husband for all matters relating to her children, by considering the best interests of the children.
• After the divorce, a woman has the same rights as her ex-husband over all matters relating to joint assets without reducing children’s rights, in accordance with the provisions of laws and regulations.

PART TEN

CHILDREN’S RIGHTS

Article 52

1. Every child has the rights of protection by parents, family, society and the country.
2. Children’s rights are human rights and for the sake of their interests, children’s rights are recognized and protected by law even from the time they are in the womb.

Article 53

1. Every child since in the womb has the rights to live, to maintain life and to improve his standard of living.
2. Since birth, every child is entitled to a name and citizenship status.

Article 54

Every child with physical and or mental disabilities has the rights to receive special care, education, training and assistance at the expense of the state, to ensure his life in accordance with human dignity, increase self-confidence and the ability to participate in the life of the community, nation and state.

Article 58

1. Every child has the right to obtain legal protection from all forms of physical or mental violence, neglect, ill-treatment and sexual harassment while in the care of his parents or guardians, or any other party responsible for the care of the child.
2. In the event that a parent, guardian or child caretaker who commits all forms of physical or mental abuse, neglect, ill-treatment, and sexual harassment including rape, and / or murder of a child which should be protected, it shall be subject to a higher penalty.

Article 60

1. Every child has the rights to receive education and teaching in the framework of personal development according to his/her interests, talents and level of intelligence.
2. Every child has the rights to seek, receive, and provide information according to his/her intellectual level and age for the sake of his/her own development as long as it is in accordance with the values of decency and propriety.

Article 64

Every child has the rights to get protection from economic exploitation activities and any work that endangers them, so that it can interfere with his/her education, health, physical, moral, social life, and mental spirituality.

Article 65

Every child has the rights to get protection from activities of sexual exploitation and abuse, kidnapping, child trafficking, and from various forms of abuse of narcotics, psychotropic substances and other addictive substances.

Article 66

1. Every child has the rights not to be subjected to mistreatment, torture or inhuman punishment.
2. The death penalty or life sentence cannot be imposed for the offender who is a child.
3. Every child has the rights not to be illegally deprived of his/her freedom.
4. The arrest, detention or imprisonment of children may only be carried out in accordance with the applicable law and can only be carried out as the last resort.
5. Every child who is deprived of his/her freedom has the rights to receive humane treatment and with due observance of personal development needs according to his age and must be separated from adults, except in his/her interest.
6. Every child who is deprived of his/her freedom has the rights to obtain legal aid or other assistance effectively at every stage of the applicable legal efforts.
7. Every child who is deprived of his/her freedom has the rights to defend him/herself and to receive justice in an objective and impartial Juvenile Court in a closed session to the public.

CHAPTER IV

BASIC HUMAN OBLIGATIONS

Article 67

Everyone who is in the territory of the Republic of Indonesia is obliged to comply with statutory regulations, unwritten laws and international law regarding human rights that have been accepted by the Republic of Indonesia.

Article 68

Every citizen is obliged to participate in efforts to defend the state in accordance with the provisions of laws and regulations.

Article 69

(1) Everyone is obliged to respect the human rights of others, morals, ethics and order of life in society, nation and in the country.

(2) Every human rights person creates a basic obligation and responsibility to respect the human rights of others mutually and it is the duty of the Government to respect, protect, enforce and promote them.

Article 70

In exercising their rights and freedoms, everyone is obliged to comply with the restrictions established by law with the aim of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of moral, security and public order in a democratic society.

CHAPTER V

GOVERNMENT OBLIGATIONS AND RESPONSIBILITIES

Article 71

The government is obliged and responsible for respecting, protecting, upholding and promoting human rights as regulated in this law, other laws and regulations and international human rights law accepted by the Republic of Indonesia.

Article 72

The obligations and responsibilities of the government as referred to in Article 71, include steps for effective implementation in the fields of law, politics, economy, social, culture, national defense and security and other fields.

by Dharma Na Gara

Period of Detention according to Indonesian Criminal Law Procedure (KUHAP)

Article 29 KUHAP:

(1) Excluded from the period of detention as referred to in Article 24, Article 25, Article 26, Article 27, and Article 28, for the purpose of examination, the detention of a suspect or defendant may be extended based on appropriate and unavoidable reasons because:

1. The suspect or defendant is suffering from a serious physical or mental disorder, proven by a doctor’s certificate, or
2. The case currently being investigated is punishable by imprisonment of nine years or more.

(2) The extension referred to in paragraph (1) shall be granted for a maximum of thirty days and in case the detention is still required, it can be extended again for a maximum of thirty days.

(3) The extension of detention mentioned is based on a request and an examination report at the level of:

1. Investigation and prosecution is given by The Head of the District Court;
2. Examination at The District Court is given by The Head of the High Court;
3. The appeal examination is given by The Supreme Court;
4. The Cassation examination is given by The Head of the Supreme Court.

(4) The use of authority for extension of detention by the official in paragraph (3) shall be carried out gradually and with full responsibility.

(5) The provisions as referred to in paragraph (2) do not preclude the possibility of the suspect or defendant being released from detention before the end of the detention period, if the interests of the examination have been fulfilled.

(6) After sixty days, even though the case has not been finish being investigated or has not been decided, the suspect or defendant must have been released from detention for the sake of law.

(7) With regard to the extension of detention as referred to in paragraph (2), the suspect or defendant can submit objections at the level of:

1. Investigation and prosecution to The Head of The High Court;
2. District Court Examinations and appeal of the High Court to The Head of the Supreme Court

For inquiries please consult with us.

by Dharma Na Gara

Domestic Crime/Violence

Domestic crime/violence is any act against someone, especially to women, which results in physical, sexual, psychological suffering or suffering and / or neglecting the household, including threats to commit acts, coercion, or illegal deprivation of liberty within the scope of the household. (Article 1 of Undang-undang Republik Indonesia Nomor 23  Tahun 2004 tentang Penghapusan Kekerasan dalam Rumah Tangga/Law of Republic Indonesia Number 23 Year 2004 regarding the Eradication of Domestic Violence).

Article 2 (1) The scope of household in this Law includes:

1. husband, wife and children;
2. people who have family relations with the person as referred to in letter a due to blood relations, marriage, breastfeeding, care and guardianship, who live in the household; and / or
3. the person who works helps in the household and lives in the household.

Article 1 number 4: Protection is any effort aimed at providing a sense of security to the victim by the family, advocates, social institutions, the police, prosecutors, courts, or other parties either temporarily or based on court stipulation.

Article 5 Everyone is prohibited from committing domestic crime against people within the scope of their household by:

1. physical violence;
2. psychic violence;
3. sexual violence; or
4. neglecting the household.

Article 6 Physical violence as referred to in Article 5 letter a is an act that causes pain, fall to ill or seriously injured.

Article 7 Psychic violence as referred to in Article 5 letter b is an act that causes fear, loss of self-confidence, loss of ability to act, feeling of helplessness, and / or severe psychological suffering in a person.

Article 8 Sexual violence as referred to in Article 5 letter c includes:

1. forcing sexual intercourse carried out on a person who lives within the scope of the household;
2. forcing sexual intercourse to one person within the scope of his household with another person for commercial and / or specific purposes.

Article 9 (1) Every person is prohibited from neglecting people within the scope of his household, whereas according to the law that applies to him or because of an approval or agreement he is obliged to provide life, nursing or maintenance to that person. (2) Abandonment as referred to in paragraph (1) shall also apply to any person who causes economic dependence by limiting and / or prohibiting proper work in or outside the home so that the victim is under the control of that person.

To find out more about this, consult your problem with us.