Surveillance Function in Law Enforcement in Indonesia: Integrated Criminal Justice System Perspective

Ni Nengah Adiyaryani1, Kadek Agus Sudiarawan2

1Faculty of Law, Udayana University, E-mail: [email protected] 2 Faculty of Law, Udayana University, E-mail : [email protected]

Info Article

Received: 18th April 2021

Accepted: 25th September 2021

Published: 30th September 2021

Keywords:

Surveillance; Law Enforcement;

Integrated Criminal Justuce

System

Corresponding Author:

Ni Nengah Adiyaryani,

E-mail:

[email protected]

DOI:

10.24843/JMHU.2021.v10.i03.p04


Abstract

This study aims to determine the role of law enforcement officer in integrated criminal justice system and to find the concept of surveillance patterns that need to be established for law enforcement officer for the future integrated criminal justice system (ius constituendum). This is normative legal research using a statutory approach and a conceptual approach. Analysis using qualitative methods and the results are presented in descriptive analysis report. The results show that the integrated criminal justice system did not have an integrated surveillance system in a special form that was implemented by the law enforcement officers and its society yet. It still applying an internal and conventional surveillance pattern. Hence, empowering the existing surveillance pattern and creating an integrated surveillance pattern could be a solution to overcome the weakness of the surveillance system in the Integrated Criminal Justice System nowadays which caused by the fragmented surveillance system without any external-cross institutional surveillance.

  • I.    Introduction

Indonesia is a country based on the rule of law (rechstaat), which is clearly state in Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia (hereinafter the Constitution of Indonesia). The concept of a state based on the rule of law is aimed to prevent any arbitrarily act by the State or the government.1

According to a well-known Latin phrase “Fīat jūstitia ruat cælum”, meaning “Let justice be done through the heavens fall”2, which can be interpreted that justice must be realized regardless of consequences. In criminal law enforcement, in particular, the State has established and conceptualized a form of law enforcement with a model of Integrated Criminal Justice System (hereinafter ICJS) with a pattern including its substance, structure and legal culture.

The perspective of the law enforcement system has been patterned in an integrated manner, but in its performance all elements of the system still show their respective weakness. In the substance element which includes all statutory elements, both written

and unwritten forms, it is still often and contains a lot of disharmony of legal norms from the law and regulation, such as conflicted norm, vague norm, and vacuum of norm. Besides, in the structural or institutional system elements, such as those involving law enforcement as the function of the ICJS, the most prominent aspect as a weakness in the functioning of the institution lies in the function of control or surveillance function of the ICJS.

It seems that currently the form of surveillance from each law enforcement institution is still focusing on its internal and fragmented. In fact, the aim of the ICJS is to provide the same vision and goals to all of the law enforcement officers in order to reduce crime. In connection with the existence of the same purpose of the ICJS, it is important to have an intergrated form of surveillance.

Conceptually, the meaning of law enforcement lies in the activity of harmonizing the connection of values which are described in the meaningful values and manifest in principles and attitudes as a series of defining the final stage of value to create and maintain community peace and order.3 In order to combat crime, it is necessary to revitalize its surveillance role, namely to interfere with matter relating to judicial technicalities such as the execution of decisions which are basically the authority of the Supreme Court.4

Several non-Governemnt Organization can also be formed in order to strengthen judicial accountability in society, such as ICW, TI and MaPPI FH UI. Community participation in monitoring the performance of law enforcers can also be carried out to help eradicate corruption by building a critical mass of anti-corruption, especially carried out by NGOs as a social movement throughout society to strengthen democratic values and institutions and civil supremacy.5

Furthermore, the public accountability principles for court decision can also be strengthened by the pubic as a participatory in the surveillance of the ICJS in accordance with the spirit of transparency and public accountability. In fact, in this era of information and technology, the pattern of public surveillance of law enforcement can easily be done and more effective with the support of information technology.6

Internal commission surveillance has been formed with the hope of guarding the law enforcement process in a professional and fair manner, as well as encouraging institutional reform to be more accountable, transparent, and in accordance with the principles of good governance. The authority of the supervisory commissions for implementing the Criminal Justice System (hereinafter CJS) can be increased or expanded. Through the revision of the Law, commissions such as the Prosecutor’s Commission (also known as Komjak or Komisi Kejaksaan) can be more clearly

regulated in regard to their position and authority, which so far have only been regulated based on a Presidential Regulation.7

Based on the explanation abovementioned, it is importanct to examine in depth the role of law enforcement officers in the ICJS and the concept of surveillance patterns that need to be established for law enforcement officials for the future perspective (ius constituendum) in ICJS.

In 2018, Waskito conducted a similar research entitled “Implementasi Sistem Peradilan Pidana Dalam Perspektif Integrasi” which examine the ideal system and approach to the implementation of an integral criminal justice system so that an optimal performance of the CJS can be optimally enforced in criminal law.8 In 2007, Ali Mahrus conducted a similar research entitled “Sistem Peradilan Pidana Progresif: Alternatif dalam Penegakan Hukum Pidana”, which examine the idea of a Progressive Criminal Justice System which is the antithesis of the characteristics of the CJS is adopted in the enforcement and surveillance of the CJS in Indonesia.9 Both studies have differences and novelty with this legal research, which specifically seeks to dissect the role of law enforcement officers in ICJS and find out the concept of surveillance patterns that need to be established for law enforcement officers for a future perspective (ius constituendum) in ICJS.

The writing aims to identify, analyze, and elaborate the role of law enforcement officers in the Integrated Criminal Justice System and the concept of surveillance patterns that need to be established for law enforcement officers for a future perspective (ius constituendum) in an integrated criminal justice system (ICJS). In order to achieve the purpose of writing, first, will be present the role of law enforcement officers in the ICJS. Second, the concept of surveillance patterns that need to be established for law enforcement officers in the future (ius constituendum).

  • 2.    Research Method

This is a normative legal research. According to Soerjono Soekanto, “normative legal research shall be meaning any legal research conducted by examining library materials or secondary data, which also be known as literature research”.10 The approach used in this legal research includes a statutory approach and a conceptual approach. The results of the study were analyzed qualitatively and presented in the form of a descriptive analysis report.

  • 3.    Result and Discussion

    • 3.1.    The Role of Law Enforcement Officers in Integrated Criminal Justice System

The law enforcement which is carried out by the government through its law enforcement officers with the purpose of ensuring legal certainty, legal protection and order in society. In the current era of globalization, law is not merely about regulating society but creating peace. Bearing in mind that the content of the provisions of Indonesia Law Number 8 of 1981 concerning the Criminal Procedure (hereinafter KUHAP) claimed that Indonesia has implied the ICJS.11 The ICJS uses four components of law enforcements officers, namely the police, prosecutors, courts and prisons.12

The government’s effort to form an ideal “ICJS” in the CJS demands integration, but it is not easy to achieved if there are still substantial weakness in the CJS. If this continues to be carried out, it will not be carried optimally and will turn out in to a “Is Not a System” or oftenly be known as a complete failure.

Criminal justice has been known as an important part of the effort in combating crimes in criminal law, which works in an integratd criminal law enforcement system with an emphasis on integrated system, thus it is commonly known as the Criminal Justice System. This integration is intended so that the judicial process runs effectively and efficiently, mutually supporting law enforcement officers in finding laws and implementing the right law and regulation to ensure the satisfaction of justice seekers, namely realizing justice in awareness of the reality of public law.

Criminal justice, as an important part of the effort to combat crimes by means of criminal law, works in an integrated criminal law enforcement system, with an emphasis on integrated systems, so it is commonly called the Criminal Justice System. This integration is intended so that the judicial process runs effectively and efficiently, mutually supporting law enforcers in finding laws and implementing the right ones to ensure the satisfaction of justice seekers, namely increasing the awareness of the society in terms of law and its enforcement. 13

The criminal justice system is oftenly defined as a court system that administers justice on behalf of the State of as a mechanism for resolving a case or dispute. Hence, criminal justice only concern about the structural aspect (namely “system of court” as an institution) and only concern about the aspect of the power to adjudicate or resolve case (administration justice or mechanism for the resolution of disputes). Criminal justice as a system includes two aspects, namely the aspect of institutional structure that involves several law enforcement agencies and the value aspect, namely the principles of criminal law enforcement which is covered in the due process of law. The interaction between law enforcement officers in the judicial process mechanism includes the chain of authority of the criminal justice system. Conceptually, the meaning of law enforcement lies in the activity of harmonizing the connection of values which are described in the meaningful values and manifest in principles and

attitudes as a series of defining the final stage of value to create and maintain community peace and order in society.14

The substance of value is a philosophical foundation in order to strengthen the principles of due process of law, besides the concept of law enfocement which emphasizes more on a rigid and procedural system approach, pursues goals but ignore human aspects and legal objects, namely realizing justice. Law is a tool used to uphold human values, not only to fulfill rigid legal procedures, but to uphold human values, because law is formed to fulfill human needs.15

Enforcement of criminal law, which is carried out based on the concept of law enforcement is the same as the enforcement of regulation, providing opportunities for abuse of power, namely arbitrary process of law. To improve the quality of law enforcement, thus it is oriented towards the spirit of due process of law, it is necessary to carry out criminal justice reform. This can be started with the formulation and reconceptualization of “judicial power” and “design of application of judicial power”. The power of the judiciary in the field of criminal law is not only manifested in the “power to judge”, but is manifested or implemented in the entire criminal justice process, namely the stages of investigation, prosecution, court proceedings and implementation of court decision. The entire criminal justice process involving law enforcement officers is commonly known as the “integrated criminal justice system”.

According to Barda Nawawi Arief,16 there are two possibilities that might be taken to overcome the legal weakness in regulating the judicial power. First, by formulating new law and regulations or revising the existing statutory provisions by confirming which officials are seen as “controlling officials”. Second, the void or vacuum of norm can be fulfilled by jurisprudence. In the first condition, the Supreme Court can be designated as the “controlling officer” as stipulated in the provisions of Article 24 of Constitusion of Indonesia, which mainly determines that the function of Judicial Power is carried out by the Supreme Court. The notion of “judicial power” should not only be defined as “the power to judge”, but also as “the power to enforce laws and regulations”, thus the Supreme Court not only functions to supervise law enfocement by court bodies, but also oversees the entire process of law enforcement which carried out starting from the process of investigation, prosecution, until a court decision is executed.

  • 3.1.1.    Law Enforcement Based on the Theoretical Criteria of the Criminal Justice System

Law enforcement is a necessity carried out by the State in order to protect its citizens, since criminal acts are an urgent community problem to be resolved in order to achieve a harmonious, orderly, and peaceful life as a form of a peaceful society.17

The Indonesian Government strives for law enforcement with an integrated criminal justice system as for the sub-system of the criminal justice system, namely the Police, Prosecutors, Courts and Correctional Institution are expected to work in accordance and be able to form an “Integrated Criminal Justice System”, if the integration in the system works cannot be done, it is estimated that there will be 3 losses, as follows:

  • 1.    Difficulty in self-assessing the success or failure of each institution;

  • 2.    Difficulty in solving the institution’s main problem;

  • 3.    Since the responsibilities of each are often not clearly divided, each institution does not really see the overall effectiveness of the CJS.18

Bearing in mind that the content of the provisions of KUHAP, the ICJS uses four components of law enforcements officers, namely the police, prosecutors, courts and correctional institution.19 Furthermore, after the enactment of Law Number 18 of 2003 concerning Advocates, Advocate also be acknowledged as the law enforcement officer. Hence, there is an additional institution in the CJS to serve and function in law enforcement. Their respective functions are different, but they also coordinate in an integrated manner to carry out the CJS’s goal of eradicating crime. Thus, through the penal policy as the main concern.

It is in accordance with the concept of Indonesia as a State based on the rule of law as stipulated in Article 1 paragraph (3) of the Constitution of Indonesia. Indonesia highly upholds human rights and embodies a sense of justice in the community. Indonesia aims to provide justice to all its citizen in in accordance with the practice of the 5th Principle of Pancasila, which stated “Social justice for all Indonesian people”. According to Abdul Hakim Garuda Nusantara, however, the law in Indonesia must refer to the ideals of the nation, namely the establishment of a constitutional state that is democratic and socially just.20

In realizing a just and prosperous Indonesian state, it must be balanced with an adequate law enforcement system, because law enforcement is a process or stage towards justifying and structuring the judicial system, therefore the law enforcement process must be based on the basic values of Pancasila and the Constitution of Indonesia.21

The judiciary in Indonesia is still vulnerable to influences outside the life of the law, such as the law enforcement being contaminated by political, economic, social, and cultural influences. Thus, there is a perception and law enforcement in Indonesia is still not in accordance with the principle of justice. 22 Justice referred as a form of proportional justice and corrective justice to the administration of ICJS.

  • 3.1.2.    Independence and Impartiality of Law Enforcement Officers

The independence and impartiality of law enforcement officers in the judiciary can be exercised and free from interference by legislative and executive powers, but they cannot withstand the temptation of abundant material and money.23 This condition reduces the independence of judiciary and becoming a practice of legal mafia with the modus operandi of illegal abuse of public power.

Law enforcement should lead to the creation of justice in society as mandated by the Constitution of Indonesia. This idea requires surveillance of legal institution that are specifically enforce law as the supreme commander without being influenced by any power or force.24 In order to strengthen judicial accountability in society, several NGOs, such as ICW, TII, MAKKI, and several universities, conduct public examinations of court decision that indicate judicial mafia practices. The partipation of community in monitoring the performance of law enforcement officers in eradicating crime can be carried out by building a critical mass concerning anti-crime, especially carried out by NGOs as a social movement throughout society to strengthen democratic values and institutions and the rule of law.25

Strengthening the principle of public accountability for law enforcement can be carried out by the public as a participatory in the surveillance of the criminal justice system in accordance with the spirit of transparency and public accountability. Furthermore, the public accountability principles for court decision can also be strengthened by the pubic as a participatory in the surveillance of the ICJS in accordance with the spirit of transparency and public accountability. In fact, in this era of information and technology, the pattern of public surveillance of law enforcement can easily be done and more effective with the support of information technology as well as the mass media.26

The surveillance of law enforcement with an integrated pattern will be more effective, compare to the internal-conventional forms of surveillance. Sometimes, the “ewuh-pakewuh27 between superiors and subordinates is an obstacle in applying strict sanctions. If the surveillance of the CJS is formed under a single unit, it will be able to run its function effectively and efficiently in law enforcement, especially in the CJS.

  • 3.2.    The Future Concept of Surveillance Patterns (lus Constituendum) in Integrated Criminal Justice System

According to H. Hadari Nawawi, surveillance in general has been classified into several types or patterns that have been applied in the leife of implementation of State

functions. 28 Thus, the implementation of surveillance in the administration or management of the State or government is very broad, therefore it is necessary to distinguish the types of surveillance, namely:

  • 1.    Functional surveillance, which is carried out by institution assigned to carry out surveillance such as BPKP, Irjenbang, Inspector General of Departments and other functional surveillance institution in Non-Departmental Government Institution or other Government Institutions;

  • 2.    Political surveillance, which is carried out by the House of Representative (DPR);

  • 3.    Surveillance carried out by the Audit Board (BPK) as External Supervisor – Executive;

  • 4.    Social surveillance, carried out by the mass media, individual mass organizations and members of the public in general;

  • 5.    Inherent surveillance, carried out by a direct superior to his subordinates. 29

This classification creates a dominant impression of an internal surveillance, which limited in the scope of its operational movement within its internal institutional between superior and subordinates, fragmented in internal subordination, which is difficult to be accessed by the other institution.

As for the future concept of surveillance patterns (ius constituendum) in Integrated Criminal Justice System which can be formed shall includes:

  • 1.    Empower the existing surveillance pattern

For all law enforcement institution, such as the Police, Prosecutors, Courts, and Correctional Institutionl and Advocates as the actors of the ICJS, it is necessary to revise the rule and regulation concerning the surveillance pattern, as well as formulating a new surveillance pattern which can be used to complete and optimalize the surveillance performance itself.

It can be carried out by coordinating, monitoring, evaluating and stipulating imposing sanctions in order to enforce the CJS. Hence, the integrated surveillance institution is not merely supervising law enforcement officers, but it also plays a huge role in finding irregularities that have been committed and later imposing final sanctions to those who violate any law and regulations.

Therefore, this integrated surveillance institution needs to be independent in carrying out its role, impartiality towards certain institutions or to any party who dare to take a firm and consistent stance in imposing sanction regardless of consequences.

  • 2.    Formulating an Integrated Surveillance Pattern

In order to achieve legal certainty and justice in the supremacy of law, especially in the scope of the CJS, it is deemed necessary to establish an Intergrated Surveillance Pattern by involving several related law enforcement institutions assisted by certain groups who are capable of carrying out the implementation. Surveillance in the field of the judicial ranks who carry out the function of the law enforcement

process within the scope of the Integrated Criminal Court, which is formed in formal institution such as commissions established through the provisions of laws and regulations to demonstrate the existence of legal certainty in the ICJS.

Institutions that are formed as commission mean that in this forum there is a group of people from the professional disciplines of the judiciary in a broad sense along with parties from multi-disciplinary and multi-functional professional backgrounds. However, they have a mission to uphold the rule of law, hence all parties in the surveillance commission institutuion have the same objective, namely to supervise law enforcement officers in carrying out their obligation to control the mechanism of the ICJS as well as carrying out the noble duty of enforcing legal certainty and justice.

Therefore, the institution within the law enforcement officers as well as overseeing the administration of justice or criminal procedure, is known as the Integrated Criminal Justice System, since it focuses on one pattern with a single forum in the field of surveillance. This commission can be known as “Integrated Judiciary Supervisory Commission or Komisi Pengawas Peradilan Terpadu (KPPT)”

Hence, with the idea of forming an Integrated Judiciary Supervisory Commission or KPPT, it is higly hope can bring a great impact to the Indonesian CJS, which has so far no been clearly regulated in the Criminal Procedure Code, even the surveillance of each Law Enforcement Institution, which has a compartmentalized pattern of internal supervision. It also hoped that this idea will eliminate the impression of unequality in terms of surveillance as well as eliminate the legal phenomenon of obstrucrity or void in regulatory norms in the field of surveillance itself. The idea of an integrated surveillance pattern within the scope of the ICJS can be categorized as the ius constituendum of criminal policy in upholding the supremacy of law in order to embody the legal objectives that accumulate the benefit, legal certainty, and justice that has been dreamed by everyone who seeks justice or justiciabellen.

4. Conclusion

The Integrated Criminal Justice System in Indonesia has not been initiated or formed in an integrated manner in a special form, which is support by all components of law enforcement officers and elements of society. Each law enforcement officers or institution still has a sectoral egoism paradigm by having a form of internal surveillance in the form of direct commissions to control the performance of each individual, which contains weaknesses, such as the protection given by superior towards its subordinates if he or she does deviations from duties. In order to manifest the legal objective that accumulate benefits, legal certainty and justice that has been dreamed by everyone who seeks justice or justiciabellen, an integrated surveillance patterns needs to be formed in a commission who can carry out an anti-law mafia surveillance task force, whose members are recruited from all components of law enforcement as well as involving community representatives such as NGOs (nongovernmental organization).

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