LIABILITY IN THE TRIAL JUDGE
BY: H. SANTHOS WACHJOE P, SH.MH
Indonesia as a State law should certainly strive to make the law as a commander in the country's development. According to Parsons, the main function of a legal system that is integrative means to reduce the elements of potential conflict in society and to smooth the process of social interaction. By complying with the legal system, the system of social interaction will function properly, without the possibility turned into overt or covert conflict is chronic. For the legal system can run integrative function effectively, according to Parsons, there are four issues that must be solved first, namely:
• Legitimacy, which will be the basis for the observance of the rules;
• Interpretations, which will comes to the determination of the rights and obligations of subjects, through the process of laying down certain rules;
• The sanctions, which confirms sanctions if that would arise if there is compliance and what sanctions will arise if there is binding to the rule, and also confirms who will impose sanctions;
• Jurisdiction, which sets the lines of authority ruling upholding the norms of law;
• Viewed from the perspective of the effectiveness of integrative function Parsons apparently legal system in Indonesia is still facing serious problems both in terms of aspects of legitimacy, interpretation, penalties and jurisdiction. From the aspect of legitimacy, until now the executive, legislative, and judicial branches of government are still experiencing a crisis of legitimacy. Although the executive and legislative bodies should be formed by the process of democratic elections in 2004 is expected to boost the legitimacy of both institutions, but in reality the executive and legislative institutions democratically elected does not necessarily raise the legitimacy of the two institutions. People are still waiting for evidence the performance of the executive and legislative practice. The level of legitimacy of the executive and legislative institutions depends on the ability of both institutions in meeting the aspirations of the people and address the real problems facing our nation in order to get out of the crisis towards a better life in the future. While the judiciary that occupies a central position in law enforcement authority experienced a process of reduction, because the decisions away from a sense of justice and are not restricted to the practice of so-called "judicial mafia". In addition judiciary experiencing the pressures of the political forces and the intervention of other powers. While the independence of the judiciary is in the process of growth with various barriers in the field of human resources and supporting facilities.
• .From the aspect of interpretation is necessary to reorient so that the rights of the people as subjects put forward, so that the people really become stakeholders sovereign. Respect for the rights of the people in a democratic society not only be interpreted in the political process is the General Elections, but also economic and social rights and others who poured into public policy in favor of the people. Thus the people's participation in the implementation of public policies to fulfill its obligations get motivated, including in implementing the rule of law.
• From the aspect of sanctions is very important to do now is certainty competent institutions to apply sanctions, be consistent, fair and firm indiscriminately. During this form of punishment more sanctions imposed for petty violations of the law, while those classified as high profile as if untouched by the sanctions because it has a relation, the remnants of influence and abundant funds to "regulate" the case that they are dealing with. Various ways they can do to escape from the shackles of punishment, so that justice should apply for everyone indiscriminately reduced meaning. Similarly, granting rewards, awards as if they belong to the people who have a certain status, rather than to those who do not have high status, even though the real achievement for the environment and the people.
• From the aspect of jurisdiction often limit the authority of various institutions is not very clear or even overlap. This situation is further aggravated by the development of sectoral egoism and lack of coordination, making it less of a problem fro dilontar from one institution to another, with no certainty of completion.
Completion of each case filed by either criminal or civil, demanding precision and accuracy in consideration of Judge on trial. Therefore, every judge must know clearly menganai things to do during the trial, which is nothing but an obligation of every judge. Understanding each judge will obligation is an absolute must-have in supporting tasks kedinasannya, primarily during the trial.
B. ISSUES
From the above description it would be Dirik a problem, namely what is the duty of the judge in the trial?
C. LIABILITY IN TRIAL JUDGE
H.M. Ali Mansur in his Miscellaneous Legal Issues (Problems Agreement, Consumer and Pembaharuaan Law), states that "In a State of Law, the rule of LAW should obtain the proper place, the function of law in material sense which seeks to provide protection for people with memperlaakukan every citizen has the right to work and a decent living for humanity and provide top notch law for everyone. "
Law is a system that is important in the implementation of a series of institutional power. The law will become meaningless if human behavior is influenced by the law and if the public is to use the law to obey his behavior. The law itself is divided into several areas, namely criminal law or public law, civil law or personal law, and procedural law, constitutional law the State, the law of State administration or administrative law state, international law, customary law, Islamic law, agrarian law, business law, and environmental law. Of these laws each have the same goal, which is aimed at ensuring legal certainty in the community and the law must also be based on justice, the principles of justice from the public.
Law Enforcement process is essentially a process to execute a legal product in the form of legislation, both the Act and the regulations perudangan underneath. An Act will not be able to run properly if Enforcement law is the officials who did not understand the essence of the Act being operated. So that, making the need for law enforcement authorities are really qualified in carrying out his duties.
Law enforcement is the center of the whole "life events" law from the planning law, law-making, law enforcement and legal evaluation. Law enforcement is essentially an interaction between the various human behaviors that represent different interests within the framework of the rules that have been agreed. Therefore, law enforcement can not be solely considered as the process of implementing the law as the opinion of the legalistic.
Law enforcement should be consistent so that people understand, where and where NOT LAW LAW. As part of the process of social, enforcement of legal certainty it rests on two (2) main components, namely:
1. The law must be able to provide certainty in orientation to the community. In this case the known certainty; namely Certitudo orientation or Orientierungssicherheit, that people understand, how the behavior expected by others thereof and the response is what they can expect from others it was to the behavior;
2. Certainty in the application of the law by law enforcement, Do not let this happen that once a legal provision is implemented, but other times the same requirements are not implemented. There is a principle which is Securitas or Realisierungssherheit is the principle of legal certainty reality that allows people to rely on the calculations, that the norms in force is respected and implemented, court decisions sincerely held and agreements are adhered to.
In Law Number 48 Year 2009 regarding Judicial Power has mentioned in Article 1 paragraph 1 that "Judicial Power is the power of a sovereign state to conduct judiciary to uphold law and justice based on Pancasila and the Constitution of the Republic of Indonesia Year 1945, for the sake of the implementation of the State Law of the Republic of Indonesia "and Article 1 paragraph 2, which states" the Supreme Court is the judicial power executors as defined in the Basic Law of the Republic of Indonesia Year 1945 ".
The judge, as one of the main elements in the Supreme Court and the Courts below, will have a very important position in the law enforcement process, especially during the trial. Etymologically or in general, Bambang Waluyo, SH stated that the reference to judge is an organ of the court who understand the law, that his back had been placed obligations and responsibilities that the law and justice is enforced, either by the written or unwritten (hearing a case filed on the grounds that the law does not or less obviously), and no single contrary to the principle of joint and justice based on God Almighty.
Article 1 paragraph 5 of Law No. 48 Year 2009 on Judicial Power said, "The judge is a judge on the Supreme Court and judges in the judicial bodies underneath it in the public courts, religious courts, military courts, administrative courts , and judges in a special court within the judicial environment ". And in Article 1 paragraph 2 of Law No. 49 Year 2009 regarding the General Court stated, "The judge is the judge in the lower court and the high court judges". This is confirmed in Article 1 item 8 Code of Criminal Procedure which states that judges are judicial officers who are authorized by state law to prosecute.
Profession judge the legal profession, because it is essentially a service to people and communities in the field of law. Therefore, judges are required to have morality and high responsibility, all of which are outlined in the basic principles of the code of conduct of judges, among others:
• The principle of freedom which includes freedom of the judiciary is a prerequisite for the rule of law and a fundamental guarantee on a fair trial. Therefore, a judge shall uphold and exemplify judicial independence in both the concerning aspects of individual and institutional aspects;
• The principle of impartiality, the principle is very important for proper execution of justice. This not only applies to the decision itself but also to the process in which the decision was dibuatan;
• Integrity Principles, namely the principle of integrity is essential for the proper administration of justice in the quality of the carrier of the profession;
• Principles of Civility, this principle is very important in the implementation of all activities of a Judge;
• Principle of Equality, that these principles ensure equal treatment of all before the courts is essential to the administration of justice as it should be;
• Principle Competence and obedience, which is the principle which is a prerequisite to the administration of justice as it should be.
The task of a judge is not an easy task, given that the fate of a person or a seeker of justice depends on the Judge's decision. Signs execution of tasks judge in melakasanakan duties enshrined in Article 5 (1) of Law No. 48 of 2009 which states, "Justice and judges of the constitution shall explore, and understand the values of law and a sense of justice in society ". Especially for Justice in the Courts general, it is affirmed in the provisions of Article 68A of Act Number 49 of 2009 on General Courts, which states:
(1) In examining and deciding cases, judges should be responsible for the establishment and the decision he made;
(2) The determination and decision referred to in paragraph (1) shall contain the legal considerations of judges based on the reasons and legal basis is appropriate and correct.
In the field of criminal law judges in charge of implementing anything in concreto there by a defendant to do an act in violation of criminal law. To set this up by the judge to be expressed in the Criminal Law which has been violated.
In doing so, the judge has the freedom to make decisions free from the influence of government and other influences, he became the foundation and hope for justice seekers. Besides, it has a double duty, on the one hand is the official responsible for applying the law (Izhar al-law) against the case concrete good of the laws written and unwritten, on the other hand as the law enforcement and justice are required to be able to explore, understand, values in society so that the macro is required to understand the sense of the law who live in the community.
In the performance of their duties, essentially the task of the judge is divided into 3 (three), namely:
1) Mengkonstatir is stated in the Minutes of Hearing and in case his seat on the judge's decision. Mengkonstatir is done by first looking at the subject matter and then admit or justify the events proposed, but previously had held the proof in advance;
2) Mengkualifisir are set forth in the legal reasoning in the decision letter. This is an assessment of the events of the evidence, facts or events of legal facts and find legal;
3) Mengkonstituir is stated in the decision letter. Phase three is the determination of the law or a constitutional provision against the case.
By Normative, tasks Judges governed by Law No. 4 Year 2004 on Judicial Power, as amended by Act No. 48 of 2009 on Judicial Power, among others:
1. Decides according to the law with no respecter of persons (Article 4 paragraph (1) of Law No. 48 of 2009);
2. Helping those seeking justice and make great effort mengetasi all obstacles and barriers for the creation of justice that is simple, fast and inexpensive (Article 4 (2) of Law No. 48 of 2009);
3. Judges and constitutional judges shall explore, and understand the values of law and justice in the society (article 5 paragraph (1) of Law No. 48 of 2009);
4. There should not refuse to examine and adjudicate a case filed on the grounds that the law does not exist or is less clear, but obliged to examine and hear (Article 10, paragraph (1) of Law No. 48 of 2009);
5. The Court shall provide assistance requested in the interests of justice (article 15 of Law No. 48 of 2009);
6. In the trial of deliberation, each judge shall deliver judgment or written opinion on the case that is being examined and become an integral part of the decision (Article 14 paragraph (2) of Law No. 48 of 2009);
7. The judge shall explore, and understand pas-legal values and sense of justice in the society (article 5 paragraph (1) of Law No. 48 of 2009).
Although normatively a judge may not refuse to hear a case, but the Act also requires a judge to resign in order to hear a case, ie as stipulated in article 17 paragraph (3), (4) and (5) Law Number 48 Year 2009 regarding Judicial Power which states:
(3) A judge shall resign from the trial if bound related by blood or marriage to the third degree, or husband or wife relationship though has been divorced, with the chairman, one of the member judges, prosecutors, lawyers, or clerks;
(4) The Chairman of the panel, judges, prosecutors, or the clerk of the court shall resign if bound related by blood or marriage to the third degree, or husband or wife relationship despite having been divorced by the parties prosecuted or advocate;
(5) A judge or court clerk shall resign from the trial if he has an interest, directly or indirectly to the case being examined, either on its own volition or at the request of litigants.
This was reaffirmed in Law No. 8 of 1981 on the Law on Criminal Proceedings, particularly for Judges at the District Court, High Court and also to the Chief Justice, are set out in Article 157, which states:
(1) A judge shall resign from prosecuting a particular case if he is bound related by blood or marriage to the third degree, spouses relationship despite being divorced by the presiding judge trial, one judge member, prosecutor or court clerk;
(2) The Chief Judge hearing, judges, public prosecutors or the court clerk shall mangundurkan himself from handling the case when it is attached related by blood or marriage to the third degree or spouse relationship despite being divorced by the accused or legal counsel;
(3) If dipanuhi katentuan paragraph (1) and (2) those who mengundurkin themselves should be replaced and, if not met or are not replaced, while the case has been terminated, the case shall be tried immediately refilled with another arrangement.
Violation of the above provisions, has been regulated in article 17, paragraph (6) and (7) of Law No. 48 of 2009 which states:
(6) In the event of violation of the provisions referred to in paragraph (5), the decision declared invalid and against the judge or clerk of the concerned subject to administrative sanctions or convicted in accordance with the provisions of the legislation;
(7) The case referred to in paragraph (5) and (6) is checked back in with a different composition of the panel of judges.
From the above description, it is actually a judge in performing his duties have professional responsibility, which can be divided into three types, namely:
a) moral responsibility, the responsibility in accordance with the values and norms that apply within the professional life is concerned (the judge), both personal and institutional capacity for an institution which is a forum of the judges concerned;
b) Responsibilities of the law, is the responsibility to be borne by the judge to be able to carry out their duties without violating the safeguards established;
c) The responsibility of the technical professions, is a requirement for judges to carry out their duties in a professional manner in accordance with the applicable technical criteria in the areas of professions are concerned, both general and specific provision in the institution.
A judge is also required to be a good listener, or in the language of the law is called Audi et Alteram Partem which is a phrase in Latin, which was: "Listen to the other side." This sentence is a phrase in the legal field in order to maintain fairness. This attitude aims to make a trial run balanced and principles of Audi et Alteram Partem have meaning "Listen to the two sides," or listen to the opinions or arguments also other parties before dropping a decision so that justice can run balanced. Azas Audi et Lateram Partem or also known as the principle of balance in the Law of Criminal Procedure, a judge is obliged to listen to the defense of the suspected or accused of committing an unlawful act in order to find the truth of the material in the prosecution of a case. Right to be heard as the embodiment of the principle of audi et alteram partem also is a right guaranteed and protected by the 1945 Constitution, namely the right to be heard and considered, both the arguments and evidence presented before a judicial body that is independent and impartial (view that honors the equal rights of every individual). In the civil law, this principle gives equal standing to the parties in advance of judges with the burden of proof is balanced. Judges must share the burden of proof based on the similarity of their position. This principle carries due to the possibility to win for the parties with the same opportunity. In his nervous in civil law in general, who postulate something, then he will have to prove it as specified in HIR. But in practice, the division of the burden of proof is only fair that evidentiary burden is the least harmed if told to prove.
The most important of compulsory stance owned by a judge is the judge as the last bastion of justice should act as a figure standing in the middle between the parties in seeking justice and not be partial and can make a decision based on facts proven at trial. Judge neutral stance would provide a sense of peace of mind for those seeking justice because justice seekers it can be propped himself of the need for justice in itself a judge.
The Supreme Court itself has been set on the attitudes, tasks and duties of a judge both inside and outside the court as stated in the letter of the Chairman of the Supreme Court No. 215 / KMA / SK / xi1 / 2007, namely:
1. Judges should encourage the Court officials, lawyers and prosecutor and other parties subject to the direction and supervision of the judge to apply the same standards of conduct by the judge;
2. The judge must give justice to all parties and no intention merely to punish;
3. The judge must give equal opportunity to everyone, especially for litigants or their proxies who have an interest in a legal process in court;
4. The judge must behave in an honest (fair) and avoid actions reprehensible, or that could create the appearance reprehensible;
5. Judges should ensure that the attitudes, behaviors and actions, both inside and outside the court, always maintaining and enhancing public confidence, other law enforcement agencies as well as the parties litigant, that reflected the impartiality of judges and the judiciary (impartiality);
6. The judge shall report in writing the provision which included gratuities to the Corruption Eradication Commission (KPK) not later than 30 (thirty) working days from the date of such gratification received;
7. The judge shall submit the wealth reports before and after taking office without delay, willing to be examined immediately after taking office wealth and once served, and shall make every effort to ensure that such obligations can be run well, if required by the authorities, the judge must willing to be examined fortune at the time or during the taking office;
8. The judge should perform the function of the judiciary is independent and free from influence, pressure, threat or inducement, either directly or indirectly from any party;
9. The judge should avoid contact, either directly or indirectly with the Advocate, the prosecution and the parties in a case which is being investigated by Judge concerned;
10. Judges should limit the intimate relationship, either directly or indirectly by Advocate frequent litigant in the jurisdiction of the Court of Justice where it serves;
11. Judges must know their personal financial affairs as well as other financial expenses and shall use reasonable efforts to determine the financial affairs of the members of his family;
12. Judges must maintain the authority and dignity of the Judiciary and professional institutions both inside and outside the court;
13. The judge is obliged to know and explore and perform basic tasks in accordance with the legislation in force, in particular procedural law, in order to apply the law correctly and be able to give justice to every seeker of justice;
14. Judges must respect the rights of the parties in the judicial process and trying to make the case investigation in a simple, quick and inexpensive;
15. Judges must assist the parties and try to overcome all obstacles and barriers to realize the justice that is simple, fast and low cost in accordance with the legislation in force;
16. The President of the Court or a Judge designated, shall distribute cases to the panel of Judges fairly and equitably, and avoid distribution of cases to Judges who have an interest;
17. Judges must carry out the work as a sincere devotion, Hakim work not merely as a livelihood in employment to earn a living material, but rather a mandate which will be accountable to the people and the Almighty God;
18. Judges must take steps to maintain and improve the knowledge, skills and personal qualities to be able to perform the duties of judicial good;
19. The judge must diligently performing administrative responsibility and cooperate with the judge and other court officials in carrying out the administration of justice;
20. The judge knows or receive credible information that a judge others have violated this rule shall make reasonable efforts to avoid this recurring or can lead to unfair treatment for the parties, including providing information to the authorities in Judge supervision. Let the offense is contrary to the spirit of defending the corps of judges and the judiciary in general. Offenses committed by individuals Judges will eventually give birth to distrust on all judges and judiciary;
Understanding of judges with their obligations, especially in the hearing will make the trial to be smooth and will reduce the risk of actions that can lower judiciary (contempt of court), although the behavior of the judge in the trial which is not in accordance with the Criminal Procedure in force is not an act that degrades ( contempt of court) but it is against the code of conduct as a judge (contempt of conduct), which is categorized as an act of unprofessional (unproffesional conduct). The need for the role of each judge to remind each other that each judge should act in a professional manner so as to expedite the proceedings.
If the trial goes well, of course, will not prevent those seeking justice in his quest for justice and to provide optimal service to the community. And with the optimal similar service to the community, especially those seeking justice, can be realized also the vision of the Supreme Court of the Republic of Indonesia, the Indonesian Justice Board Realizing the Great.
D. CONCLUSION
From these descriptions above, it can be concluded as follows:
1. The Supreme Court of the Republic of Indonesia and judicial bodies under a body that implements the Judicial Power in Indonesia that should be carried out independently and without any interference from any party;
2. Judges as an important organ within a body of the judiciary, should act as a mediator in the sense in performing the duties kedinasannya, a judge is forbidden to be siding with one of the litigants;
3. A judge also must resign if there is a case that prosecution still has a good relationship with her family relationships and employment relationships;
4. In each trial, a judge must be prepared to be a good listener (audio et alteram paterm), by listening to both parties litigant in expressing their arguments;
5. Smooth the trial had an impact of services to people seeking justice so that the vision of the creation of the Great Courts can be achieved.
E. CONCLUSION
This brief article is probably not enough inside to disseminate the full liability for the judge in the trial, but at least be able to provide a preliminary understanding to us that a judge must understand the obligations, particularly during the trial of the case.
READING LIST F.
1. Bambang Sunggono, Law and Public Policy, Jakarta, Sinar Grafika, 1994;
2. H.M. Ali Mansour, Miscellaneous Legal Issues (Problems Agreement, and Pembaharuaan Consumer Law, in cooperation with Publisher Publisher Unisula Terrace, 2010;
3. Budiono Kusumohamidjojo, Philosophy of Law (Order problematic Fair), Publisher CV. Mandar Maju - Bandung.
G. LINK INTERNET
1. http://eprints.ums.ac.id/346/1/2._ZUDAN.pdf.
2. Ibid, http://eprints.ums.ac.id/346/1/2._ZUDAN.pdf.
3. http://www.sarjanaku.com/2013/03/pengertian-hakim-tugas-fungsi-dan.html, download date 18,112,015;
4. http://click-gtg.blogspot.co.id/2008/08/hakim-dan-kekuasaan-kehakiman.html, download date 18,112,015;
5. http://laliumah.blogspot.co.id/2013/02/tugas-fungsi-dan-tanggung-jawab-hakim.html, download date 18,112,015;
6. http://santhoshakim.blogspot.co.id/2015/11/audio-alteram-paterm.html, retrieved November 24, 2015;
7. https://pengata.wordpress.com/2011/06/28/apa-kewajiban-hakim-ini-jawabannya-menurut-surat-ketua-mahkamah-agung-ri-no-215kmaskxi12007/, downloaded 18112015 date;
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