OVERVIEW BILL CONTEMPT OF COURT

OVERVIEW BILL CONTEMPT OF COURT 

(AN OTOKRITIK)

BY: H. SANTHOS WACHJOE P, SH.MH

A. INTRODUCTION
Justice sector is currently experiencing the transition period, ie by decreasing the level of public confidence as justice seekers in the performance of the apparatus courts. Not only the general judicial bodies in the spotlight, but also bodies such badapan laain peradiln that religious courts, judicial bodies of the state administration and the military judiciary. It should be recognized that merosostnya level of public trust in the court performance of the apparatus, is also due to unscrupulous court officials like the word, fishing in troubled waters, namely using the ignorance of those seeking justice for personal gain or faction.
Mistrust of the justice seekers are often revealed during the trial process, either by removing the words that are degrading the courts or even to use the power of sport both hands or legs to obstruct the proceedings or does not close the possibility of damaging the existing facilities in court office. The community still do not understand that their office is in the court of services to meet the legal needs of those seeking justice and procurement office and its contents in the form of court hearings and apparatus equipment prepared countries, using money collected from taxes paid by the public. Destruction of office facilities courts and delays in the proceedings or even where to place the act of degrading the court which caused no injuries or lives, of course, very unfortunate because not only harm people who have willingly pay taxes which tax is used for the operations of the court office, is also detrimental to the seeking justice itself is due to the delay in the search for justice.
In this case, if there is an action that is degrading courts, judicial bodies should have the tools to protect themselves when it occurs and the emergence of actions degrading the court. So that the dignity of the court is not tarnished and the court can provide optimum services to those seeking justice.

B. Bill Contempt of Court. An inevitability forgotten
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.
With the passage of the law applied by judicial authorities in order to provide justice for the people seeking justice, then inevitably the judiciary must be maintained dignity of the actions that are degrading dignity of the judiciary. Degrading action of the judiciary or often referred to as Contempt of Court can be interpreted adalahberasal terminological definition of the word contempt and court. contempt interpreted abuse, insulting, patronizing. Court interpreted the court. Thus the Contempt of Court is an attempt melaggar, insult, scorn court. Meanwhile, according to Muladi, meaning court in a contempt of court is a court of judicature a body established by law to exercise, either Generally defined lemits or subject to, the judicial power must be differentiated from the legislative, executive and judicial.
General Explanation of point 4 of Law No. 14 Year 1985 regarding the Supreme Court, said: "to be able to better ensure the creation of an atmosphere that is as well as possible for the administration of justice to enforce law and justice based on Pancasila, it is necessary to make a law governing the prosecution of actions, behavior, attitude, or greeting to demean and undermine the authority, dignity and honor of the judiciary, known as contempt of court ". Under Law No. 14 The Year 1985, was issued a Joint Decree (SKB) No: M 03-PR'08.05 of 1987 on the Procedures for Monitoring, Enforcement and Self Defense Counsel. With the publication of this decree, the objectives of the Act No. 14, 1985, it has been carried out but not as expected, which is poured in the form of legislation. SKB is only regulate Contempt of Court made by legal counsel only.
Although contempt of court has long set that is since 1985 with the issuance of Law No. 14 of 1985 on the Supreme Court, but until recently the Act specifically governing has not been published by the Government as a stakeholder, so we can say that this law is a necessity that is forgotten or needed but ignored. And after waiting more or less for 30 years, presumably should be appreciated with the advent of the draft preparation of the Draft Law on the Implementation of the Crime of Justice (Contempt of Court). Although late, but at least there is an awareness that we need a law that specifically regulates the actions that may be degrading the court.
C. Self-criticism of the Law Contempt of Court
Draft Law on Implementation of the Crime of Justice consists of nine (9) chapters and 55 (fifty-five) chapters, each chapter consists of several paragraphs and at the end there is also the explanation article by article.
When we look at the title of the Bill, will give the impression that the organization of the judiciary is a criminal offense, considering also disandingan by Act No. 8 of 2010 on the Prevention and Combating Money Laundering, then clearly reads that Act No. 8 of 2010 is an Act to regulate on the prevention and combating of money laundering. Therefore, when we read the title of the draft Law of Contempt of Court, which reads is the administration of justice is a criminal offense, whereas actually this Act want to govern the actions that are degrading the implementation of the court, therefore, would need to change to title against this draft law.
Furthermore, in Chapter I of the General Provisions, Article 1 consists of four (4) points are mentioned:
article 1
Referred to in this Act by:
1. Judicial Power is an independent state authority 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.
2. Implementation of Justice Crime is any interventionist action, action, gesture, speech, behavior and / or publications that tendency can be insulting, degrading, disruption, and undermine the authority, honor and dignity of a judge or the judiciary.
3. The offenses direct administration of justice is a criminal offense committed at the time and when the judicial process is underway.
4. Court Order is any orders given either orally or in writing by any judge or court in the dictum of the determination or decision to be obeyed and implemented.
In this provision, are not described or mentioned on anyone who is the subject and object of this Act, including any mention of the notion of Law Enforcement whereas in Article 39 there is a term for Law Enforcement Officials, article 39 of the more mentions law enforcement authorities, Advocate , the official State prison / Correctional Institutions that do not comply with or abusing the judge's ruling, shall be punished with imprisonment for a minimum of 4 (four years) and a maximum of 10 (ten) years and article 40 which states law enforcement officers, officers prison / Penitentiary which do not comply with or abusing the judge's ruling, shall be punished with imprisonment of minimum 3 (three) years and a maximum of 10 (ten) years.
Unclear understanding of Administrative Law Enforcement will certainly be confusing if the Bill is passed into law and implemented in the community. In the various regulations mentioned that what is meant by Administrative Law Enforcement is the police, prosecutors, courts, correctional and Advocate. Especially with regard to Advocate regulated in Law Number 18 Year 2003 concerning Advocates.
In the trial, which is involved in it are not always the same, in the trial of criminal matters is certainly different from hearing a civil case, and the trial in the judiciary religious, judicial bodies of the state administration and judicial proceedings in the military in. Bill did not provide details clearly and carefully any party involved in the hearing, and anyone who is referred by law enforcement authorities. This should be corrected considering actions that humiliate court not only be addressed to law enforcement authorities are involved in it, but also be addressed to an individual, that is to witnesses, defendants and spectators, who may have no relationship at all to the case being trial and for the sake of protection of the trial process and the parties involved in it.
Then, in the provisions of Article 10 paragraph (1) and (2) which states:
(1) The judge or the court may take action in order to increase the organization of the judiciary;
(2) Actions undertaken can be in the form of a decision, determination or spoken commands.
In the explanation of Article 10 simply stated quite clearly, but if we look at, there will be irregularities, namely in particular in paragraph (2) that the actions carried out in the form of a decision, determination or spoken commands. Against the verbal command, it is understood that the judge or panel of judges may order a person or group of people to maintain order and security during the trial, but what is the basis for the judge or panel of judges to issue a ruling or determination during the trial.
In practice, the Judge's decision was based on a warrant from the public prosecutor / military prosecutor in a criminal case or a Judge's decision was based on the existence of a lawsuit in a civil case, both in the local courts, religious courts or administrative courts. While the determination of the judge is based on their request, whether it was the request of seizure, search, detention or others in a criminal case or petition for sequestration (conservatoir beslag), application for renaming, the petition or others in civil matters, including a request within the scope of religious courts and justice state Administration.
So in case of actions degrading the court (contempt of court), presumably the judge or panel of judges can only give verbal orders to do the action as stipulated in article 11 paragraph (1) which states: To maintain smooth order and security in the administration of justice the judge may order;
a. In order for a person or group of people excluded from the hearing room or on the court yard;
b. A ban on access to the administration of justice within a certain radius.
Article 10 paragraph (2) would also conflict with the provisions of article 11 paragraph (2) which states the judge's order can be made orally or in the form of determination. In Article 10, paragraph (2) possible orders in the form of a decision, determination or verbal orders, but in the provisions of Article 11 paragraph (2) only in oral form and determination. There ketidaksingkronan in drafting provisions that give the right to maintain smooth judge in the trial.
Somewhat confusing when the judge gave the order to maintain the smooth proceedings in the form of a decision or determination, it is due to be determined as well as who became executor or executors of judgment or determination of the judge. Does not guarantee a person who received a judgment or determination of the judge to keep the trial going smoothly carry out a voluntary basis, so it is necessary for the attainment of their efforts forcers such decision or determination.
The other thing is in article 11 paragraph (5) mentions Further provisions on the smooth, order and security in the administration of justice regulated by or under the rules of the Supreme Court, until now there has never been PERMA (Supreme Court Rules) which specifically regulates it.
Article 13 if we look will also cause confusion. Article 13 mentions:
(1) The judge or the court may issue an order to the Indonesian National Police officer or a security police securing judicial administration of justice.
(2) To secure in the proceedings, the order referred to in subsection (1) may be made orally and for security beyond the trial can be done with determination.
The big question, if I can judge or panel of judges gave the order to a Police Officer? In practice, at least two (2) or three (3) days before the trial, the judge or panel of judges ordered the Registrar / Secretary of the Court to make a letter of request for security assistance proceedings to the police, because there is no hierarchy directly from the judge or panel of judges for Police officers may order, except when the proceedings there are things that can disrupt the trial, the judge or the judges may order verbally to police officers who are in charge of keeping the trial.
Then, in Part Two concerning the Security Police Justice, set out in article 14 to article 16. This becomes interesting, considering the provisions of article 14 states:
(1) To secure the administration of justice, as the executor of the judicial authorities, in addition to the police formed a task force Security Courts.
(2) The Security Police Court of Justice and a task force tasked to secure the administration of justice, both within and beyond the trial.
(3) The task force helped Court Court Security Police in the area of ​​the court
Explanation Article 14 also states quite clearly without being able to explain the meaning of the provisions of Article 14 of this. In article 14 mentions the new body within the judiciary, namely Security Task Force Justice and the Court Security Police. Thus if both of these things berberda with Security Unit (Security), which is in charge of guarding the courthouse and maintain orderly proceedings? What is the basis of the establishment of the new agency, who can be members of Security Task Force Justice and the Court Security Police and how the salary or wage payment system against them? It is not explained in detail in the design of this Act. If the payroll system refers to the budget in DIPA, would be very burdensome considering the budget in DIPA is set so as to satisfy all the needs of the judiciary during the first fiscal year.
Article 15 states on the definition of Security Police and the Judicial authority Judicial Security Officers, namely:
(1) The Judicial Security Police is a security organization of the judiciary.
(2) Judicial Security Officers referred to in paragraph (1) shall be authorized:
a. Verify a report or information relating to a criminal act against the organization of the judiciary.
b. To investigate individuals suspected of committing a crime against justice penyelengaraaan.
c. Check the person's identification in order to secure the organization of the judiciary;
d. Conduct search and seizure of evidence a criminal act against the organization of the judiciary in accordance with the provisions of the legislation in force.
e. Asking for information and evidence from persons or legal entities in connection with criminal offenses against the organization of the judiciary.
f. Capture and hold the coordination and supervision of the Indonesian National Police investigators according the Code of Criminal Procedure with regard to the provisions of this Act;
g. Create and sign the minutes;
h. Discontinue an investigation when there is not enough evidence of criminal activity against the administration of justice;
(3) The police judicial safeguards referred to in paragraph (2) notify the commencement of the investigation and submit the results of an investigation to the public prosecutor in accordance with the Book of the Law of Criminal Procedure.
(4) In the event of a difference of opinion regarding the completeness of the dossier, Justice Security Officers can apply to the District Court for trial in pretrial proceedings.
Must be borne in Article 15 are present article only mentions the significance of Security Police Justice without a mention of its duties and authorities, and in paragraph (3) diesbutkan that Officer Safety Courts notify the commencement of the investigation and submit the results of an investigation to the public prosecutor in accordance with the Book of the Law Code of Criminal Procedure. Safety Officer should be questioned whether justice is also served as an investigator, because under article 6, paragraph (1) of Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code) states: Investigators, are:
a. Police officials of the Republic of Indonesia;
b. certain civil service officials are given special authority by law.
Regarding Civil Servants (PNS) that have special authority as investigators are customs and excise officials, immigration officers and forestry officials who carry out the investigation in accordance with the special powers granted by the legislation that became the legal basis respectively. From the foregoing, it must be determined in advance on the status of a Security Officer Justice, is also a Civil Servants (investigators) who has the authority to conduct investigations and examinations in order to assist police officers and set the legal basis of the Security Officers arrangements Justice as a civil servant.
Then, chapter 20 concerning someone who is a victim of degrading the court, which states:
(1) Any person who damage the building, courtroom, or scientific equipment resulting trial judge could not hold court, shall be punished with imprisonment for a period of 9 (nine) years;
(2) If the criminal offense referred to in paragraph (1) shall be conducted during the ongoing trial that led to the trial can not proceed, shall be punished with imprisonment of 10 (seppuluh) years;
(3) If the criminal offense referred to in paragraph (2) resulted in law enforcement officers who are performing their duties were wounded shall be punished with imprisonment of 12 (twelve) years;
(4) If the crime referred to in paragraph (2) resulted in the death of law enforcement officers who are performing their duties or when memebrikan witness testimony, shall be punished with imprisonment of minimum 3 (three) years and a maximum of 15 (fifteen) years.

This article would only addressed to law enforcement authorities who are undergoing trial and did not organize and hold a victim who is a courtroom, a witness or a defendant in the trial, because it is possible that people who are not related to the case to be tried will be a victim.
Another crucial thing is the provisions of Article 51 governing detention, which states:


(1) Any person who does not comply with a court order issued for the benefit of the organization of the judiciary to do detention;
(2) The detention order given by the court valid for a period of 30 (thirty) days;
(3) The period as mentioned in paragraph (1) may be extended for a maximum of 30 (thirty) days and then can be extended again for a period of 30 (thirty) days;
In connection with the detention, must not be separated from the provisions of articles about the detention in the Criminal Code, namely article 21 to article 31 of Law No. 8 of 1981 on Criminal Procedure. It should be noted that Article 21 paragraph (4) Criminal Procedure Code regulating the offenses do detention. In addition, during this detention known only in general courts and military courts, with the exception of the Court Syar'iyah in Nanggroe Aceh Darussalam who can commit against perpetrators of criminal acts stipulated in Qanun (Regional Regulation) which is punishable by flogging. So in case of acts that are degrading the court is happening in the realm of religious courts and administrative courts, unquestionable forms of incarceration and detention pelaku.perlu confirmed whether the Court of religion or the State Administrative Court can immediately make an arrest or delegate to District Court , remember hearing of a case of contempt of court conducted in the District Court as provided for in article 5 of the draft Law on crime Peenyelenggaraan justice, which states: (1) the District Court jurisdiction over all offenses against the administration of justice for all courts in the jurisdiction and (2) of the District court in the jurisdiction the defendant resides, dwells last place was found, only the authority to hear if the residence of most of the witnesses called closer to the court than the seat of the district courts in the area the criminal act was done ,
When we read the provisions of Article 51 paragraph (3) will certainly membat we wonder who signed the determination of his detention, because as the Chairman of the Court may only prolong the detention of a case that has been entered in court only as much as 1 (one) to 60 (six thirty) days, as daitur in article 26 paragraph (2) and (4) the Criminal Procedure Code which states: (2) the period as mentioned in paragraph (1) if necessary for the purpose of examination is not yet complete, it may be extended by the Chairman of the District Court bersangkuta for 60 (sixty) days and (4) After a period of ninety days although the case has not been concluded, the defendant must be released from custody by law. The provisions of the Criminal Procedure Code, it can be seen clearly that the provisions of article 51 in particular paragraph (3) deviate the provisions of the Criminal Procedure Code is a guideline in detention.
Another thing that needs attention is, the Draft Law on the Implementation of the Crime of Justice (Contempt of Court) none chapter regulating the legal remedy against the decision of the judge considering legal action is the right of the convict. The absence of the convicted person's right to take legal actions will certainly make the infringement of rights convict.
Finally, in Chapter IX of the Final Provisions, which in Article 54 states further provisions regarding the application of procedural law and order proceedings regulated by or under the Regulation of the Supreme Court. Explanation Article 54 is not listed in the column explanation article by article of the Draft Law on the Implementation of the Crime of Justice. Sure to be a strange thing when no article in a law but not accompanied by any explanation and presumably on the article 54 was contrary to the rules of the general rule of law in Indonesia, which is on an Act, the implementation regulation is a government regulation, not the Rules of Court Great, because the Supreme Court Rules governing the attitude of the Supreme Court to a problem that occurs in the proceedings relating to the outside courts and not to describe an Act.
Thus, there are still many shortcomings in the draft Law on Crime Implementation of Justice that need improvement so as not to make this Act as the Act which paralyzed inapplicable when it was enacted.

D. CONCLUSION
From the description of the Draft Law on Crime Implementation of Justice, it can be concluded as follows:
1. Establishment of an Act to regulate Contempt of Court is already an imperative need to be formed;
2. Preparation of the Draft Law on the Implementation of the Crime of Justice is the embryo of the establishment Undangyang Law governing Contempt of Court;
3. The need for refinement of the draft Law on Crime Implementation of Justice so as not to make the Bill becomes an Act to paralysis that can not be used when it is enacted;

E. SOURCES OF READING
1. Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code);
2. Law Number 18 Year 2003 concerning Advocates;
3. 8Tahun Law No. 2010 on the Prevention and Combating Money Laundering (AML);
4. http://eprints.ums.ac.id/346/1/2._ZUDAN.pdf;
5. http://santhoshakim.blogspot.co.id/2015/11/contempt-of-court.html, download date 02,122,015;
6. http://santhoshakim.blogspot.co.id/2015/11/contempt-of-court.html, download date 02,122,015;
7. http://tugasdanwewenangaparatpenegakhukum.blogspot.co.id/, download date 02,122,015;
8. http://tugasdanwewenangaparatpenegakhukum.blogspot.co.id/, download date 02,122,015;