Indonesia is a country based on law, as stated in the 1945 Constitution. Therefore, all Indonesian people receive equal treatment in the eyes of the law. Talking about the law, there will be many concepts of the law itself. Finding law as a concept which depends on the concept used whether the doctrinal concept (normative) or non-doctrinal legal concept (empirical). Law is a rule that is needed in almost every aspect of life. Mohammad Kusnardi and Bintan Saragih argue that:

‘The rule of law determines that its organs act according to and are bound by the rules determined in advance by the organs authorised to make those rules’.

The distinctive characteristics of a state of law are: 1. Recognition and protection of human rights; 2. Judiciary that is free from the influence of any power or other force and impartial; 3. Legality in the sense of law in all its forms.

The Indonesian state is based on law, so that all problems that violate the interests of citizens or people must be resolved based on applicable law.

The statement is implied in: 1. The Preamble of the 1945 Constitution (UUD) in paragraph 4 (four) which states that: ‘The Government of the Republic of Indonesia shall protect the entire Indonesian Nation and the entire Indonesian homeland and to promote the general welfare, the intellectual life of the nation and to participate in the implementation of world order based on independence, lasting peace and social justice’; 2. The Explanation of the 1945 Constitution of the Republic of Indonesia regarding the system of government. The Indonesian state is a state based on law (rechtstaat) and not on mere power (machstaat); 3. Articles of amendment to the 1945 Constitution on human rights that relate to legal protection of the rights of suspects and defendants.

Given that in a criminal process a suspect or defendant will face the state through its apparatus, which Van Bammelen described as a battle, he said ‘the guarantee of human rights must be strengthened, because otherwise there will be imbalances in accordance with the active role of judges, the first thing to be highlighted is human rights.’

In addition to this, Erni Wijayanti also stated ‘The existence of guarantees and protection of human rights in the regulation of criminal procedure law has a very important meaning, because most of the processes in the criminal procedure law lead to restrictions on human rights such as arrest, detention, confiscation, search and punishment which in essence are restrictions on human rights’.

Law Number 8 of 1981 concerning the Criminal Procedure Code (KUHAP) as a formal criminal law is the entire line of law that serves as a basis or guideline for law enforcers to implement the provisions of material criminal law or in short it can be said that formal criminal law regulates how the state with its equipment carries out its obligations to investigate, prosecute, impose and execute punishment. In the KUHAP and what will be discussed in this paper regarding the suspect/defendant.

The position of the suspect/defendant in the Criminal Procedure Code is as a subject, where in every examination must be treated in the position of a human being who has dignity, dignity and self-respect, the suspect/defendant is not seen as an object whose human rights and dignity are arbitrarily violated. A suspect/defendant cannot be treated at the whim of the examiner on the grounds that he/she has been found guilty of a criminal offence. This is because the principle of presumption of innocence adopted in the criminal justice process in Indonesia as stated in Article 8 of Law No. 4 of 2004 concerning judicial power, namely ‘every person who is detained, suspected, arrested, prosecuted, and/or brought before the court shall be presumed innocent until there is a court decision that states his guilt and has obtained permanent legal force’.

Although there are guarantees and protection of human rights in the form of legal protection of the rights of suspects/defendants, it has not been fully implemented, including in the field of law enforcement itself. Law Number 8 Year 1981 on the Criminal Procedure Code (KUHAP) does not only contain provisions on the procedure of a criminal process. The Criminal Procedure Code states that a person who is suspected or allegedly involved in a criminal offence still has rights that must be upheld and protected. KUHAP has provided protection for the rights of suspects/accused by placing a person who has been suspected/accused of committing a criminal offence in the same position as other people under the law. With the protection and recognition of the rights inherent in the suspect/defendant, it can provide a guarantee for a person who is suspected or charged with a criminal offence to be protected by law as regulated in Article 50 to Article 68 of the Criminal Procedure Code.

Law can be used to bring order to society. Law is an order of human conduct while ‘order’ is a system of rules. Law is not, as it is sometimes said, a rule. Law is a set of rules that contain some kind of unity that we understand through a system. The statement that law is an order.

Roscoe Pound has an opinion on law that emphasises law on discipline with his theory, namely: ‘Law as a tool of social engineering’ which means that Law is a tool to renew or engineer society. To be able to fulfil its role Roscoe Pound then made a classification of the interests that must be protected by the law itself, namely as follows:

1. Public Interest;

2. The Interest of the State as a Legal Entity;

3. The Interest of the State as the Guardian of the Public Interest;

4. Social Interest;

5. The Interest in Peace and Order;

6. Protection of Social Institutions;

7. Prevention of Moral Decay;

8. Prevention of Violation of Rights;

9. Social Welfare;

10. Private Interest;

11. Individual Interests;

12. Family Interest;

The science of law is included in the science of society which specifically studies human behaviour in relation to the rules of life, especially those that apply at present (positive law).

Then the things that are included in the science of law are:

1. The Science of Rules;

2. Science of Understanding;

3. Science of Reality.

While the rule of law according to Pound consists of three types, namely:

1. Legal rules that contain a command;

2. Legal rules that contain prohibitions;

3. Legal rules that contain permissibility.

That nothing but human action enters into the content of legal rules. Justice is one of the objectives of law. The purpose of law is not only justice, but also legal certainty and expediency. Ideally, the law should accommodate all three. The judge’s decision, for example, should be a resultante of all three. Even so, there are still those who argue that among the three objectives of law, justice is the most important objective, some even argue that it is the only legal objective. An example is shown by an Indonesian judge, Bismar Siregar, who said, ‘If to uphold justice I sacrifice legal certainty, I will sacrifice the law. Law is only a means, while the end is justice.’

Based on the background of the problem above, the problem formulation can be drawn as follows, namely:

How does Sociological Jurisprudence view the rights of the accused at trial?

Analysis:

SOCIOLOGICAL JURISPRUDENCE ON THE RIGHTS OF THE ACCUSED AT TRIAL

The development of the application of law in society today is not as easy as applying the law in the past because the law as binding rules with the aim of providing justice, certainty, expediency and ordering society cannot be applied to all individuals.

In line with the school of Sociological Jurisprudence previously explained that positive law will run effectively if it is in line with the laws that live in society. Positive law only has a limited value of justice, while the law that exists and lives in society has a lasting level of justice. Good law must be able to fulfil a sense of justice that always develops following the value of justice in society.

According to Roescoe Pound, law should be seen as a social institution that functions to fulfil social needs and it is the task of legal science to develop a framework within which social needs can be maximally met. Pound also advocated law as a process (law inaction), which is distinguished from written law (law in the books).

Roscoe Pound’s Concept of Law As A Tool Of Social Engineering

Law as a tool of social engineering is a theory put forward by Roscoe Pound, which means law as a tool of reform in society, in this term the law is expected to play a role in changing social values in society. By adjusting to the situation and conditions in Indonesia, the conception of ‘law as a tool of social engineering’ which is the core thought of the pragmatic legal realism school, by Mochtar Kusumaatmadja was then developed in Indonesia. In Mochtar Kusumaatmadja’s opinion, the conception of law as a means of reforming Indonesian society is broader in scope than in the United States where it was born, the reason being the greater prominence of legislation in the process of legal reform in Indonesia (although jurisprudence plays a role as well) and the rejection of the application of the mechanism of the conception which is described as resulting in the same results as the application of legism which is widely opposed in Indonesia. The nature of the mechanism is evident in Roscoe Pound’s use of the term ‘tool’. That is why Mochtar Kusumaatmadja tends to use the term ‘means’ rather than tool. Besides being adapted to the situation and conditions in Indonesia, the conception is also associated with the cultural philosophy of Northrop and policy-oriented from Laswell and McDougal. The law used as a means of reform can be in the form of legislation or jurisprudence or a combination of both, as stated earlier, in Indonesia the most prominent is legislation, jurisprudence also plays a role but not much. In order for the implementation of legislation aimed at renewal to run as it should, the legislation should be formed in accordance with what is at the core of the thinking of the sociological jurisprudence school, namely that good law should be in accordance with the laws that live in society. Because if it is not, as a result, the provisions will be unenforceable and will be challenged. Some examples of legislation that serves as a means of reform in the sense of changing the mental attitude of traditional society towards modernity, such as the prohibition of the use of koteka in Irian Jaya, the necessity of making land certificates and so on.

In this case, with the function of law as a means of reforming society, it can also be interpreted that law is used as a tool by agents of change who are pioneers of change, namely a person or group of people who gain the trust of the community as the leader of one or more social institutions. This pioneer emphasises changing the social system, influencing society with a system that is planned in advance, called social engineering or planning or as a means of social engineering.

Law as a tool of social engineering can also be interpreted as a means aimed at changing the behaviour of citizens, in accordance with predetermined goals. One of the problems faced in this field is the occurrence of what Gunnar Myrdal calls soft development, namely where certain laws that are formed and applied turn out to be ineffective. Such symptoms will arise, if there are certain factors that become obstacles. These factors can come from law makers, law enforcers, justice seekers, and other groups in society. If the law is the means chosen to achieve these goals then the process does not just stop at the choice of law as a means, but a solid knowledge of the nature of the law also needs to be known in order to know the limits in the use of law as a means to change or regulate the behaviour of citizens. Because the existing means limit the achievement of goals, while the goals determine which means are appropriate to use.

Law in modern society today has a prominent feature that its use has been carried out consciously by the community. Here the law is not only used to strengthen the patterns of custom and behaviour found in society, but also to direct them to the desired goals, eliminate habits that are deemed no longer appropriate, create new patterns of behaviour and so on. This is what is referred to as a modern view of the law that leads to the use of law as an instrument, namely law as a social engineering tool.

The conscious use of the law as a means of changing society or a means of reforming society can also be referred to as social engineering by the law. And the steps taken in social engineering are systematic, starting from the identification of problems to the way to solve them, namely:

1. Get to know the problem as well as possible. This includes carefully recognising the community that will be the target of the work.

2. Understanding the values that exist in society, this is important in the event that social engineering is to be applied to a society with multiple sectors of life, such as traditional, modern and planning. At this stage it is determined which sector’s values are chosen.

3. Make hypotheses and select the most feasible ones for implementation.

4. Following the implementation of the law and measuring its effects.

Roscoe Pound’s Legal Concept of Sociological Jurisprudence

Roscoe Pound is one of the legal scholars of Sociological Jurisprudence who directs his attention more to the ‘Legal Reality’ rather than the position and function of law in society. The reality of law is basically public will, so it is not just law in the sense of law in books. Sociological Jurisprudence shows a careful compromise between written law as a need for legal society for the creation of legal certainty (positivism law) and living law as a form of appreciation for the importance of the role of society in law formation and legal orientation.

The Primary Function of Law.

The main function of law is to protect the interests that exist in society. According to Roscoe Pound, there are three interests that must be protected by law, namely public interest; individual interest; and interest of personality. The details of each interest are not an absolute list but change according to the development of society. Thus, it is highly influenced by the time and condition of society. If these interests are arranged as an invariable arrangement, then the arrangement is no longer a social engineering but a political statement (political manifesto).

The Primary Duty of Law.

The main task of law is social engineering (law as a tool of social engineering – Roscoe Pound). Law is not only formed based on the interests of society but must also be enforced in such a way by jurists as an effort of social control in the broadest sense whose implementation is orientated towards the desired changes.

Therefore, it is strongly influenced by components outside the law, so law enforcers in realising the main task of law must correctly understand the logic, history, customs, customs, guidelines for correct behaviour so that justice can be upheld. Fair legal decisions can be used as a means to develop society. The main task is the means of renewal of society in development.

The Strategic Role of Judges in the Perspective of Sociological Jurisprudence.

The life of law as social control lies in the practice of implementing or applying the law. The task of judges in applying the law is not merely understood as a formal social control effort in resolving conflicts, but at the same time designing the application of the law as a social engineering effort. The judicial duties of judges are no longer understood merely as applying the law to concrete events (in the form of various cases and conflicts) or as a mere mouthpiece of the law (boncha de la loi) but also as a driver of social engineering. Legal administrators must pay attention to the functional aspects of the law, namely to achieve change, by making legal changes always by using all kinds of interpretation techniques (functional legal theory).

Roscoe Pound’s Theory of Law

‘Law is a tool of social engineering’ is what Roscoe Pound said about the law. Just like what Mochtar Kusumaatmadja said, law is the overall principles and methods that govern society, including institutions and processes to realise the law into reality. Both of these jurists have the same view of the law.

The interests of the state must be the highest/top because the state has national interests. The national interest must protect the interests of the state. The will of the state is the will of the public. Because the law is not what positivist theories of punishment say that the law has a closed nature. Law is strongly influenced by ideology, politics, economics, social, culture. Not just the will of the government. An open logic, the development of community needs greatly influences the growth of law in society. Politics greatly influences the growth of law in society.

The Primary Function of Law.

One of the problems faced is finding a system and implementation of law enforcement that can properly incarnate legal functions such as social control functions, dispute resolution functions, integration functions, facilitation functions, renewal functions, welfare functions and others. At present, the differences in legal functions are often an element that encourages differences in the purpose of applying the law. Some emphasise the function of social control, or the function of change, and others. If each party demands according to its own wishes, what arises is a legal problem rather than a legal settlement. It even causes conflicts that connote mutual blame, mutual accusations, and others. The main function of law is to protect the interests that exist in society. As discussed in the previous topic in the context of interests according to Roscoe Pound. The details of each interest are not an absolute list but change according to the development of society. So, it is strongly influenced by the time and conditions of society. If the arrangement of these interests is arranged as an invariable arrangement, then the arrangement is no longer a social engineering but a political statement (political manifesto).

The Rights of the Accused at Trial.

KUHAP has clearly and explicitly regulated matters relating to the rights of the suspect/defendant (Articles 50 to 68 of KUHAP), and every party is obliged to respect the rights of the suspect/defendant. The rights of the suspect/defendant according to KUHAP are as follows:

1. The right to be immediately examined, brought to court and tried (Article 50 paragraphs (1), (2) and (3));

2. The right to know clearly in a language he understands what he is accused of and what he is charged with (Article 5 points a
and b);

3. The right to give testimony freely to the investigator or judge (Article 52);

4. The right to receive an interpreter (Article 53 paragraph (1));

5. The right to receive legal aid at every level of examination (Article 54);

6. The right to receive legal advice from a legal counsel appointed by the relevant official at all levels of examination for suspects or defendants who are threatened with death penalty or a sentence of fifteen years or more at free of charge (Article 56);

7. The right of a suspect or accused who is a foreign national to contact and speak with a representative of his/her country (Article 57 paragraph (2));

8. The right to be notified to his/her family or other persons residing with the detained suspect or accused to obtain legal aid or bail for his/her suspension and the right to have contact with his/her family for the same purpose (Article 59 and Article 60);

9. The right to be visited by relatives who are not related to the case of the suspect or accused for work or family purposes (Article 62);

10. The right to correspond with legal counsel and his/her relatives (Article 62);

11. The right to contact and receive visits from clergy (Article 63);

12. The right to present witnesses and experts in his/her favour (Article 65);

13. The right to appeal against a judgement of the court of first instance, except for acquittals, acquittals from all charges concerning inaccurate application of the law and judgements made by the court in a speedy trial (Article 67)

14. The right to appeal against the judgement of the court of first instance except for acquittals, acquittals from all charges concerning the inaccurate application of the law and judgements made in a speedy trial (Article 67); and

15. The right to claim compensation and rehabilitation (Article 68).

The principle of presumption of innocence to the suspect/defendant as mentioned above will be connected with the flow of Sociological Jurispurdence, which is a school of thought of legal philosophy that focuses on law in relation to society. According to this school, a good law must be a law that is in accordance with the laws that live among the community. This school explicitly separates between positive law (the positive law) and the living law (the living law). In short, it is a legal school whose concept is that laws are made to pay attention to the laws that live in society or living law both written and unwritten.

In Law Number 4 of 2004 concerning Judicial Power, which is one of the sources of criminal procedure law, there is a fundamental principle that is closely related to the rights of suspects/defendants, namely the presumption of innocence which reads: ‘Every person who is suspected, arrested, prosecuted, and or brought before the court shall be presumed innocent before a verdict that states his guilt and has obtained permanent legal force’.

Based on the above principle, it is clear that a person suspected or charged with a criminal offence must be placed properly in accordance with his dignity as a human being. In the body of the 1945 Constitution (UUD) Article 27 paragraph (1) states: ‘All citizens shall have equal rights in law and government and shall uphold the law and government with no exceptions’.

Human rights are fundamental rights / rights of nature / absolute rights belonging to mankind, which are owned by human beings from birth to death. Whereas in its implementation, it is accompanied by obligations and responsibilities. In some applicable legal provisions, a person before birth can be given / have certain rights, as well as after death.

Every Indonesian citizen who deals with law enforcement officers, both those who uphold the law and those who violate the law, must implement and realise this principle in the life of the nation and state. Because of the importance of respect and protection of human rights, the United Nations stipulates, among others; ‘The right to equal standing in the law or the human right to receive judicial treatment and legal protection’.

This is the same as in the Universal Declaration of Human Rights in Article 7 which states, ‘All persons are equal before the law and are entitled to equal protection of the law without distinction’, the Convenan on civil and political rights and in Article 26 which states, ‘all persons are equal before the law and are entitled to equal protection of the law without discrimination’.

Closure:

Based on the above, the author concludes as follows:

The theory of Sociological Jurisprudence proposed by Roscoe Pound and the Judicial Power Act itself. Reflecting on the Judicial Power Law No. 48 of 2009 has actually regulated clearly and clearly that judges must seek justice that refers to equal rights before the law because good law will be realised when positive law is in harmony with the laws that live in society, this is in line with the flow of Sociological Jurisprudence. Which in the flow of Sociological Jurisprudence expects laws that are in accordance with the wishes, needs and expectations of the community. So that what is prioritised is the benefit of the law for the community itself so that the law can become alive in the community itself.

By reflecting on the flow of Sociological Jurisprudence, the author suggests that law enforcement officials in carrying out their duties must respect the rights of people who commit criminal offences and not hamper suspects or defendants in obtaining their rights and always pay attention to the laws that live and develop in society.

Author: Rahmat Nur Najib, S.H.