9f

Republic of the Philippines

Department of the nterior and Local Government
Philippine Public Safety College
NATIONAL POLICE COLLEGE ANNEX
Camp Mariano N Castaneda, SiIang, Cavite

rl(l(| ]l ,](,

Indonesia



Submitted by : GROUP 5
PSOAC 2011-117

PSI CLARK Q CUYAG
PSI NAPOLEON Q INOT
PSI RONNIE L NAIRA
PSI ANNALEE C PALIMA
PSI MAGILAS S SALVACION
PSI GILBERT G SAN JUAN
PSI SAMUEL DA VILLAMER

Submitted to : Dr. George Fernandez

DATE : October 21, 2011

9f

CriminaI Justice System in Indonesia

Introduction
Generally, Criminal Justice System is a set of legal and social institution for
enforcing the law, more specifically criminal law.
The Law and CriminaI Justice System
aw is defined as a rule of conduct or action
prescribed or formally recognized as binding or enforced
by a controlling authority Mirriam-Webster's Dictionary of
Law). t is a rule of conduct formulated and made
obligatory by legitimate power of the state Garcia-Padilla
v. Ponce Enrile ER 61388, 20 April 1983).
The law can be categorized into Private and Public
law. Private Law governs the relationships among
individual citizens while Public law governs the relationship
between the state and the people. Civil Law is a form of private law and governs the
relationships between individual citizens while 7iminal law is an aspect of public law
and relates to the conduct which the state considers with disapproval and which it seeks
to control and/or eradicate Legal Research and Bibliography, Peter Ng, et al, July
2007, p.97-98). According to Walston-Dunham (2004), civil cases are issues that arise
between parties over private rights, such as one citizen suing another or against the
state, or the government against an individual for damage to public property (e.g. hitting
a stop sign). Criminal Law includes all laws designed by the legislature to maintain order
and safety and certain conduct by all persons. Hence, a .7iminal .ase is a suit filed by
the government for violation or injury to public rights because crimes are essentially a
violation of public rights where the public as a whole demands safety and certain
conduct by all people.
n civil cases, procedural law takes effect when citizens bring a dispute to the
legal system. n criminal law, the law enforcement agencies and prosecutors, who are
part of the legal system, initiate a claim against a citizen. Therefore, .7iminal
p7o.edu7al law begins at the time the law enforcement personnel anticipate that they
will bring a dispute into the legal system Legal Research and Bibliography, Peter Ng, et
al, July 2007, p.99).
n summary, 7iminal Justi.e System is the process of enforcing criminal law
initiated by the government against its people, beginning at the time the law enforcers
anticipates that they will bring a dispute into the legal system, filing appropriate charges
in court for violation of public rights, conducting a trial for the opportunity to heard and
present evidence from both parties, present a ruling on the case and if there is
conviction, set and administer the punishment.
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The PiIIars of CriminaI Justice System

The pillars are the components that constitute systems. n our country, we
recognize five (5) pillars, namely: Law Enforcement, Prosecution, Courts, Corrections
and Community. According to rene Putrie's (an ndonesian Public Prosecutor) report
paper in an nternational Training Course, in ndonesia there are only four pillars: Law
Enforcement, Prosecution, Courts, Execution of Justice.
First, an investigation is carried out by the police. All investigations for criminal
cases, except corruption cases, are carried out by the police, but during the
investigation, the police have to inform the prosecutor about the case and if they arrest
or detain the suspect. t is almost similar in our system.
Second, the Prosecution is carried out by the Public Prosecutor's Office. The
office is a government institution that executes the state's power especially in the field of
prosecution. The Attorney General, who is appointed by and responsible to the
President, heads the public prosecution service. The Attorney General's Office is
located in Jakarta. Structurally, it is subdivided. The High Public Prosecution Offices are
located in the capital city of every province and further subdivided by District Public
Prosecution Offices. n criminal cases, the duties of the public prosecutor are:

a. To institute prosecution in criminal cases;
b. To execute a judge's stipulation and law in court's judgment;
c. To supervise the execution of a verdict of parole; and
d. To make a complete dossier of case (s); and to carry out the necessary
additional examination.

Third, court has judiciary power. The highest court of the land is the Supreme
Court (Mahatma Agung) under Act No. 14/1970 and Act No. 35/1999. ndonesia has
neither a jury nor lay judge system. All cases are handled by a three-judge panel. There
are four (4) types of court:

a. General Court (for criminal cases and private disputes);
b. Military Court;
c. Administrative Court; and
d. Religious Court.

The Fourth pillar is the execution power under the Ministry of Justice and Human
Rights. Actually, the executor in ndonesia is a Public Prosecutor, but the prisons or
correctional institutions are under the Ministry of Justice.


9f

istoricaI Background that Shaped Indonesia

Much like our country, ndonesia's first known hominid inhabitant of ndonesia
was the so-called "Java Man", or Homo erectus, who lived half a million years ago.
Then migration from different races such as Papuans, the modern-day Malays,
Javanese and other Malayo-Polynesian groups now make up the bulk of Indonesia's
population. Trade contracts with ndia, China and the mainland of Southeast Asia
brought outside cultural and religious influences to ndonesia. One of the first ndianized
empires, known to us now as Sriwijaya, was located on the coast of Sumatra around the
strategic straits of Malacca, serving as the hub of a trading network that reached many
parts of the archipelago more than a thousand years ago. The last and most powerful
early Hindu-Javanese kingdoms, the 14th century Majapahit Empire, once controlled
and influenced much of what is now known as ndonesia, maintaining contacts with
trading outposts as far away as the west coast of Papua New Guinea.

ndian Muslim traders began spreading slam in ndonesia in the eighth and ninth
centuries. By the time Marco Polo visited North Sumatra at the end of the 13th century,
the first slamic states were already established there. Soon afterwards, rulers on Java's
north coast adopted the new creed and conquered the Hindu-based Majapahit Empire
in the Javanese hinterland. The faith gradually spread throughout archipelago, and
ndonesia is today the wo7ld's la7est Islami. nation.

ndonesia's abundant spices first brought Portuguese merchants to the key
trading port of Malacca in 1511. Prized for their flavor, spices such as cloves, nutmeg
and mace were also believed to cure everything from the plague to venereal disease,
and were literally worth their weight in gold.
The Dutch eventually wrested control of the
spice trade from Portuguese, and the
tenacious Dut.h East India ompany
(known by initials VOC) established a spice
monopoly which lasted well into the 18th
century. During the 19th century, the Dutch
began sugar and coffee cultivation on Java,
which was soon providing three-fourths of
the world supply of coffee. Much li ke the
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Phi li ppi nes, ndonesi a was col oni zed for centuries. The Dutch began to
col oni ze ndonesi a i n the earl y 17th century until the Japanese occupi ed the
i sl ands from 1942 to 194. By the turn of the 20th century, nationalist stirring, brought
about by nearly three centuries of oppressive colonial rule, began to challenge the
Dutch presence in ndonesia. A four-year guerilla war led by nationalists against the
Dutch on Java after World War , along with successful diplomatic maneuverings
abroad, helped bring about independence. The
#epubli. of Indonesia, officially proclaimed on
August 17th, 1945, gained sovereignty four years
later.

During the first two decades of
independence, the republic wa s dominated by the
charismatic figure of Sukarno, one of the early
nationalists who had been imprisoned by the Dutch.
General (ret.) Soeharto eased Sukarno from power
in 1967. ndonesia's economy was sustained
throughout the 1970's, almost exclusively by oil
export. The Asian financial crisis, which broke out in
mid-1997, paralyzed the ndonesian economy with
the rupiah losing 80% of its value against the US
dollar at the peak of the turmoil. On May 21, 1998,
Soeha7to 7esined afte7 32 yea7s in power and
was replaced by B.J. Habibie following bloody
violence and riots. ndonesia held its first
democratic election in October 1999, which put
Abdurrahman 'Gus Dur' Wahid in the role of
president. CIA Factbook, www.llrx.com and
www.indo.com)


9f

Indonesian LegaI System

Overview

According to Dr. Benny S.
Tabalujan (BEc LLB Monash LLM
PhD Melbourne Barrister &
Solicitor), the ndonesian legal
system is complex because it is a
confluence of three distinct
systems. Prior to the first
appearance of Dutch traders and
colonists in the late 16th century and early 17th century, indigenous kingdoms prevailed
and applied a system of adat (customary) law. Dutch presence and subsequent
colonization during the next 350 years until the end of World War left a legacy of
Dutch colonial law. A number of such colonial legislation continues to apply today.
Subsequently, after ndonesian declared independence on 17 August 1945, the
ndonesian authorities began creating a national legal system based on ndonesian
precepts of law and justice.

These three strands of adat law, Dutch colonial law and national law co-exist in
modern ndonesia. For example, commercial law is grounded upon the Commercial
Code 1847 (Kitab Undang-Undang Hukum Dagang or Wetboek van Koophandel), a
relic of the colonial period. However, commercial law is also supplemented by a large
number of new laws enacted since independence. They include the Banking Law 1992
(amended in 1998), Company Law 1995, Capital Market Law 1995, Antimonopoly Law
1999 and the Oil & Natural Gas Law 2001. Adat law is less conspicuous. However,
some adat principles such as "consensus through decision making (musyawarah untuk
mufakat) appear in modern ndonesian legislation. www.llrx.com)

The ierarchy of Law

The criminal justice system follows the basic principles of law. One of the
principles states that there is a hierarchy of law or a law that governs other laws. Not all
laws are created equal: some laws a7e supe7io7 to othe7 laws. The supreme law is
the basic and paramount law to which other laws must conform and to which all
persons, including the highest officials of the land must defer Cruz, 1996). Hence,
criminal law shall follow and should not be contradictory to it.

n the Philippines, the highest prevailing law of the land is the 1987 Philippine
Constitution which repealed previous constitution (1973, 1935 and Malolos
constitutions). Our constitution created the Philippine Senate and Congress which is the
legislative branch of government. Following the constitution in degree of hierarchy are
the statutes enacted by legislative bodies. Statutes then take precedence over the
mplementing Rules and Regulations (RRs), which are written by
agencies in the Executive Branch to put the statute into force.

n the current ndonesian law, the hierarchy of legal norms
is regulated in Ketetapan MPR No. Tahun 2000 tentang
Sumber Hukum dan Tata Urutan Peraturan Perundang-
Undangan or MPR Decree of 2000 on the Source of Law and
Hierarchy of Laws. The basic hierarchy includes:

a. Undang-Undang Dasar (UUD) or the 1945 Constitution;
b. Ketetapan Majelis Permusyawaratan Rakyat or the
"Decree of the People's Representative Assembly;
c. Undang-Undang or the "Laws;
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d. Peraturan Pemerintah Pengganti Undang-Undang or PERPU or the "a Law in

Lieu of a Law or an "nterim Law;
e. Peraturan Pemerintah or the "Government Regulation;
f. Keputusan Presiden or the "Presidential Decree; and
g. Peraturan Daerah or the "Regional Regulation.

To understand modern ndonesia's legal system, some background must be
given regarding the ndonesian constitutional structure. ndonesia is a unitary republic
established pursuant to the constitution declared at independence, Undang Undang
Dasar. During the 32-year period when Soeharto was in power, the 1945 Constitution
was never amended. After his resignation in May 1998, the 1945 Constitution was
amended four times: October 1999, August 2000, November 2001 and August 2002.
Among other things, these amendments deal with far-reaching issues such as
limitations on the powers and term of office of the President; decentralization of
authority from the central government to provincial and regional governments; and the
creation of additional constitutional bodies such as the House of Regional
Representatives (Dewan Perwakilan Daerah) and the Constitutional Court (Mahkamah
Konstitusi). Proposals for future amendments, some of which deal with equally weighty
matters, are currently being discussed.

Indonesian Government

The 1945 Constitution provides for a number
of constitutional bodies. Two of the most important
are the People's Consultative Assembly (Majelis
Permusyawaratan Rakyat or MPR) and the House
of People's Representatives (Dewan Perwakilan
Rakyat or DPR). The DPR is 500-strong and
consists of elected and appointed representatives.
ts main function is to make legislation and hold the
President and his ministers accountable. The DPR
meets during sessions scheduled throughout the year. The MPR currently has almost
700 members comprising all the DPR members, appointed individuals representing the
provinces, and other nominees. Constitutionally, the MPR is the supreme state body.
Only the MPR has the power to amend the Constitution. t meets more infrequently,
typically on an annual basis (constitutionally, it must meet at least once every five
years). t issues policy statements in the form of resolutions (ketetapan) as well as the
broad outline of state policy (Garis Besar Haluan Negara or GBHN). The country's
overall economic plan is included in the GBHN.

Whereas the MPR previously elected the
President and Vice-President, recent constitutional
amendments stipulate that the President and Vice-
President are to be directly elected by the people.
The first direct elections for the presidency and
vice-presidency took place in 2004. Presidential
powers have also been circumscribed to some
extent by recent constitutional amendments. Also
pursuant to these amendments, a person can only
be elected as President or Vice-President for a
maximum of two consecutive terms of 5 years each. Nevertheless, the Presidency is
still a powerful position in that the President is the head of state and head of
government as well as the supreme commander of the armed forces.


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Creation of the Law

Laws are made by joint agreement between the DPR and the President. nterim
Laws are made by the President. Government Regulations are made by the President.
Regional Regulations are made by joint agreement between the Head of the Regional
or Local Government and the Regional House of Representatives (the "DPRD). To
understand the legislative system in ndonesia emphasis must be made on the review of
peraturan perundang-undangan or laws that bind the public. Undang-Undang is the
highest law in the hierarchy of peraturan perundang-undangan. t can determine
applicable penal, civil, or administrative sanctions. t is also a form of law that can
immediately apply to and bind the public. Every Undang-Undang is enacted through
three phases:

a. Preparation of a bill, essentially the researching and drafting of the bill;
b. Elaboration and approval of the bill, essentially the discussions held between
the DPR and the President to reach a consensus, and
c. The enactment.

After a bill is passed by both the DPR and agreed by the President, the President
must sign it. To ensure the President's power to veto a bill is not absolute the MPR
amended the Constitution to stipulate that after 30 days should the President fail to sign
the bill, the bill would self-enact and automatically become Law.

Indonesian Laws

A complete understanding of the criminal justice
system must always start with the grasp of the laws to
which the system follows. Laws in ndonesia are divided
into different branches: onstitutional, Adat o7
.ustoma7y, Islami., ivil and 7iminal laws. Just like in
our country, these laws intertwined with each other and
affect the methods of application and decision making of
the persons under each of the pillars of criminal justice.

onstitutional law is a set of rules that 7eulate
and ove7n the organization, relationship, and interaction
of the institutions of the State both vertically and
horizontally. However, an alternative definition often noted
in ndonesia is that of Oppenheim and Van Volenhoven
that is constitutional law as the law of States in hiatus
mode. As an organization ndonesia is a Republic based
on the sovereignty of its people. The primary goals of the
State are:

a. to protect all ndonesian people;
b. to advance the general welfare of the people;
c. to raise educational standards, and
d. to contribute in maintaining world order based on the principles of
independence, eternal peace, and social justice.

n order to satisfy these goals the Republic of ndonesia has adopted a basic set
of principles known as Pancasila which simply means the five principles. These
principles are:

a. a belief in one God;
b. a just and civilized humanity;
c. the unity of ndonesia;
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d. socialism that is led by wisdom with conference/representation; and

e. social justice for all ndonesians.

As mentioned, the constitution is the supreme to which all laws must conform.
Anything that does not will be unconstitutional and therefore inapplicable and
unenforceable.

Adat law ("adatrecht in Dutch), the law of the archipelago was dominated by the
.ustoma7y o7 adapt p7a.ti.es of the indigenous (native") populations. ndonesia is a
country with a very rich and diverse cultural history. The diversity of and between
cultures is enhanced because of the
physical nature of the Republic an
archipelago. The ndonesian archipelago
consists of thousands of islands and
hundreds of different ethnic groups,
each with their own laws and customs.
Consequently, there is no single Adat or
customary law that is common to the
whole of ndonesia. Adat law is not easy
to define because of the breadth and
variety of legal principles between
groups Ter Harr defines Adat law as
decisions made by the law enfo7.e7
within the relevant society. Decisions in Adat law include not only decisions made by
judges, village leaders, and religious leaders but also decisions made by the village
assembly. Adat law itself can be in either statutory or non-statutory forms. However, the
reality in ndonesia is that Adat law is predominantly non-statutory. All Adat law is
unique. Adat law developed according to the needs of each community (adat society).
There are 3 types of adat society that are territorial in structure:

a. Village society includes groups of natives who live by the same principles,
ways of life, and have the same beliefs. The community is fixed, remaining at the
same location, and is governed by a village chief;
b. District society comprises of a number of village societies of the same
adat that live within the same district but with each community retaining its
independence. As noted earlier each village society will retain its own
organizations and structures but remain united under the district society in that
singular village communities cannot be separated from the whole.
c. Village union society is formed on the basis of cooperation between the
district societies that are located within the same adat territory. The aim of the
cooperation between district societies is to work together and create a good and
prosperous adat society where all activities are undertaken and completed in the
best interest of the adat society as a whole.

Before the unification of laws it is important to note that adat law was the only
source of law for and among ndonesian natives. The introduction of slam to the
archipelago through trade and other activities
with middle-eastern merchants and
emissaries, particularly to the islands of
Sumatra, Java, Borneo, and the Celebes
allowed for adat law to be influenced by
slam. The Acehnese, located at the northern
most tip of the island of Sumatra, based their
adat law specifically on the principles and
tenets of slam. slam has exerted a similar
influence over the adat law of West Sumatra
as well.
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The major areas where Adat law differs from other laws in the ndonesian legal
system are:

a. Marriage law
b. nheritance law
c. Land law
d. Law of Delict

Islami. law is often stated to be universal in nature. This is because in part the
law constitutes a basic tenet of the religion. Theoretically, slamic law by its very nature
should be applied to Muslims wherever they may reside and irrespective of any
nationality they may hold. This is in
contrast with National law or the
applicable law of individual States
regulating and governing the
behavior of its citizens. slamic law
entered ndonesia with traders and
emissaries from neighboring slamic
sultanates and spread peacefully
throughout the archipelago. The
Dutch colonial government continued
to allow this peaceful spread of
slamic law in ndonesia. Notably the
Dutch colonial government even
arranged and published a resume
(compendium) about slamic
marriage law and the slamic
inheritance law that was to be used
by the ndonesian court system to
resolve disputes among Moslems.
Even during the period of British
colonial rule this situation did not
change as Thomas Raffles stated
that the Koran formed the general
law of Java. slamic law is a law that
finds its sources from the following:

a. Al-Qur'an is the holy text that contains the written statements of Allah's vision
as given to the Prophet Muhammad SAW. According to experts, it generally
consists of matters related to faith, rules governing interaction between
people and people with Allah, general behavior, stories of human history,
stories of the future, core principles of science including the basic laws of the
universe;
b. Hadist an authentic interpretation and explanation of the Al-Qur'an of the
Prophet Muhammad SAW. These interpretations and explanations are based
on the statements, actions, and unspoken behavior of the Prophet
Muhammad SAW in spreading slam. The Hadists explains almost all aspects
of life that are regulated in the Al-Qur'an; and
c. Ijtihad is the human investigation and pursuit of interpretation of the
fundamental legal norms contained in the Al-Qur'an and the general legal
norms of the Hadists. This pursuit leads to the formulation of the applicable
law. The person who completes the ijtihad is called amujtahid.

Despite there being no sanctions for non-compliance individuals comply with the
tenets of the law as part of their faith. The binding power of slamic law is equivalent to
the level of each individual Moslem's faith and subsequent acceptance of the law.
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slamic law has a very broad scope and includes not only human interaction with each
other and their community (muammalah) but also the relationship between people and
Allah (ibadah). slamic law is not limited to worldly matters as it also expresses a view of
the hereafter. slamic law does not differentiate between civil law and public law
because it views each as being part of the other. The parts of slamic law are:

a. Munakhat (private law) which includes marriage and divorce law and the
consequences of each.
b. Wirasah (inheritance law) which includes the method by which property is
inherited.
c. Mu'amalah (trade law) which includes all matters related to the regulation of
property and rights over property with respect to trading, leasing, and other
agreements, among others.
d. Jinayat/'Ukubat (.7iminal law) which includes all criminal regulations where
there is a relevant threat of punishment either as determined by the Al-Qur'an
(jarimah hudud) or by the relevant authority (jarimah ta'zir).



e. Al-ahkam as-sulthaniyah (constitutional law) which includes the regulation of
all matters related to governance such as the Office of the President, Central
and Regional government relationships, soldiers, and taxation, among others.
f. Siyar (international law) which includes the regulation of all matters related to
war and peace as well as relations between States.
g. Mukhasamat (legal proceeding)

ivil aw is largely influenced and based on the Dutch civil
code. The basis for all private law applicable in the European group,
and former colonies of the European Group, has been the Dutch Civil
Code (Burgelijk Wetboek Kitab Undang-
Undang Hukum Perdata) of 1848. Subsequent
amendments to the Dutch Code were also
incorporated into the Codes for ndonesia as
well based on the principle of concordance.
Following independence, the principle of
concordance was abandoned, and was a
direct consequence of the recently acquired
independence of the State. ndependence
gave rise to a desire to ensure that ndonesia
was not merely free of the Dutch Colonialists
but also free from Dutch influence in all of the recently
independent nation's institutions. t can be fairly stated that
since independence legislative development in ndonesia has
9f

generally not followed the Dutch model. Nevertheless, there remain many remnants of
Dutch law within ndonesian laws and a movement to modernize and ndonesianize law
has developed since independence despite the deviations between ndonesian and
Dutch codes becoming more pronounced than ever before. One of the major criticisms
of the continued existence of Dutch laws within the ndonesian codes is that despite
claims that the laws were drafted to maintain peace and order, it is clear that the
primary purpose was to protect the interests of the Dutch colonialists. Therefore, any
maintenance of elements of Dutch law in the ndonesian codes is clearly contrary to the
tenets of the ndonesian Revolution. Nevertheless, it was quickly realized that the
revocation in its entirety of all Dutch influenced ndonesian law would lead to chaos as
the new legislation had not been drafted. Therefore, in order to avoid the legal vacuum
that uniform revocation would cause, all laws and institutions valid at date of
ndependence would continue until such time as they were revoked and replaced.

The ndonesian Civil Code contains four books that regulate all private law
matters:

a. ook One titled ndividual, regulates all aspects concerning the enjoyment
and loss of civil rights, assets and the distinctions between them, residence or
domicile, matrimony, the rights and obligations of spouses, legal community
property and management thereof, prenuptial agreements, community
property or prenuptial agreements in the event of second or further marriages,
the division of assets, the dissolution of marriage, separation from bed and
board, paternity and the descent of children, the relationship by blood and
marriage, parental authority, amendment and revocation of support
payments, minority and guardianship, emancipation, and conservatorship.

b. ook Two titled Goods, regulates all aspects concerning assets and the
distinctions between them, possession and the rights resulting there from,
ownership, the rights and obligations among owners of neighboring plots of
land, the rights and obligations of spouses, servitude, the right to build, the
right of tenure by long lease, land rent, use of proceeds, use and occupation,
succession by demise, last wills, executors of last wills and managers, the
right of deliberation and the privilege of estate
description, the acceptance and rejection of
inheritances, estate division, ungoverned
inheritances, priority of debts, pledges,
mortgages.

c. ook Th7ee titled Contracts, regulates all
aspects concerning contracts in general,
disputes arising from contracts or agreements,
disputes arising by force of law, recision of
contract, sale and purchase, exchange,
granting and acquiring leases, agreements
regarding the performance of services,
partnerships, legal entities, gifts, deposits,
lending for use, loans for consumption, fixed or
perpetual interest, aleatory agreements, the
issuance of mandates, guarantees, and
settlement.

d. ook Fou7 titled Evidence and Procedure, regulates all aspects concerning
general evidence, evidence by witnesses, inferences, confessions, legal
oaths, and Procedure.

9f

7iminal law is one of three systems of law in operation since the nineteenth
(19
th
) century, the other two being a system of European-derived commercial codes and
a civil law based on customary law (adat), which included slamic law (syaria"). t is the
only one of these three systems that was essentially codified and applied uniformly
throughout the national territory.

Prior to January 1918 the
ndonesian Criminal Legal System
was divided into a dual system
containing two distinct penal codes;
one for native ndonesians (from
January 1873) and one for
Europeans (from January 1867).
The ndonesian Criminal Code or
Kitab Undang-undang Hukum
Pidana (the "KUHP) and also
known as Wetboek van Strafrecht,
which is in essence the Netherlands
ndies Criminal Code, came into
force in 1918 and remained valid
after ndependence in accordance with the Transitional provision Articles of the
Constitution which state that, all regulations in force at the time of ndependence are
declared to remain valid unless or until they are such time as they are replaced in a
manner prescribed by the Constitution; namely, Statute (Article Transitional
Provisions). Evidently this transitional provision was to ensure that there was no legal
vacuum in the intervening period between initial independence from the Dutch and full
independence of ndonesian institutions and the legal system. t incorporates certain
amendments promulgated by the revolutionary government in 1946 and since 1958 it
has been applied uniformly throughout the Republic of ndonesia.

The KUHP qualifies two types of criminal behavior:

a. Offen.es can be described as misdemeanor crimes where the applicable
criminal penalty is a fine. An example of this type of criminal behavior is a
driver who does not have a driving license when he or she drives a car or ride
a bicycle at night without a lamp.

b. 7imes are defined as felonies or serious criminal behavior such as murder,
abuse, theft, and robbery, among many others. Crimes can be further
distinguished into:

1. Crimes or Felonies committed aainst the ove7nment and
ove7nment institutions these would include such crimes and
felonies as insubordination; subversion; condemnation of the President
or desecration of State symbols (national flag); tax delinquency, or a
crime committed against a government official while they are on duty.

2. Crimes or Felonies committed aainst humanity these would
include crimes against the right to life such as murder; abuse; crimes
against the right of freedom; kidnapping; crimes against human dignity;
crimes against property.

This discussion of the ndonesian criminal legal system will explore the principles
and theories of the system. The first principle is the legality or validity principle as stated
in Article 1(1) of the Criminal Code or KUHP. This principle allows at least three
possible consequences to occur, namely:
9f

a. An act cannot be punished if at the time of the alleged commission of the act
it was not a crime - nulla peona sine lege nula poena sine crimene nullum
crimen sine poena legali;

b. The criminal law and statutes cannot be enforced retroactively an exception
exists where the alleged crime is committed in a transitional period between
laws where the most favorable statute or law to the benefit of the accused
shall be applied therefore if the previous law is more favorable then it will be
applied in spite of any non-retroactivity principle; and

c. Analogy and interpretation are not permissible in criminal law.

n order to determine the validity of the KUHP and its subsequent application with
respect to an alleged offence or crime, there are four principles applied, namely:

a. Te77ito7ial P7in.iple which specifies that the KUHP may be applied if the
locus of the crime is within ndonesian territory irrespective of the accused's
citizenship;

b. A.tive Nationality P7in.iple which specifies that the KUHP may be applied if
the accused has ndonesian Citizenship;

c. Passive Nationality P7in.iple which states that the KUHP may be applied if
there is an ndonesian legal interest that has been violated; and

d. Unive7sality P7in.iple which states that the KUHP may be applied if there is
a legal interest of all humankind that has been violated.

n addition, here are theories that are applied to criminal law in ndonesia:

a. ausality theo7y simply relies on there being a causal condition between
the effect of the crime and the action. This theory can be applied to materiel
delict (crime) because this kind of crime specifies the effect of the crimes. t
also can be applied to qualifying crimes (door het gevolg gequalifiseerde
delicten).

b. onditio Sine Qua Non theo7y can be separated from Von Bury, a jurist
whose theories are applied to criminal law in ndonesia, that each and every
single action or cause cannot be dismissed in order to determine the
subsequent effect.

The Criminal Law Code contains three chapters:

a. hapte7 I, defines the terms and procedures to be followed in criminal cases
and specifies any mitigating circumstances that may affect the severity of a
sentence;

b. hapte7 II, define the categories of felonies and misdemeanors; and

c. hapte7 III, prescribe the penalties for each type of offense.

The distinction between felonies and misdemeanors generally conforms to the
same distinction that is maintained in Western countries. As noted above, several other
statutes dealing with criminal offenses are also in force, the most significant of which
are laws concerning economic offenses, subversive activities, and corruption. As of
2004, the available penalties for serious offenses included death, life imprisonment,
9f

local detention, and fines. The total confiscation of property is not permitted. Penalties
for minor crimes and misdemeanors include the deprivation of specified rights, forfeiture
of personal property, and publication of the sentence of the court. Punishments listed in
the code are the maximum allowable; therefore judges maintain some discretionary
authority to impose lesser punishments.

A public campaign for the abolition of the
death penalty was launched in 1980 following the
execution of two individuals convicted of murder.
However, the death penalty remains in force and it
seems that this public campaign has made little
headway in the elimination of this type of punishment.
Nevertheless, despite the death penalty being
available to judges, ndonesia has a significantly
small proportion of people of death row. The majority
of people sentenced to death were convicted of drug
related offences. After a long hiatus in executions
ndonesia has recently resumed the execution
process. Widespread complaints regarding the penal
code and a perception that it is not reflective of
ndonesian society or modern criminality as it is an
archaic relic of Dutch Colonialism has been gaining
ground over a number of years. However, the
committee that was established in the early 1980s to overhaul the criminal code to
ndonesianize and modernize it has been largely unsuccessful in its endeavors to do so.
Nevertheless, a recent draft of the new criminal code is expected to reach the floor of
the parliament for debate sometime during the 2004-2009 parliamentary sessions.

Under ndonesian law, certain categories of crime may be dealt with under
purposively d7afted statutes outside the penal .ode. Offenses such as bribery, the
assessment of illegal "levies," and the diversion of public funds for private use by
business figures or officials formed a special class of crime usually handled under a
1955 statute on Economic Crimes (the statute no longer put into effect) and a 1971
statute on Corruption which has been revised as Law Number 31 of 1999 on Corruption
which also has been revised by Law Number 20 of 2001. Political offenses and acts that
ndonesian authorities regarded as threats to national security were usually prosecuted
under Presidential Decree No. 11 of 1963 on the Elimination of Subversive Activities
(the "Subversives Law). This Decree was promulgated as a Law in 1969 and to all
intensive purposes remains in force to this day. The law grants far-reaching powers to
the relevant government authorities in dealing with almost any act that does not conform
to government policy. The law allows for a maximum sentence of death to be imposed
on individuals convicted under its provisions.


9f

Indonesian NationaI PoIice (INP or POLRI)

Introduction

The NP is a large, complex and highly centralized organization. Like PNP, the
POLR was incorporated as one of the armed forces of ndonesia (ABR) in 1964 during
the Sukarno era. Since 1945, POLR's organization has been a national force, financed,
directed, and organized by the central government. The strength of the national police
force in 1992 was around 180,000 operationally and administratively through a regional
command structure, from headquarters in Jakarta. ts main duties were to maintain
public order and security. Like the other armed services, the police considered
themselves to be a social force active in national development, and therefore they
participated in the armed services' civic missions.

MiIitarized PoIice

Prior to the Second
World War, the formal
policing of ndonesia was
the responsibility of the
Netherlands' colonial
administration and was
based upon the policing of
the Netherlands.
mmediately following
independence in 1950 the
NP was formed. Almost all
of the policing traditions
inherited from the previous
colonial dispensation were
scrapped because the ndonesians had formed a strong dislike of all things colonial.
ndonesian police officers, being the only organized armed body in the country, had
been in the van of the fight for independence from the Netherlands and for this reason
formed the nucleus of the emerging nation's armed forces. n consequence, the ties
between the NP and the military became very close and the NP developed an overtly
military style. Under Suharto, steps were taken to militarize the Police by means of the
National Defense Law of 1982 and the Police Law of 1997. By 1993 POLR was
responsible for arresting and interrogating suspects, while a special POLR force was
responsible for dealing with street demonstrations. The BRMOB (Brigade Mobil, Mobile
Brigade), the most militarized force in POLR, was trained to deal with mass
demonstrations. Since the May 1998 upheaval, PHH (Pasukan Anti Huru-Hara, Anti-
Riot Unit) have received special anti-riot training.

The 1997 Law placed POLR within the integral command structure of ABR. As
part of ABR, its systems and command arrangements are identical to those found in
the ndonesian army, navy and air force. The rank structure, managerial arrangements,
pay, conditions and uniform of police officers mirror the military arrangements. All police
officers are trained as soldiers before they receive professional police education. The
chief of the NP is a full general and is legally responsible for all operational policing
issues, but is accountable to the Commander of the Armed Forces (Chief of the General
Staff) for non-operational issues. The NP's military background is reflected in its
policing style, often inflexible and not always taking account of the views of the
communities being policed. ts tendency towards heavy-handed approaches in dealing
with public demonstrations and political gatherings has received critical coverage
internationally. The police role in ndonesia and the style of policing delivered are the
subject of debate within the country.

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CiviIianized PoIice

The same with PNP, on 01 April 1999,
POLR was separated from ABR. But unlike
PNP where it is now under DLG and not DND,
POLR remains under the jurisdiction of the
Defense Minister, General Wiranto. This
statute has attempted to clarify the NP's
accountability and its relationship to the armed
forces. t also gives governmental effect to the
concept of community policing. Senior officers
of the NP have long recognized the need for a
change in policing operational practice to a
more acceptable community-based police
style with a relaxing of the ties to the military.
This was said by the NP to be one of the
primary reasons why the Government of
ndonesia turned to the United Kingdom for
assistance.

Since 1983, the then Chief of the NP
requested developmental help from the United
Kingdom. This request for help was made
because the ndonesians had formed the view that the NP needed to become more
orientated towards policing by consent, to be accountable to the people for its actions
and to develop a community policing style Interview with Mr W Pullinger QPM, formerly
the Director of Overseas Police Studies at the Police Staff College, Bramshill, 1985
1988). n short, it had been recognized that there was a need to transform the NP from
a mainly paramilitary force to a police service that would be acceptable to and
supported by the majority of ndonesians.

Although, philosophically, the need for change is easy to define and articulate,
finding solutions to the problems identified is infinitely more difficult. The degree of
difficulty is increased when solutions have to be found in a problematic operational
environment, where political and military senior figures are unconvinced of the need and
at a time when the economy of the country was fluctuating uncertainly, following a long
period of phenomenal growth. Between 1983 and 1995 British aid to the NP was
provided in two phases with the wider aim of contributing to:

The development of an effe.tive and p7ofessional national poli.e fo7.e in
Indonesia" with the followin .ha7a.te7isti.s:

O Sound internal organisational alignment and functioning
O Coherent/flexible strategies responses
O Efficient use of resources
O Community based approach to policing

To achieve the necessary critical shifts in the political approach to policing,
operational practice and police accountability would have required infinitely more
technical assistance and United Kingdom resources than was applied to this project
over its thirteen years life cycle: 1.8 million or circa 140,000 for each project year. n
consequence, the assistance given was targeted so as to have the best effect upon the
development of the NP for the money invested. The project activities concentrated
upon providing education and expertise to selected officers, who had the potential to
rise to the most influential positions within the NP.

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n the first phase of the project activity centered upon bespoke courses provided
by the Bramshill Police Staff College for ndonesian police officers either at Bramshill or
in ndonesia. n addition, ndonesians attended the Overseas Command Course, the
ntermediate Command Course and the Senior Command Course at Bramshill and this
provided the selected officers with opportunities to study comparative policing in
collaboration with colleagues from democratic countries with a tradition of policing by
consent. From an early stage the need for sustainability was recognized and
considerable effort was devoted towards training tutors so that the education could
continue to be delivered in ndonesia by trained NP personnel.

The second phase aimed to build upon the lessons learned in the first phase.
The strategy was:

O To continue support to the trained tutors;
O To help develop the management training in the NP training institutions;
O To facilitate the establishment of an internal team of change agents under
the umbrella title of the nternal Management Consultancy Unit (MCU);
and
O To continue educating selected officers with good potential in the United
Kingdom at Universities and with various police forces.

The Indonesian State PoIice Statute 1997

n November 1997 a statute was passed into law by the Parliament of the
Republic of ndonesia to make arrangements for the accountability, operations and
management of the NP and to clarify its role in relation to the armed forces command
(ABR). The main purposes of this statute are:

O To give legal effect to the principle of the NP having primacy in respect of
all internal policing issues;
O To articulate the need for all NP officers to operate ethically and to uphold
the basic human rights and freedoms of all citizens;
O To lay the foundations for effective community policing; and
O To clarify the role of the military in internal policing issues.

This important legislation was guided through the drafting and committee
negotiations by the major general responsible for the specialist staff and policy
formulation. The major general had benefited from the ODA/DFD project and was one
of the NP officers who had studied in the United Kingdom. The major general told the
evaluators that his studies of policing methods in the United Kingdom had greatly
influenced the statute's underpinning philosophy. The evaluators formed the view that
many senior officers of the NP welcomed the new statute, the limited civilianization of
policing, and the clarification the statute provides. A subliminal message seemed to
come across that many would have liked the NP to have been placed under a separate
civilian ministry. All the senior officers met during the evaluation expressed the view that
community policing was the way forward. t is also the evaluators' view that the
complete eradication of the armed forces from the police accountability chain would be
a welcome catalyst in the development of community and police partnerships.

The following analysis is taken from translations of the final draft bill and
explanatory paper prepared for the Parliament of ndonesia Translations provided by
Chancery Section of the British Embassy, Jakarta):

a. The 7ole of the poli.e

The purpose of the NP is defined in Articles 2 and 3 as follows:
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A7ti.le 2: "The NP is established to police order, uphold the law and maintain
public peace of life in order to bring into reality public safety and order in the frame of
safeguarding domestic security, enforcing state security and achieving these aims by
respecting human rights.

A7ti.le 3: "The NP conducts the state functions in the field of law enforcement;
providing protection, service and guidance to the public in maintaining order, and
developing public peaceful life in order to bring into reality public security and order.

The primacy in policing matters of the NP is affirmed in Article 5:

A7ti.le 5: "(1) The NP is one of the elements of the ndonesian Armed Forces
and especially has the role of maintaining domestic security; (2) The NP shall become
an integral unit in performing police functions.

The effect of these three statutory provisions is to make the NP totally
responsible for domestic policing issues and the essence of the provisions is effectively
similar to those found in other democratic countries.

The provisions are further strengthened by Article 27:

A7ti.le 27: "n emergency and for the sake of the public interest the NP shall be
allowed to ask assistance of, and use, other elements of the ndonesian Armed Forces.

The explanatory notes prepared for members of the ndonesian Parliament to
enable them to come to an informed decision clarified this article as follows:

"An emergency is defined as a certain situation marked with any disturbance
and/or appropriately expected there will occur immediately any disturbance to the public
order and security, which according to the estimation, the power or ability of the police is
inadequate to handle and/or prevent the disturbance, also including any activity of the
community or government requiring the mobilization of the NP so that the activity can
take place in an orderly manner and safely.

n the realization of the application of another element of the Armed Forces of
ndonesia, the operationaI responsibiIity and authority is vested in the poIice of
the RepubIic of Indonesia." NP senior officers envisage that the military forces will
only be called upon to help to police riot situations and will not be routinely used to
supplement police street strengths - in ndonesia riots can be very ferocious and
frequently result in fatalities. The military will, however, continue to be routinely utilized
where they have unique technical expertise - such as bomb disposal and for providing
resources to help at disasters.
The above provisions should limit the role of military forces to coming to the aid
of the civil power in times of real operational emergencies and to providing services to
the community at appropriate times. The Statute, most importantly, appears to place
military personnel deployed on policing tasks under the operational control of the NP.
The enacted provisions are consistent with those of other democratic countries and only
time will tell whether or not they will bring about a change in the policing of ndonesia.

b. A..ountability

The chain of accountability of the NP leads directly to the President of the
Republic of ndonesia and no provision is made for the NP to be formally accountable
for its actions to the community.

A7ti.le 8: "(1) The President shall hold the highest power on the NP
9f

(2) in implementing the power as referred to in paragraph (1) above, the resident
shall be assisted by the Minister and the Commander. The "Minister is the Minister for
Defence and the "Commander is the Commander of the Armed Forces (ABR). This
Article of the Statute effectively gives the armed forces the 'golden share' in that they
have the power to influence the President in policing issues. However, the General of
the NP is given lead responsibility for the formulation and implementation of policing
policy and the development of the capability of the NP but in both regards he is
responsible to the Minister and the Commander for his actions. A consequence may
therefore be that the General NP will always ensure that his decisions are in accord
with the thinking of the military leaders and the fine words of intent in the Statute
regarding police primacy and independence of action will prove to be hollow. This is
particularly so as the General NP is appointed by the President on the advice of the
Minister and Commander and officers of senior rank in the NP are appointed by the
Commander upon recommendation from the General NP.

The subliminal message received by the DFD evaluators, revolves around
concerns as to how military leaders will interpret their powers: there are ambiguities that
could lead to operational and managerial confusion.

The Statute is, however, on a firmer footing when it deals with individual
accountability of police officers. Articles 23 and 24 set out a framework for ethical
policing and this is very much in keeping with developments which will have been
witnessed in United Kingdom police forces by those ndonesian police officers who
benefited from study sponsored through the ODA/DFD project.

A7ti.le 23: Requires the attitude and behavior to reflect the provisions of a code
of professional ethics, which will be determined by the General of the NP.

A7ti.le 24: Provides for a Committee of Code of Ethics one of whose roles will
be to deal with infractions against that Code.

.. ommunity Poli.in

The Statute gives effect to the
concept of community policing:

A7ti.le 26 (1) & (2):
"Relationship and co-operation of the
NP with both domestic and foreign
bodies, agencies and institutions
shall be built on the basis of
functional relationship principles,
mutual understanding, mutual
assistance (thereby) giving priority to
the public interest.

The domestic relationship and
co-operation shall be built especially with local government elements and institutions
and with the local community by developing participation and partnership.

The Statute has articulated for the first time a commitment from the Government
of ndonesia towards community-based policing and gives support to the community
policing initiatives being taken and the developments which have occurred. These
provisions seem to have gone some way towards meeting the final aim of the
ODA/DFD project's wider objective, i.e - "The development of an effective and
professional national police force in ndonesia.

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OrganizationaI Structure

ommand and ont7ol

The commander bore the title of police chief and was the highest ranking
uniformed police officer in the nation. He was assisted by a deputy police chief. Police
headquarters in Jakarta included a staff and several separate administrative bodies that
handled specialized police functions. The
NP's organizational structure is centrally
driven and headquarters maintains strict
control over subordinate units. t is very
much a traditional military style
administrative structure and almost
mirrors the arrangements of the
ndonesian Army.

The Headquarters units are
responsible to the Chief of the NP
(KAPOLR) for the formulation of policy
and strategy. Specialist units such as personnel and training, organized crime
combating, finance and logistics are based at headquarters.

The police have its own territorial organization jurisdictions, each of which was
known as a Police Regional Command (Polda). Each Polda was administratively
subdivided at the district, subdistrict, and village level. Polda Metrojaya, which had
responsibility for the metropolitan Jakarta area, was subdivided into precincts, sections,
and police posts. t was commonly referred to as the Jakarta Raya Metropolitan
Regional Police.


Each tier of command maintains its own support and administrative structures
and all are reminiscent of army units. Military style discipline is the norm and the
saluting of senior ranks is mandatory. Meetings and presentations are conducted in a
formal militaristic manner.

The following table gives an indication of the police alignment with a traditional
military command structure.




9f

#eions

The next tier consists of the regional commands (POLDA). There are twenty
seven regions which, depending upon size, are commanded by either a major general
or a brigadier general. Their function is to co-ordinate the policing activity in the regions.
The regions are geographically coterminous with the military district commands and the
police regional commander is a full member of the local military management
committee.

Each Polda had its headquarters in a provincial capital and were assigned police
units varying in strength and composition
according to the needs dictated by the
characteristics of the area. These forces
were organized as city police forces or
rural units and were under the operational
command of the Polda commander, who in
turn was directly responsible to national
police headquarters. All police elements
were charged with supporting the local
government in their areas.

Although the police regional
commanders insist that they have primacy
for police matters and that the military only
came onto the streets when requested to
do so by the police commander, the reality may be somewhat different. People
frequently said that the armed forces regularly appeared on the streets of ndonesian
towns apparently carrying out what was described as a policing role.

Divisions

The next tier is that of the police division (POLRES) of which there are 298.
These are based in major centers of population and control and co-ordinate the
activities of several police stations.

Subdivisions

The most important tier is that of the police sub-division (POLSEK) which is
responsible for the delivery of policing services to the people of ndonesia. There are
3400 POLSEK.

Poli.e Stations and Spe.ial Units o7 Teams

Functionally, the police were organized into a number of specialized elements.
The largest of these was the unifo7med poli.e, which included both the general police,
who performed conventional police duties relating to the control and prevention of crime
and protection of property, and the traffic police, who patrolled the nation's roadways
and supervised the licensing of drivers and the registration of motor vehicles.

Also part of the uniformed force was
the women poli.e, who specialized in
social matters and the welfare of women
and children.

Elite units of special police were
employed to enforce order in terrorist
situations beyond the capability of the
9f

regular forces. These units were better armed and more mobile than the general police
and lived in separate barracks under more rigid discipline. These police wore the same
uniform as other police but were distinguished by special badges.

A small unit of Sea and Ai7 Poli.e patrolled the national waters and airspace,
providing tactical aid to other elements by regulating traffic, guarding against smuggling
and the theft of fish, and supplying transport. The unit was also active in disaster relief.
ts equipment included a few helicopters and light airplanes and various small sea craft.

Plain.lothes poli.e were assigned primary responsibility for criminal
investigations, especially in complex cases or in cases involving several jurisdictions.
They also handled forensics, intelligence, security, and the technical aspects of crime
fighting, such as fingerprinting and identification.

One of the oldest National Police units was the Mobile 7iade, formed in late
1945. t was originally assigned the tasks of disarming remnants of the Japanese
mperial Army and protecting the chief of state and the capital city. t fought in the
revolution, and its troops took part in the military confrontation with Malaysia in the early
1960s and in the conflict in East Timor in the mid-1970s. n 1981 the Mobile Brigade
spawned a new unit called the Explosive Ordnance Devices Unit. n 1992, the Mobile
Brigade was essentially a paramilitary organization trained and organized on military
lines. t had strength of about 12,000. The brigade was used primarily as an elite corps
for emergencies, aiding in police operations that required units to take quick action. The
unit was employed in domestic security and defense operations and was issued special
riot-control equipment. Elements of the force were also trained for airborne operations.

Recruitment and Trainings

Police recruits were volunteers. Applicants were required to have at least a sixth-
grade education and to pass a competitive
examination. Other qualifications included
physical fitness and good moral character.
All police officers receive basic military
training before professional police
education. After three years' service as
ordinary police, personnel with junior
secondary-school diplomas could enter
training to become NCOs. Those with three
years' experience as NCOs were eligible
for further training to enable them to
become candidate officers and eventually enter the officer corps.

Continuing training mirrors the in-service training regime of the army, navy and
air force. Advanced training in vocational and technical subjects was available for
regular police, for NCOs, and for officers. Promotions were often based on performance
in advanced education. Most high ranking officers entered the force as graduates of the
Police Division of Akabri. The Police Command and Staff School offered advanced
training to police officers assigned to command units at the sub-district, district, and
Polda level. Training there focused on administration and logistics.

PoIicing StyIe

The NP is a civilian police force with distinct military characteristics. Uniforms
have a similar appearance, although police officers do not wear camouflaged clothing
for day to day duties. The ranks and badges of rank mirror those in the armed forces
and the unit shoulder flashes worn by all police officers are distinctly military. Conditions
of service and promotions are also based on military systems. Although the NP is
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administratively indistinguishable from the three military forces, police officers in

ndonesia are aware that their role in society differs vastly from that of the other forces.
Police officers are proud of their military discipline but maintain an equal pride in their
professional policing role.

The military influences on the NP clearly affect its operations and the policing
style is 7ea.tive and 7iid. There is a tendency, widely reported by the international
media, for them to suppress street disorder, illegal marches and protests in an
unacceptable heavy handed manner and it is frequently alleged that the human rights of
suspects and arrested
persons are ignored. Street
disturbances and riots are
not uncommon in ndonesia
and such events all too
often result in fatalities. The
NP often confronts riots
and ended causing death
and mayhem within minority
communities.
Consequently, police
responses have to be
harder than the NP would
prefer: no police officer
enjoys having to quell
bloodthirsty rioters.

An example of the problem of lethal rioting was in South Suluwesi where
indigenous people had randomly attacked Chinese people and set about destroying
property owned by people of Chinese origins. Deaths occurred and the only way to stop
the disorder, which lasted for days, was by the use of highly trained riot squads
supplemented by troops.

n the general day to day routine, police responses to problems have taken little
account of the views of the ordinary people or the communities affected by police
actions. This is not untypical of policing elsewhere in the world or in developed countries
in the not too distant past. Traditional law enforcement-based policing is usually
characterized by government or police imposed solutions that do not necessarily take
account of community desires or requirements. n consequence, there is a lack of
confidence in the police, an unwillingness to report matters to police officers and a fear
of being seen to help police by giving evidence against criminals. Corruption becomes
endemic and often open hostility and conflict between the community and the police will
be evident The Report of an Enquiry into Disorders in Brixton, London by the Rt.. Hon
The Lord Scarman OBE, HMSO, 1981).

Towards Community PoIicing

The senior officers of the NP, many of whom have studied policing methods in
the United Kingdom, Australia, Canada, France, Germany, Netherlands and United
States of America, are conscious of the need for the NP to move away from its
traditional paramilitary law enforcement-based policing methods towards a more
proactive problem solving operational style, which will be linked to a public service
culture. n other words: .ommunity poli.in.

This development is the product not only of the thinking of educated
professionals but is also supported by ndonesian society Interviews with NGO
representatives and community members in Indonesia during the evaluation). The effect
of globalization cannot be underestimated. Citizens of countries throughout the
9f

developing world are more cognizant than ever of issues that affect their living
standards and of international norms in respect of human rights. Free access to radio
and, via satellite, to television programs from throughout the world has heightened the
awareness of ordinary people towards their rights and the policing of their societies.
lobalization was cited as one of the main drivers of change in ndonesia and, in
particular, the impetus that helped drive through the Police Statute.

The term community policing does not have a standard definition. t is a term
used to describe a policing style which:

O Takes account of local problems;
O Meets the needs and desires of local people;
O Solves problems within communities;
O Treats the community as partner in policing, thereby preventing crime and
disorder;
O mproving the environment and ensuring the safety and security of individuals;
O Enables police to act proactively against patterns of crime and persistent
criminals;
O Enables police commanders to make better use of their limited human resources;
O Enables the police to enforce the law effectively and efficiently and with the
support of the law abiding community;
O Provides avenues of communication between the police and community groups;
and
O Energizes all agencies working within the community.

Community policing is not a discrete program or collection of initiatives added on
to existing police practices but is a holisti. ope7ational style for delivery of all police
services. t follows, therefore, that all police officers have to become community police
officers and that everyone affected by policing understands the philosophy. This is not
an easy change process to undertake and it takes a great deal of determination and
effort from governmental policy makers, community leaders and police officers.

The initiatives that have been taken in ndonesia a7e poli.e led and the MCU
has been an influential facilitator of community policing initiatives. The training provided
during the project enabled a number of influential senior NP officers to study formally
community responses to problems and to witness at first hand community policing in
action in the United Kingdom. When these fo7mal studies we7e .ombined with the
.onsultan.y skills acquired from the United Kingdom consultants, it enabled members
of the MCU to adapt 7itish .ommunity poli.in initiatives to ndonesian
circumstances.

Expe7imental Poli.in Method:
ady Poli.e #e.eptionist



n Malang in Eastern Java, as part
of the community policing and quality of
service initiatives, use7 f7iendly"
7e.eptionists have been introduced to
the public enquiry counter at the Malang
police station. The lady receptionists are
dressed in attractive receptionists / airline
style uniform clothing and they are
intended to make the public feel more
relaxed about visiting a police station to
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make reports. This initiative was facilitated by members of the MCU and is clearly
based on similar models they will have observed whilst on study visits to United
Kingdom police forces.

As part of the evaluation study
the system was tested by a member of
the team, role-playing the victim of a
street robbery which had just
happened in the street adjacent to the
police station. The first step was
actually to get to the public enquiry
counter. This was clearly signed in
Bahasa ndonesian but the victim has
first to present him or herself to the
Provost post. The P7ovost is an
inte7nal poli.in unit, akin to a
military police detachment and, in
addition to its function of ensuring internal discipline within the NP, is responsible for
guarding police stations. ts members, heavily armed and austere, are the antithesis of
the softer image presented by the public enquiry receptionists.

Once admitted to the public enquiry counter the receptionists were polite and
sympathetic. Basic details of the incident were taken and written into a desk journal.
(This was only the fifth incident of the day and the others referred to people visiting to
obtain or renew driving documents.)

Once details had been obtained, the receptionist handed the matter to a police
sergeant in an adjacent office. She took no action to either report the incident or initiate
police action to look for the suspects. n the United Kingdom the public enquiry
receptionists would have contacted the operational unit with basic details so that
immediate action could be taken. The police sergeant then asked a number of
questions about the incident and commenced to make a computer record of the crime.
The questions were basically the same as those asked at the public enquiry counter
and the process was mainly duplication.

The police sergeant, having completed the report, passed the matter to the duty
officer, a lieutenant, who again asked a number of duplicate questions but did arrange
for an investigation to be commenced. The duty officer also handed over a copy of the
computer report. nsurance companies in ndonesia require this so that a victim can
prove that a report of the crime was made to the police it is frequently alleged that, at
this stage, a corrupt payment is more often than not demanded. The matter was then
passed to the CD for investigation. A formal signed statement was made, photographs
of suspects shown and a routine CD investigation launched. Follow up was promised
but only if there was an arrest. Enquiries which do not result in court proceedings are
closed without the victim receiving any explanation of the outcome of the investigation.
The whole process took some forty minutes to complete.

ConcIusions and observations

The main part of the initiative is the introduction of the use7 f7iendly"
7e.eptionists and they are certainly polite and sma7t. However, they are little more
than cosmetic because they have no executive power and the type of person who is
reluctant to enter police stations still has to negotiate the Provost before being able to
make a report. There is still work to be done to improve the efficiency and effectiveness
of the receptionists, who should be able to initiate actions through the duty officer and
have the authority to complete the initial computerized reports. The layout of police
stations needs to be thought through so that the first point of contact for members of the
9f

public is the receptionist rather than the Provost. The system being used is along the
right lines and merely needs some rethinking, e.g. to widen the receptionists' role, and
to bring about a more customer-friendly image in the police station.

Work has been done in conjunction with MCU to develop community based
policing. n Easte7n Java, at the South Su7abaya station, the public enquiry counter is
staffed by police officers in receptionist style clothing. Because of the number of
international tourists visiting the district, all have a reasonable command of the English
language in addition to ability in local languages. There are also complaints and
suggestion letterboxes for the use of members of the public but, as at other locations
where this initiative has been taken, no useful suggestions have been made. The senior
officers we met were very vague when attempting to explain how complaints made
against police officers by members of the public were investigated. Other initiatives
developed concern alarm systems, which are linked to the police station. The
computerized telecommunications-driven system centers on major business premises
and the residences of some of the more influential members of the community.

The police station also covers a vast rural area and there is a system of
traditional policing undertaken by police sergeants who have twenty-four hours
responsibility for the policing of a village community. Their work is a very traditional role
in the community and they are constantly in touch with the people they serve through
traditional and religious leaders and the neighborhood watch network. (Neighborhood
Watch in ndonesia should not be confused with the system common in the United
Kingdom. n ndonesia, it is a lo.al politi.al ove7nment-sponso7ed o7anization,
7athe7 than a .ommunity-d7iven .7ime p7evention initiative to ensure safety and
security in the locality.)

The area sergeants are lightly armed and work alone. They can only successfully
perform their duties by working closely with the people whom they police and live
amongst. The area sergeants' scheme has been in use for many years and owes a
great deal to the former Dutch colonial policing systems but the MCU consultants have
assisted in strengthening the informal links to community leaders.

t is NP policy to finance pilgrimages by area sergeants to Mecca for the Haj. t is
felt that this gives the area sergeants credibility and respect in the predominantly slamic
villages in the coastal regions of East Java, whilst simultaneously helping the police
officers to understand more fully the culture of the people they police.

owa, in South Suluwesi, is a rural area on the outskirts of Unjang Panjang.
The police subdivision (POLSEC) is responsible for a population of 471,000 spread
across an area of 1888 square kilometres. The population is mainly rural and the main
industry is market gardening. 473 police officers are employed in the POLSEC.

The average number of crimes reported to police in any one month is 30 and
this figure seems to be remarkably low, when compared to reported crime rates in the
United Kingdom. A police area there with a similar population and industrial profile
would expect to record in the region of 2000 .7imes eve7y month Ashford, Kent). The
reason given for the low crime rate is that the people either settle the matter themselves
or seek mediation through the t7aditional leade7ship, which still commands respect
and fear. The area is a former kingdom and was not formally administered by the Dutch
who had signed a treaty with the local potentate.

The initiatives taken at Gowa are in the areas of police community relationships.
Quality of service issues have been piloted, with the aim of streamlining service and
making the police station more user-friendly. The station itself was originally too small
and poorly equipped. Former police housing units were converted into operational office
accommodation. The gardens, formerly waterlogged and overgrown, have been
9f

drained, tidied, and planted to make the precincts of the police station presentable and
user friendly.

The public reception area is the Provost post in an open-air area which is clean
and welcoming. n contrast to other areas, the Provost here had been brought into the
customer service equation and this arrangement seemed to work well in Gowa.

A major initiative undertaken is the imp7ovement of the se7vi.e to membe7s of
the publi. who visit the poli.e station. Three colored lines had been drawn on the
footpath so as to direct people to the correct department. The idea is to negate the
requirement for members of the public to be escorted and to reduce the amount of
duplication. One line leads to the office responsible for issuing driving licenses to
members of the public. This line was followed by a member of the Evaluation Team and
he was issued a driving license in some fifteen minutes. The system is .ompute7ized
and photographs are made by video. t is an efficient and simple system. f the system
in place at Gowa is utilized without there being any corrupt interference then there ought
to have been a great improvement in the speed and quality of service given to ordinary
members of the public.

Getting a License and Corruption

n ndonesia, obtainin a
d7ivin li.ense is a majo7 issue. t
can take some two days of queuing at
various offices and it is widely alleged
that ineffi.ien.y and .o77uption are
responsible for the delays. t is claimed
that officials and police officers expect
to receive a corrupt payment at each
stage of the proceedings: those who
either do not pay or make a sufficiently
large donation are ignored. Obtaining a
driving license is frequently the first,
and often the only, contact a person
will have with the NP. t is, therefore, of the utmost importance for the development of
community policing that the issue of driving licenses is efficient, speedy and
unaccompanied by any corruption. t is for this reason that the NP has placed a high
priority on modernizing the issue of such licenses.

n day to day policing there is .lose liaison with t7aditional leade7s, local
government and neighborhood watch. nformal meetings are regularly held and these
provide police with an opportunity to listen to the community views and to communicate
police policy to the people. The Area Sergeants are the key operatives and they are
encouraged by the POLSEC commander to engage in community activities.

The style of management at Gowa appears to be less milita7isti. and the
commander holds meetings with all ranks to explain his policy and to seek ideas from
operational officers. t is claimed that many of the initiatives introduced were formulated
from suggestions from lower ranks and their ideas are shaped by community views.

Gowa is one of 23 sites in ndonesia where local government reform is being
piloted. The .ent7al ove7nment has devolved a number of fun.tions to lo.al
ove7nment and this initiative has drawn the police more into local problem solving and
has added a wider dimension to community liaison. Senior police officers believe that
changes in local government will eventually affect the control of the NP in that it will
become more accountable for its actions to local people.

9f

POINA

A major general, who has benefited from attendance at the Police Staff College,
Bramshill, commands the Weste7n Java Poli.e 7eion. Community policing is central
to the regional operational policy and the major general said that he had applied
knowledge he had gained, whilst studying in the United Kingdom, to developing a
community policing model known as POLLNGA. (This is an acronym for Polisi
Lingkugan Warga, which translates as Police Environment Community). The
MCU has helped with conceptual work and in facilitating the change process.
POLLNGA is an attempt to produce a comprehensive community policing strategy to
pervade all police activity. The aim is to improve communication between the police and
the communities it serves and to deliver an improved quality of service.

The system was observed at Bandung central police station, which is a divisional
headquarters (POLRES). The POLLNGA system of policing is used at all sub divisions
(POLSEK) of Bandung.

POLLNGA in Bandung is built around three priorities:

O mproving the way in which members of the public are received at police
stations;
O Developing the quality of service to the public; and
O mproving the response to public complaints.

As at other locations throughout ndonesia, police station receptionists dressed in
non-police type uniform have been introduced as the first public contact point but, as
elsewhere, any person wishing to make a report has first to negotiate the Provost post.
Also at Bandung the large police station forecourt is used for police drills including riot
squad training and this somewhat militates against the user-friendly image presented by
the receptionists.

There are also improved streamlined procedures for the issue of driving licenses.

The POLLNGA system is attemptin to p7ovide a bette7 and mo7e
.ommunity-7esponsive poli.in system by dedicating individual police officers to
patrols covering distinct communities. The police officer is encouraged to make contacts
with community interest groups, address local problems and to make contacts amongst
members of the public. They also work closely with local government officials and
neighborhood watch officials. n this way policing is targeted to those issues which more
accurately reflect the needs of individual communities. This method of working draws
upon the experiences gained in the United Kingdom by ndonesian police officers who
have observed community policing through "Home Beat In the United Kingdom Home
Beat" officers are assigned to a particular area and have twenty four hour responsibility
for routine police issues) officers and capitalizes upon the ndonesian system of
assigning area sergeants to rural communities.

n some of the more sensitive areas of Bandung community leaders and
members of the public are being encouraged to engage in joint patrols with police
officers. t is claimed that there is now greater confidence in the police and that
communications between community and police have been greatly improved.

To ta.kle .omplaints about poli.in and the individual actions of police officers
confidential post boxes have been established at police stations and in prominent
places within communities so that members of the public can make suggestions or
complaints in confidence. This is a novel idea but no evidence of public use was able to
be shown.

9f

The NP is undergoing reform and is attempting to reconstitute itself as a modern

community based police service. t is proving to be a long haul and a difficult process.
The recent police statute, if honored, provides a basis for the full civilianization of
policing in ndonesia and for the NP to become more accountable for its actions. A start
has also been made in addressing the role of the military in routine police matters. They
are supported by mobile police resources who also cover the beat when the "Home
Beat officer is either unavailable or is off duty.

The moves made towards community policing through initiatives being taken
throughout the country are encouraging. More work, however, is required to educate the
whole of the NP in the ethics and principles of consensus policing.

The assistance provided by the United Kingdom has helped in the process by
providing for selected NP officers an insight into methods of delivering police services,
where human rights are respected, communities are consulted and the highest
importance is attached to quality of service.


9f

The Prosecutor and Prosecution System in Indonesia

Introduction

n the ndonesian
organization of the state,
which is regulated in the
constitution, the Supreme
Court and related bodies
have functions of judicial
authority article 24,
paragraph 1). Pursuant to the
Law on Judicial Authority, the
other bodies comprise of the
police, prosecutor and other
courts article 41, Law No. 4, 2004). n the Law on the Attorney Generals Office, it is
also stipulated that the Prosecution Office is a governmental body that implements state
authority in the prosecution sector article 2, paragraph 1, Law No. 16, 2004).

The Prosecution Office

Based on the above laws, the prosecution office is a ove7nmental body
havin a judi.ative fun.tion. t is the only body with the authority to determine
whether an alleged criminal action can be prosecuted or not. Even though currently
there is a Corruption Eradication Commission that can also conduct prosecutions, in
effect this work is also being done through the prosecutor's office, because the
prosecutors at the Corruption Eradication Commission are recruited from the
prosecutor's office to assist the commission within a certain period of time.

The implementation of state authority over prosecutions is carried out via the
Attorney General situated in the national capital, a high prosecutor's office in the capital
city of each province and the district prosecutor's office situated at the district level
articles 3 and 4, Law No. 16, 2004). Pursuant to the applicable laws, the prosecutor's
office must be free to carry out its tasks independent from any political or other
influence, be it from the executive or legislative bodies or other state authorities.

The prosecutor's office has wide fun.tions and autho7ities as:

1. General prosecutor;
2. nvestigator of specific criminal actions;
3. Representative of the state in civil and administrative cases;
4. Advisor to government agencies on questions of law; and
5. Representative of the public interest article 30, Law No. 16, 2004).

OrganizationaI Structure

A prosecutor is responsible to the prosecutor who in the hierarchy constitutes his
or her direct supervisor. So, prosecutors at the district prosecutor's office are
responsible to the head of the district, the head is responsible to the head of the high
prosecutor's office and that head is responsible to the attorney general article 8,
paragraph 2 and article 18, paragraph 1, Law No. 16, 2004).

ene7al P7ose.ution

Based on the laws in ndonesia, a general prosecution is an act to render a
criminal case before the relevant district court based on the procedures as stipulated in
the applicable laws, accompanied with a request that the case be investigated and
9f

decided by a judge in a court. n the prosecution office, the general prosecutor has
authority to:

1. Accept and verify the case investigation documents from the investigator
and/or supporting investigator;
2. Hold a pre-prosecution inquiry in the event that there is a flaw in the
investigation process, by giving directions in order to correct the investigation;
3. Order or extend detention, and/or change the status of a detainee after the
case is handed over by the investigator;
4. Draft the accusation letter;
5. Hand over the case to the court;
6. Give notice to the accused of the day and time the case will be put on trial,
accompanied by an invitation letter to the accused and to witnesses to attend
the trial;
7. Conduct prosecution in court;
8. Close a case in the public interest;
9. Take any other action within the responsibilities and authority of a general
prosecutor; and
10. Execute the court judgment article 17, paragraph 2, Law No. 4, 2004).

Investiato7

As an investigator generally has authority to:

1. Accept a report from a person on the occurrence of a criminal act;
2. Take first action at the site of the crime;
3. Conduct capture, detention, search and seizure operations;
4. Prepare letters of investigation and seizure;
5. nvite any person to be heard and investigated as a suspect or witness;
6. nvite an expert to assist with the investigation;
7. Stop the investigation; and
8. Take any other actions based on the prevailing laws.

UphoIding of uman Rights

Since the reform period, there has been major development in the human rights
field in ndonesia. Based on the normative guarantees of the constitution, it is clear that
the goal is to have a law-based .ount7y that ua7antees and p7ote.ts human 7ihts
and a state that wants to realize welfare and social justice. Apart from the constitution,
in 2005 the commitment to protect human rights was enhanced by the ratification of the
two basic covenants on human rights, the nternational Covenant on Economic, Social
and Cultural Rights and the nternational Covenant on Civil and Political Rights (via Law
Nos. 11 & 12, 2005).
ProbIems of the Prosecution
However, there are still specific matters pertaining to prosecution that need
attention. This is because 7eulations a7e still weak, so the settlement of human rights
cases is impeded, by, for example:
1. A back and forth of documents being submitted between the National Human
Rights Commission and the attorney general;
2. The attorney general's refusal to investigate human rights violations that
happened in the past; and
3. Authority to recommend the formation of ad hoc human rights courts being
vested in parliament.
9f

Apart from problems with regulations, the enforcement of law and upholding of
human rights are still impeded by the 7esistan.e of a.to7s at ea.h step. These actors
are not only the parties who are suspected of having violated the law but also the law-
enforcement officers who take advantage of the current system. Another impediment is
publi. p7essu7e on law-enforcement and human rights institutions based on ideology
or orders from parties involved in cases.
Lastly, but also importantly, a major problem in prosecuting human rights cases
arises from the inte7nal p7oblems of the p7ose.uto7s offi.e, be they organizational,
technical or human resource-related. n certain cases (processed by the Corruption
Eradication Commission) prosecutors have been proven to have bouht and sold
.ases o7 7e.eived b7ibes from parties. n fact, according to the 2007 survey of
Transparency nternational (ndonesia) the courts and prosecutors are the most
.o77upt bodies as they actively ask for money. Apart from that, the head of the
Supreme Court has criticized the quality of the accusation letters fielded by certain
prosecutors containing weaknesses and incomplete data, causing suspects to go free,
especially in drugs and corruption cases. n one case where a prosecutor incorrectly
referred to the law in preparing the accusation, causing two murder suspects to be freed
under an interim judgment, members of the public demonstrated at the prosecutor's
office and unable to control their emotions ruined parts of the building. Prosecutors
drafting accusation letters and preparing for trial also often suffe7 inte7fe7en.e from
their superiors. The head of a high prosecutor's office in a region may put some
pressure on a general prosecutor to change the manner of conducting the case so that
it will run contrary to fairness and the prevailing laws.
These problems are exacerbated by certain other factors that feature in all law-
enforcement bodies, including the prosecutor's office. These include:
1. Low integrity, little understanding of the practice of law, and little practical
experience in carrying out trial. Therefore, serious attention must be paid to
both the quality and quantity of prosecutors. Currently, their number is not
proportional to the number of cases that they must handle, which contributes
to these difficulties.
2. Lack of coordination between management and lower officers, causing
inconsistency between the heads of district prosecutors offices and high
prosecutors offices in applying policy, especially in corruption and drug
cases.
3. Lack of coordination between prosecutors and police during investigation and
prosecution. Misunderstandings in conducting their duties commonly result in
a back and forth of the case documents with mistakes that are not
immediately obvious, particularly in the investigation of corruption cases.
4. Problems in executing the judgment, caused by differences in perception
between the judge and prosecutor, especially in the wording of the judgment.
Structural problems associated with the prosecution include the following:
1. Currently, there is a dilemma concerning the position of the prosecutors
office in the structure of the state. Pursuant to the Law on the Prosecutor's
Office, the office is a government body that acts for the state authorities in the
prosecution. This position will not become a problem only if in carrying out
duties a prosecutor acts independently and does not suffer government
interference.
2. The Law on the Prosecutors Office does not elaborate on qualifications to
become a prosecutor at successive levels, other than the base requirements.
As a result, the qualification requirements for the attorney general and other
senior prosecutors are low. The mechanism to elect the attorney general and
deputy attorney general is not transparent or accountable and has few
9f

participants. The process is closed and falls under the authority of the
executive, i.e. the president.
3. The promotion and transfer system in the prosecutor's office has not
succeeded in pushing prosecutors with high credibility and integrity into
management positions in the office.
4. Recruitment of prosecutors is potentially affected by nepotism, collusion and
corruption. Prosecutors hold administrative positions even though they don't
have professional expertise and are needed for prosecution activities.
5. The supervision system is not good enough to make objective appraisals of
prosecutor integrity and quality.
Reform and Recommendations
To date, certain reforms have been announced and some implemented to restore
public faith in the work of law-enforcement bodies, including the prosecutor's office.
These were initiated with the statement of the President of the Republic of ndonesia in
commemorating the agenda of the First 100 Days of the ndonesian Bersatu Cabinet,
which in its chapter on Building a Fair and Democratic ndonesia, stipulated that law
enforcement must be made by any state which is willing to build a fair and democratic
atmosphere. n ndonesia, certain efforts to have such atmosphere have been
conducted through various means, especially by enhancing the courts institutions. t is
believed that the enhancement of the court institutions will bring continuous effect which
correlates to the law enforcement and development in other sectors, such as economy.
Logically, the t7adin and the investment will not be developed if the7e is no
.e7tainty in the law enfo7.ement.
n this regard, Presidential nstruction No. 5/2004 on the Acceleration of
Corruption Eradication stipulated the following objectives:
1. To optimize investigation and prosecution efforts against criminal acts of
corruption and impose sanctions against the responsible parties, and save
state monies;
2. To prevent misuse of authority and impose clear sanctions, conducted by the
general prosecutor/law-enforcement prosecutor;
3. To enhance cooperation between the State Police of the Republic of
ndonesia, Development and Money Supervisory Agency, Money Transaction
Analysis and Reporting Center and state institutions related to law
enforcement, and mitigation of state losses resulting from criminal acts of
corruption.
With regards to the above, the Attorney General's Office prepared certain
programs in 2004-2005, so as to:
1. ntroduce the basics for reform of the system and the internal mechanism of
the prosecutors office to enhance the outcomes of its work;
2. Conduct recruitment, promotion, and transfer of prosecutors based on
objective criteria and the activities of the relevant officers (to diminish, put
pressure on and eliminate nepotism, collusion and corruption in the above
activities);
3. Enhance coordination with other law-enforcement bodies in accelerating the
handling of corruption cases and other specific criminal acts;
4. Ensure that in the corruption cases, especially those that cause losses to the
state and obtain public interest, the process is accelerated, from investigation
to prosecution and from prosecution to trial;
5. To review the SP3s (Letters of Order to Stop nvestigation) in corruption
cases done prior to the existence of the ndonesia Bersatu Cabinet.
9f

Apart from the above, 12 reform programs were launched in 2005 in the following
areas:
1. Reform of the organization and work procedure of the Prosecutor's Office;
2. Reform of the organization and work procedure of the Prosecutor's Office's
ntelligence ;
3. Reform of the prosecutor recruitment system;
4. Reform of the prosecutor education and training system;
5. Reform of the prosecutor career development system;
6. Preparation of the minimum standard of prosecutor utilities;
7. Review and development of the budgetary system of the Prosecutor's Office;
8. Budget increase for the handling of cases related to Corruption, Human
Rights, Terrorism, Money Laundering and Stealing of Sea and Forest Wealth;
9. ncrease of the functional benefit for prosecutors;
10. Development of information management system in handling cases;
11. Enhancement of cooperation between the relevant institutions in the law
enforcement of cases having a public interest; and
12. Development of a Controlling System that is transparent and accountable.
The six directives of the Attorney General's Office concerning a reform program
announced on 12 July 2007 represent an important base for bu7eau.7ati. 7efo7m
within the office. The six defined reform programs in the areas of:
1. Recruitment;
2. Education and training;
3. Minimum professional standards;
4. Career advancement;
5. Business practice; and
6. Code of conduct and supervision mechanisms.
Bureaucratic reform is the main avenue for the office to comprehensively improve
its work at an organizational level, and includes but is not limited to improvements in the
reward system and officers welfare that should enable the prosecutors to perform their
duties with hih inte7ity, a..ountability and dinity.
According to the deputy attorney general at the launch of the reforms on 18
September 2008, they aim to:
1. Recover public trust in the Attorney General's Office and improve the public
prosecution's image as a law-enforcement institution with high levels of
professionalism and integrity;
2. Enable public access to information on corruption-related criminal cases and
other cases that the office handles;
3. ncrease the amount of money returned to the state treasury, derived from
savings and penalties;
4. ncrease remuneration for public prosecutors and staff of the office;
5. Decrease the number of individuals generating a negative public perception
towards the office;
6. mprove the quality of service to the public; and
7. Develop a standard operating procedure with some breakthroughs regarding
the case-handling process, but still in accordance with existing laws.
There are also several important issues that will become subjects of policy in the
future that will have a positive effect on the prosecutor office, which are:
1. n order to avoid conflicts of interest and misuse of the prosecutor's office by
the executive, the office should remain part of the government, but to
9f

guarantee its independence the attorney general must be nominated and

appointed by the president with the approval of the House of Representatives,
and in conducting prosecution duties, prosecutors must be independent;
2. Good and strict criteria to determine the person that will become the attorney
general and deputy must be drawn up so that these posts are filled with
persons of high credibility and accountability. The mechanism to elect the
attorney general must also be open, transparent and accountable, so that the
public will be aware and involved and can give input on the credibility and
integrity of the prospective attorney general. n addition to that, an
independent team will give input to the president and receive input from the
public on the candidates, through which nominations also will be able to be
made;
3. Prosecutors should not fill administrative positions. Administrative
professionals must be recruited for these posts and the capacity of the current
administrative officers must be enhanced;
4. Parties outside the prosecutor's office must be involved in the recruitment
process, such as persons from the universities who can assess potential and
ensure that academic results will be the basis for recruitment. Other than that,
recruitment must be conducted transparently and disclosed openly, supported
by a good integrated computerized system so as to diminish the intensity of
meetings between the prospective party and the office;
5. The examination of the accusation and prosecution must be conducted in a
more effective way.

9f

The Court

One court of general jurisdiction and
three courts of limited but special jurisdiction
(religious, military, administrative court) are
outlined in Law No. 4/2004 on Judicial
Powers (Undang-undang Pokok Kehakiman
tahun 2004).
ierarchy
General information such as name and address of the Supreme Court as well as
Court of Appeals and Court of First nstance of general jurisdiction and special
jurisdictions, are listed under "Direktori Pengadilan window at the Supreme Court
official website http://www.mahkamahagung.go.id/.
Sup7eme ou7t (Mahkamah Aun)
The Constitutional Court and the Supreme Court form the judicial branch of the
government. Elaborating the 1945 Constitution, the Law No. 14/1985 as amended by
Law No. 5/2004 states the powers and organization of the Supreme Court.
While the Constitutional Court has the power to determine constitutionality of Law
(Undang-Undang), the Supreme Court has power of judicial review over legislative
products or legislation lower than the Law.
t has oversight over the court of appeals and courts of first instance. t can hear
a cassation appeal (kasasi) which is a final appeal from these lower courts. t can also
conduct a case review or reexamination of a case (Peninjauan Kembali) if certain
requirements are satisfied. t has supreme jurisdiction covering general court and
special courts.
Supreme Court judges are selected by the Judicial Committee, appointed by the
People's Representative Council (Dewan Perwakilan Rakyat), the legislature, and
confirmed by the President. There are 60 supreme justices and one of them serves as
chief justice.
ou7t of Appeals
1. High Court (Pengadilan Tinggi)
The appeal from the District Court is heard before the High Court. There is one in
each province and special region.
2. Religious High Court (Mahkamah slam Tinggi)
t hears appeals from Religious Court.
3. Administrative High Court (Pengadilan Tinggi Tata Usaha Negara)

Up to now, there are only four; one in Jakarta Special Region and the rest are in
Eastern Jawa, Southern Sulawesi, and North Sumatra.

4. Military High Court (Pengadilan Militer Tinggi)
9f

The only one Military High Court is in Jakarta.

ou7ts of Fi7st Instan.e

1. District Court (Pengadilan Negeri)

Each district court exercises the power of Courts of General Jurisdiction
(Peradilan Umum). t is a court of general subject matter jurisdiction and each has
territorial jurisdiction (or venue) that covers a district (Kabupaten or Kotamadya).
Mandated by the 1945 Constitution, the Law No. 2/1986 as amended by Law No.
8/2004 on Courts of General Jurisdiction (Undang-undang Peradilan Umum) governs
the power, judges, and administration of District Court and High Court.

Within a District Court's general jurisdiction, there can be specialist courts that
hear cases based on the particularity of the area or issue of law, and a specialist court
that hears cases based on the age of the actor in a criminal case. Those specialist
courts are:

a. Commercial Court (Pengadilan Niaga);
b. Labor Court (Pengadilan Hubungan ndustrial);
c. Human Rights Court (Pengadilan Hak Asasi Manusia);
d. Court for Crime of Corruptions (Pengadilan Tindak Pidana Korupsi),\;
and
e. Children's Court (Pengadilan Anak).

2. Religious Courts of First nstance (Pengadilan Agama)

3. Administrative Courts (Pengadilan Tata Usaha Negara)

4. Military Court of First nstance (Pengadilan Militer).

Each court exercises limited and special subject matter jurisdiction. Additionally,
jurisdiction of Religious Court and Military Court is also based on certain personal
attribute of the parties. With respect to Religious Court, it is the slamic religion. With
respect to Military Court, it is membership in the military.

Jurisdiction of a Religious Court is limited to family law (marriage, divorce,
reconciliation, alimony),
inheritance, wakaf(religious
foundation), and shadaqah
(religious donation or tithe).

However, Religious
Court has non-exclusive
jurisdiction. Parties can apply
to District Courts for
adjudication on the basis of
national civil law or adat law.
The Law No. 7/1989 as
amended by Law No. 3/2006
on Religious Courts (Undang-undang Peradilan Agama) governs the jurisdiction,
judges, and administration of Religious Court. http://niriah.com/dl.php?uu=3-Th-
2006.pdf and http://www.pdf-search-engine.com/undang-undang-nomor-7-tahun-1989-
pdf.html)

9f

Pursuant to Law No. 5/1986 as amended by Law No. 9/2004 on Administrative

Court (Undang-undang Peradilan Tata Usaha Negara), the subject matter jurisdiction of
an Administrative Court is concrete/actual, particular and final decision of administrative
body of the executive branch. Within the jurisdiction of Administrative Court, there is
specialist court to settle dispute over taxation. Said specialist court is Tax Court
(Pengadilan Pajak). http://hukum.unsrat.ac.id/uu/uu_9_04.htm and
http://www.theceli.com/dokumen/produk/1986/uu5-1986.htm)

Types of Courts

Judicial authority is implemented by the Constitutional Court and the Supreme
Court and courts under the Supreme Court's authority. Courts under the Supreme
Court's authority are the:

1. General Court (Pengadilan Umum);
2. ndustrial Relations Court (Pengadilan Hubungan ndustrial);
3. Court of Religion (Pengadilan Agama);
4. Administrative Court (Pengadilan Tata Usaha Negara);
5. Fishery Court (Pengadilan Perikanan);
6. Military Court (Pengadilan Militer); and
7. Taxation Court (Pengadilan Pajak).

GeneraI

Most disputes appear before the courts of general jurisdiction with the Supreme
Court as the final court of appeal and the High Courts (Pengadilan Tinggi) deal with
appeals from State Courts (Pengadilan Negeri). There is state court of first instance in
each district and municipalities that deals with civil and criminal cases involving
ndonesian or foreign citizens.

IndustriaI ReIations Dispute Court

ndustrial Relations Dispute Court is established by virtue of Law No. 13 of 2003
on Employment and Law No. 2 of 2004 on Settlement of ndustrial Relation Dispute.
This court is the higher alternative in settling employment related disputes. The other
alternatives are employment conciliation, arbitration and mediation. This court also acts
as the registrant of the settlement reached using the other means (to give executory
power).

Fishery

The Fishery Court is established by virtue of Law No. 31 Year 2004 on Fishery
and further regulated by Supreme Court Regulation No. 01 Year 2007 on Fishery Court.
The court has the authority to adjudicate fishery crimes which include (i) exporting or
importing fish without health certification, (ii) using illegal means of fishery such as
explosives and chemicals, and (iii) using fishery tools not according to standards. t is
established within the General Court. The first Fishery Courts to be established are
within the General Court of North Jakarta, Medan, Pontianak, Bitung and Tual.

ReIigion

The Court of Religion is established by virtue of Law No. 7 Year 1989 on Court of
Religion as amended by Law No. 3 Year 2006. The court has the authority to adjudicate
matters between slamic people in the field of:

1. Marriage;
2. nheritance, wills, and grants, done in accordance with slamic laws;
9f

3. Wakaf (religious charitable trust) and shadaqah(alms); and

4. Syariah Economy (economy based on the principles of slamic laws).

The judicial authority of the Court of Religion is carried out by the District Court of
Religion located in municipalities and its appellate court, the High Court of Religion
seated in capital of provinces. t is established outside of the General Court. The
Province of Nanggroe Aceh Darussalam which implements slamic Laws has a special
court within the Court of Religion called Mahkamah Syariah holding broader judicial
authority than common Court of Religion which includes those affairs under the
authority of the General Court. Some Courts of Religion have websites in English such
as the Cilacap Court of Religion: http://pa-
cilacapkab.go.id/data.php?tipe=artikel&tgl=20080805052914

State Administrative

This court is established by virtue of Law No. 8 of 1986 on State Administrative
Court, as amended by Law No. 5 of 2002. t is the forum to challenge public
administrative decree, which is defined as a written decision issued by a body or official
of public administration which contains an act of public administration based on the
prevailing laws and regulations, which is concrete (or certain), individual, and final,
which brings legal implications to a person or a civil legal entity.

MiIitary

The Military Court is established by virtue of Law No. 31 Year 1997 on Military
Court. The court has the authority to adjudicate:

1. Crimes conducted by a soldier or other person or position considered as
soldier under the law, or other person determined by the Commander of the
Army and approved by Minister of Justice and Human Rights ("milita7y
.7imes);
2. The Army's administrative dispute; and
3. Civil lawsuit related to military crimes.

The Military Court is established within the Army. t consists of Lower Military
Court, High Military Court, Supreme Military Court, and Military Court in Battle.
Authorities differ based on the ranks of the soldier and the matter being adjudicated,
and also on appellate functions.

Tax

The Taxation Court is established by virtue of Law No. 14 Year 2002 on Taxation
Court. The court has the authority to adjudicate taxation disputes between taxpayer and
taxation authority, i.e., Directorate General of Taxation, Directorate General of Customs
and Excise, Governors, Mayors, or other tax authorities. Matters subject to the taxation
court's jurisdiction include disputes arising from tax decisions and lawsuits over Tax
Collection by Compelling Letter (Penagihan Pajak dengan Surat Paksa). The Taxation
Court is seated in the Capital. t is the first and last resort for taxation disputes.
http://www.setpp.depkeu.go.id/Ind/Board/Profile.asp)

ConstitutionaI

The Constitutional Court was first established on November 9, 2001 as a
consequence of the third amendment to the Constitution of the Republic ndonesia.
Unlike the Supreme Court, the Constitutional Court is not an appellate court. ts decision
is final and binding and, therefore, cannot be challenged.

9f

Article 24C of the Constitution states that the powers of the Constitutional Court
are first, to review the law made against the Constitution; second, to resolve disputes
between state institution; third, to resolve dissolution of political parties; fourth, to
resolve disputes over election results; and fifth, to rule on president's impeachment. n
relation to the process of impeachment, the jurisdiction of the Court is only limited to the
issue of law on whether the President and/or the Vice President is guilty in doing the
acts prohibited by the Constitution. The decision on whether to remove the President
and/or the Vice President is still under the authority of the People's Consultative
Assembly.

There are 9 (nine) Constitutional Court judges, in which 3 (three) are nominated
by the Supreme Court; 3 (three) are nominated by the House of Representatives, and
another 3 (three) are nominated by the President. All of the judges are appointed
through a Presidential Decree and all will serve in one panel in each case before the
Court. The term of office for judges is 5 (five) years and each one of them can be re
elected for another 1 (one) term.

The presence of the Constitutional Court has greatly affected ndonesia in
general. Previously, laws established by the legislative institution cannot be challenged.
The establishment of the Constitutional Court has made it possible to annul the entire
law or part of its substances if its making or substance is contradictory to the
Constitution. This serves as a check and balance of a political organ such as the
Legislative body.

LegaI Profession

Since the enactment of Law No. of 2003 on Advocate ("Advo.ate aw), the
existing 8 bar organizations were forced to be merged. The single bar association is
named Perhimpunan Advokat ndonesia or PERAD (ndonesian Advocate Association)
www.peradi.or.id). There have been law suits and litigation challenging the legitimacy
of Peradi, one of them is a challenge from the Congress of ndonesian Advocate
(Kongres Advokat ndonesia or KA). Under the Advocate Law, the following are the
requirements to be admitted as an advocate:

1. ndonesian National;
2. Reside in ndonesia;
3. Not having the status of civil servant or public officer;
4. At least 25 years of age;
5. Graduated with a bachelor of law degree (qualified degree);
6. Having passed the bar exam;
7. Two years of internship in law office;
8. Never convicted of crime with 5 years or more penalty;
9. Good behavior, honest, responsible, and having intact integrity.

n addition to the above, PERAD also broadens the internship requirement such
as having involved or report on at least 2 civil cases and 1 criminal case.

Foreign lawyers are not allowed to practice ndonesian law. They may work in an
ndonesian law firm to provide advice on foreign law only. However, this rule is not
strictly upheld. Many foreign lawyers are working in ndonesia and many are
representing international firms. They must also comply with several requirements set
by the Ministry of Justice, lastly by Minister of Law and Human Rights Decree No M.11-
HT.04.02 of 2004 on Requirements and Procedure in Employing Foreign Advocate and
Duty to Provide Free Legal Services for Education Purposes and Legal Research.

9f

The Correction System

Introduction
ndonesia's 441 prisons
were administered by the
Department of Corrections
within the Department of Justice
and included three categories of
prisons based mainly on the
number of inmates they could
hold. The nine largest, or Class
prisons, held prisoners
sentenced to life imprisonment or
death.
istoricaI Background

The history of corrections in indonesia includes three different correctional
systems.

1. First, the 'Kepenjaraan system' that developed during the Dut.h .olonial
government;
2. Second, the prison system which existed under the Japanese military
government; and
3. Third, the 'Pemasyarakatan system' which has developed since 1964, when
the ndonesian government began to abandon the system that it had inherited
from the Dutch.

Pemasyarakatan System

The word 'Pemasyarakatan' relates to 'Pengayoman', the Banyan tree, and
means re-socialization, that is, healthy re-entry into the community Directorate General
of Correction 1980).

The Pemasyarakatan system as a symbol
of the new era of the treatment system in
ndonesia differs from the Kepenjaraan system in
that the latter is based on the classical, or
retributive, philosophy of punishment. The
Pemasyarakatan system, by contrast, is based on
the utilitarian philosophy which has three basic
elements: prevention, deterrence and reform
Cross 1981). However, among ndonesian
leaders and scholars, it is popularly known as the
correctional system based on the ndonesian state
philosophy, Pancasila, which lays down five basic
principles:

1. belief in God;
2. Humanity;
3. Nationality;
4. Democracy; and
5. Social justice.

The Pemasyarakatan system introduced 'treatment' into the ndonesian
corrections system. t consists of ten principles Atmasasmita & Soema Di Pradja 1974):
9f

1. To provide prisoners with the ability to perform proper and useful roles in the
Community;

2. To refrain from maltreatment of prisoners in deed or words. Prisoners shall be
subjected to no heavier suffering than the temporary denial of freedom to
move in the community;

3. To guide prisoners towards reform and rekindle in them a positive sense of
community living;

4. The state shall not be instrumental in prisoners' deterioration from pre-
admission circumstances. This principle requires strict segregation of adult
from juvenile prisoners and felon from misdemeanant;

5. Loss of freedom must not mean the total isolation of prisoners from the
Community;

6. Prisoners shall not be given jobs that benefit only the institution or the state.
Their employment should develop their skills so that they may play an active
role in national development;

7. The educational aspect of correctional treatment must be Pancasila-oriented;

8. Prisoners must be treated with respect as human beings;

9. Prisoners shall suffer punishment only in the form of loss of freedom; and

10. All physical facilities of corrections must conform to the rehabilitative and
educational function of the Pemasyarakatan system.

The founder of the Pemasyarakatan believes that by
those principles, the system would achieve its main goals which
are:

1. To develop prisoners as fully integrated persons or
'manusia seutuhnya' who will refrain from re-violating
the law;
2. To encourage prisoners to become active, productive
and useful to the community;
3. To allow prisoners to pursue temporal as well as
spiritual happiness Directorate General of Correction
1980).

However, scholars and most prison officials seem skeptical concerning its ability
to achieve these goals. n my opinion, this view is reasonable for the following reasons:

1. First, the 'gestichten reglement' (Ordinance 1971 No. 708) of the Dutch
colonial government has not been revoked, despite the fact that it does not
comply with Pemasyarakatan principles. The Pemasyarakatan system is
deeply influenced by humanitarian principles and tries to apply the treatment
approach in handling prisoners. By contrast, the 'gestichten reglement' that
still applies at present is based on the retribution principle and its purpose is
principally to maintain law and order within the prison. Accordingly, the
'gestichten reglement' approach involves harsh sanctions in achieving its
purpose (Atmasasmita 1981).
9f

2. Second, the enforcement of the 'gestichten reglement' brings about ambiguity
and inconsistency, especially among prison officials, owing to the issuing of
the many 'Surat Edaran', or directives, from the Directorate General of
Correction. Many prison officials are confused in using the 'Surat Edaran' and
one reason is that they have not been systematically ordered.

3. Third, after forty-five years of independence, ndonesia's criminal justice
system still lacks an integrated criminal policy. Police brutality, unfair
treatment to the defendant or excessive treatment by some prison officials are
all factors to be dealt with.

4. n addition, the 'Surat Edaran' of the Minister of Justice (No. 01
HN.02.01/1978) Article 9 states:

Recidivists who were granted remission before the Keputusan Presiden
No. 5/1987 was promulgated, are no longer eligible for remission."
This article is obviously contrary to the standard minimum rules for the treatment
of prisoners and has raised serious questions about how criminal policy is implemented
in ndonesia.

Based on all these facts, the main purpose of my paper is first, to describe the
practices of the Pemasyarakatan system in ndonesia and secondly, to analyse its
practice within the context of punishment theory.

Fa.ts about Pemasya7akatan

Establishing facts about
Pemasyarakatan practices in
ndonesia is not an easy task.
However, have taken the West Java
area as the object of my survey and
selected two big prisons, Banceuy and
Sukamiskin which are located in
Bandung. Banceuy has a capacity of
750 prisoners and Sukamiskin has 552
prisoners. The sources of information
in the survey are first, the statistics of
prisons in West Java area in the year
1989 and documents such as the
'surat edaran' from the Director General of Prisons and the Ministry of Justice from 1984
to 1990. The second source was interviews conducted with some of the prison officials,
including the heads of the prisons of Banceuy and Sukamiskin. 1989 statistics disclose
the following facts:

O There were an average of 200 to 250 prisoners per month in Banceuy and
400 to 450 prisoners in Sukamiskin
O Among these prisoners there were twenty-six recidivists. By way of
comparison, there were a total of 208 recidivists in West Java, or ten per cent
of the total number of prisoners.
O Of the 2,989 prisoners, only three prisoners escaped.
O There were 419 prisoners who had been convicted of special offences such
as subversion, smuggling, corruption, gambling and narcotic crimes who
needed special treatment different from that for other prisoners.
9f

A 1990 study of ndonesian prison conditions conducted by Asia Watch found

conditions harsh in most cases. Poor food, unsanitary conditions, and inadequate
medical care were common, as were mistreatment and corruption. Overcrowding in
ancient and inadequate facilities also occurred. The study noted the need for better
training of prison personnel and renovation of prison facilities.
Several specialized prisons for women and two for youths were located in Java.
Where it was not possible to confine such prisoners in separate institutions, as was
usually the case outside of Java, efforts were made to segregate juvenile from adult
offenders and females from males in separate sections of the same institution.
Ordinarily, prisoners were permitted visits by family members and could receive limited
amounts of food and other articles to supplement the minimal supplies they were
issued. Under some circumstances, prisoners were permitted to spend their nights at
home. Most prisons tried to provide medical service of some kind, although it was
generally regarded as inadequate.
Rehabilitation provisions included literacy classes, moral and religious training,
and workshops to teach crafts and skills. Some prisons operated small industries or
agricultural enterprises that sold their products on the local market. Proceeds were used
to pay a small wage to the working inmates, to buy recreational equipment, and to
maintain buildings and grounds. n some prisons, inmates worked in fields outside the
prison confines.
Although regular prisons often housed both convicted criminals and political
prisoners, the latter were kept isolated from other prisoners. Political prisoners were
also held in Kodam headquarters and in separate labor camps and detention facilities
staffed by military personnel.
Between 1969 and 1979, Kopkamtib ran a separate penal colony on Buru sland
for Group B prisoners, who were convicted on charges of indirect involvement in the
1965 attempted coup. n late 1979, following the nationwide release of Group B
prisoners, the penal colony on Buru sland was closed and the island was designated a
transmigration site.
Many released prisoners faced problems in reintegrating themselves into society
because families were often shamed by the prisoner's incarceration or feared they
would be discriminated against by officials or neighbors should they continue
association with the released prisoners. n 1981 the nation's first prisoner's aid society
was privately formed in Jakarta to help released prisoners overcome some of these
difficulties and to find employment. Released political prisoners detained in connection
with the 1965 attempted coup encountered particular problems upon their return to
society. Their identification cards, which all ndonesians carry, had special markings
indicating their status. Former political prisoners were denied employment in the civil
service, the armed forces, and in essential industries. They were able to vote but could
not hold any elected office. n some parts of the country they were required to check in
regularly with local authorities and to inform them of their movements.
Present Practices of the Pemasyarakatan System

The P7o.ess of Pemasya7akatan

The Pemasyarakatan system and its practice in ndonesia, especially in the West
Java region, has partly been regulated by the Prison Ordinance 1917/708 and partly by
the 'Surat-surat Edaran' of the Director General of Prisons or the Minister of Justice.
The most helpful 'Surat Edaran' to implement this system is the 'Pemasyarakatan
process', which is comprised of four procedural stages:

9f

1. First stage is the observation process. As soon as new prisoners are admitted
to prison, they are placed in a maximum security block, and during this
placement, interviewed by the prison official in charge.

2. Second stage is provided for prisoners who have served one-third of the
sentence and shown 'good behavior'. This stage gives more privileges and
freedom to prisoners than the first stage. f prisoners earn 'good behavior'
during this stage, then they are moved into the medium security block.

3. Third stage is provided for prisoners who have served one-half of the
sentence and shown 'good behavior' as recommended by the Board of
Pemasyarakatan (Dewan Pembina Pemasyarakatan). At this stage prisoners
may enroll in some study outside the prison, or work in the community near
the prison. However, they are still supervised by a social worker. After the
study or work is over, prisoners must return to prison.

4. Fourth stage provides for prisoners who have served two-thirds of the
sentence and demonstrated 'good behavior'. Entry to this stage means that
parole will be granted and prisoners are permitted to serve the rest of the
sentence in the community. The only obligation is to make a routine report
about their activities outside. f prisoners commit a crime or violate the prison
regulation, they will be forced to return to prison and serve the rest of the
sentence.

n the survey of Banceuy and Sukamiskin, it was found that the Pemasyarakatan
process was mainly comprised of three activities:

1. P7e-7elease

Pre-release treatment is a process whereby prisoners are allowed to conduct
their activities outside before their release. Prisoners who have served two-thirds of the
sentence or who have a short sentence are eligible for pre-release treatment. The
authority to give such process is the responsibility of the head of the prison.

n 1989, statistics showed that there were thirty parolees and three prisoners who
obtained pre-release treatment.

2. Pa7ole

Parole is available to prisoners who have served two-thirds of the sentence. The
authority to give parole is the responsibility of the head of the regional office of the
Department of Justice. The procedure of parole is very complicated because of the
number of conditions that prisoners must meet before release on parole.

3. Assimilation

The assimilation process is undergone by prisoners who have served half of their
sentence. t allows prisoners to conduct activities such as studying or working outside
the prison. These activities are accomplished by cooperation between the West Java
regional office of the Department of Justice, the Department of Social Welfare and the
Department of Manpower.

n the period 1986-89, there were more than 300 prisoners who participated in
training in various activities such as farming, repair work, plantation and furniture
processing. Based on the practice of Pemasyarakatan in West Java, it can be
concluded that the treatment process for prisoners in ndonesia is developing favorably.
Nevertheless, procedures in obtaining parole, pre-release treatment and assimilation
9f

seem to be an obstacle course for most prisoners today. Besides, most prison officials
feel that it is difficult to take any action or decisions concerning the assimilation process
because they are afraid of being blamed by their superiors for any failure. By the same
token, they have an obligation to reform prisoners and, if necessary, take any security
action required, for example, in case of riots or escapes.

The Pemasyarakatan Setting

The description of the process of Pemasyarakatan given above indicates that the
purpose of Pemasyarakatan is to re-socialize the prisoner, regaining of a prisoner's
skills, ability and motivation Atmasasmita 1981). But, within the context of the
correctional setting, re-socialization implies change relative to the group (M.o7kle &
o7n 1970).

Western sociologists have developed the concept of 'prisonization', introduced
first by Donald Clemmer (1940). Clemmer stated that prisonization means 'the taking on
in greater or lesser degree of the folkways, mores, customs and general culture of the
penitentiary' Garabedian 1970).Essentially means socialization within the prison walls.
There is no reason to believe that socialization within the prison is more coercive than
socialization within society at large. t seems rather that the reverse is true. Societal
circumstances where some people become criminal is much more coercive than the
prison situation. t can be concluded that socialization is a process of interaction
towards becoming a law abiding citizen. On the other hand, prisonisation is a process of
interaction to become criminally acculturates Atmasasmita 1981).

t is commonly believed that there is a dependent interaction between prisoners
and prison guards. n certain situations, such interaction could hamper the success of
Pemasyarakatan to re-socialize prisoners. Efforts have been made to prevent such an
obstacle, such as the release of the 'surat edaran' by the Director General of Correction
(number E-05.PK.01.10.90/ 1990). This guides prison officials in using the
'kekeluargaan' approach in taking action to settle riots or other violent conduct in prison,
by showing how the interaction process between prisoners and the official can be
accomplished harmoniously.

n the context of the theory of punishment, the concept of Pemasyarakatan could
be deemed to follow the re-socialization theory. But, in fact, it also follows the retribution
theory since a strict security approach is also implemented towards prisoners. Based on
these observations, today, ndonesia's criminal policy, especially the policy in
corrections, takes a position between the retribution and re-socialization theories. The
concept of re-socialization, as a fundamental aspect of Pemasyarakatan, means
'healthy re-entry into the community'. There are three subjects that are pre-eminent in
the Pemasyarakatan setting:

1. The prisoners;
2. The prison officials; and
3. Society at large.

Therefore, one could define re-socialization as a process of interaction between
the prisoners, the prison officials and society which implies altering prisoners' value
systems, so they will be able to readapt to the norms and values of society easily
Atmasasmita 1981). Since society plays a dominant role within the Pemasyarakatan
setting, to some extent it has a controversial character. n practice, even though a
prisoner has a good reputation during his confinement and is released into society,
there is no guarantee that he will find 'a good society' to live with. Our society believes
that a deviant is someone that constitutes risk to other members of society. This
phenomenon is consistent with the concept of labeling (Schur 1971).

9f

A more explicit statement about this is found in Becker's paper entitled 'The
Outsider' Schur 1971) where he states that:

"Social groups create deviance by making the rules whose infraction constitute
deviance... deviance is not a quality of the act the person commits, but rather a
consequence of the application by others of rules and sanctions to an 'offender'. The
deviant is one to whom that label has successfully been applied. Deviant behavior is
behavior that people so label.

Based on the description of the Pemasyarakatan setting within the context of the
punishment theory and Becker's theory of labelling, it is concluded that:

1. First, re-socialization, as the purpose of the Pemasyarakatan today, is nothing
but a Utopian objective.
2. Second, the position of the Pemasyarakatan system as a policy on
corrections is neither retributive nor reformative. t represents a mixed policy,
based on both concepts.