The author himself is a student or bachelor which had obtained lectures or direct advise from Alm. Prof Dr Satjipto Rahardjo, which turned into an admirer of Alm. Prof Dr Satjipto Rahardjo’s works and notions which is laid out within his books. The notion of application of progressive law which is conveyed within the book no other than the “version” or interpretation of the author (although adopting Alm. Prof Dr Satjipto Rahardjo’s thinking framework). This is the underlying reason as to why the author avoids discussing the basic concept of progressive law in detail within this book. Since in order to obtain the “original” meaning and understanding, it is best to read directly the writings and work of Alm. Prof Dr Satjipto Rahardjo.
- Application of Progressive Law in the Police Force
2.1 The Purpose of Law as the basis of Law Enforcement within the Police Force
Within the W. J. S. Poerwodarmita Indonesian dictionary, it is mentioned that the term Police means a governmental body in charge of maintaining security and public order, and is a state official which is in charge of guarding security and public order. Within the following definition, the term Police contains 2 (two) meaning, namely, the definition of Police as a responsibility and as a person. (WJS. Poerwadarminta, 1952). Police is a law enforcing official and guarding public security and order which connects with the public every time. Within such relationship with the public, Police expects legal awareness and order from the public. In contrary, the public desires that the Police Force is always wise and quick to act and to always hold on tight to the law without ignoring the society’s interest and feeling.
The Police Force in this matter is also not only viewed as a law enforcing officer which only focuses on law enforcement to achieve public order. But the police force also in this matter needs to understand and be a part of the society. Not merely enforcing law within the society, but the police force in this case also blends in with the society. So that the police image which is strict but humane as desired by The Head of the Police Force (Kepala Kapolri) can be achieved.
The problem regarding the police force’s unpleasant image does not only occur in Indonesia, in America, the police’s image is unpleasant by the many existence of “Stop-and-frisk” case. Stop and frisk is an action where a police officer stops someone suspected of being involved in a crime, search their outfit to find weapons, and afterwards question them, without their consent and without sufficient reason to arrest them often happens (LaFave, Wayne R, Search and Seizure, 2012).
The infamous case due to this matter is the Terry V Ohio case. The appearance of this case birthed a new verdict where the court defines a new standard where “reasonable suspicion” is less than “probable cause” but more than just a hunch, which states that “police officers shall be able to show specific and articulable facts which, is united rationally. The conclusion from such facts, which understandably guarantees disturbance. The court also argues that this “reasonable suspicion” basis shall apply both for initial stoppage as well as search. Firstly, it is stated that a police officer shall have a reasonable suspicion to top the suspect from the beginning. Secondly, it is stated that an officer then may search the suspect they stop if they have a reasonable suspicion that such suspect is armed and dangerous, or if, according to the officer’s experience, the criminal activity suspected is from a type which may involve a weapon. Search by officers can only help make sure that the suspect is not armed, and therefore shall be limited to patting the outwear of the suspect (LaFave, Wayne R, Search and Seizure, 2012).
From such issue the Indonesian police force can reflect, that the law enforcement conducted by the police force is not only enforcing the law itself, but also pay attention to reasonable aspects with calculation. Since the problems regarding matters involving arrest, or detention conducted by police officers is often far from being humane and the purpose of law itself. Often the police force tends to focus more on the humane side if such case is under the spotlight or if such case can generate more revenue. It is undeniable that such matters surely are conflicted with the concept of law enforcement itself. Other than regarding the legal concept, it also does not provide a justice aspect which in reality such justice is also an abstract matter therefore different between one and another. This matter also gives rise to a new polemic namely that the police force is only for a group of people. Thus, the concept of police force maintained previously has changed and has become vague.
Law enforcement which is conducted by the police force which does not dig into the meaning of law itself causes its implementation to not go as planned and damages the meaning of law itself. The law which all these times shall be a tool to create social welfare, is viewed as something rigid or even vague. This rigid and vague view of law will be a boomerang for law enforcement itself.
One of the cases and Police Force function within the criminal justice system in their function as law enforcer are namely: (Fikry Latukau, 2019)
- As an integral part, internationally this matter can also be seen within the 5th/1975 UN Congress Report (regarding “The Prevention of Crime and the Treatment of Offenders” specifically discussing the issue “the emerging roles of the police and other law enforcement agencies“) which emphasizes It was recognized that the police were a component of the larger system of criminal justice which operated against criminality;
- The status of Polri (Indonesian Police Force) as a component/element/subsystem is clearly seen within the prevailing laws and regulations (whether within the Criminal Administrative Law or within The Police Force Law No. 28/1997 which has been amended by Law No. 2/2002), namely as “junior investigator and investigator”;
- Ideally the police force is given the status as a law enforcer lies within the environment of judicial power, because the criminal justice system is an implementation of judicial power. This means, that the police force exists within the criminal justice system as a law enforcer to become one of the important parts namely within the process of pre-investigation and investigation. Other than that, the police force also functions as gatekeepers within the criminal justice system, where the criminal justice system starts from the police force itself. Therefore, the police force shall clearly understand that law enforcement itself is not just enforcing the law but also needs to pay attention to the justice aspects.
The police force in conducting their role and function within the criminal justice system is often considered successful if a report or complaint regarding the occurrence of crime can be completed according to the justice system principle in Indonesia, which is speedy, simple and low cost. However, in reality, the police force faces various challenges in providing crime countermeasures whether for those being operational in nature or in relation to the legal procedure. Those challenges results in non-optimal results, because the police force will only focus on the report result. In realty, the society requires a police force figure which does not only define the completion of the report as is, but also considering the suspect as well. Considering such, the police force’s task in performing progressive law is quite challenging. Not only focusing on the law, but also not influenced by other parties when handling a case.
According to Soerjono Soekanto, law enforcer itself lies on the activity of aligning the values elaborated within firm principles can manifest a manner as a chain of final values elaboration to create, maintain, and preserve life relationship peace (Soerjono Soekanto, 1983). Law enforcement in this case can be seen from two sides, in a broad and narrow sense. Law enforcement in a narrow sense means the effort of the law enforcing officials to guarantee and ensure how law works and law enforcement in a broad sense is defined as seeing all those legal subjects. Speaking of matters regarding law enforcement within the police force means discussing regarding law enforcement itself in a narrow sense, however in reality law enforcement within the police force itself cannot stand on its own. Other legal subjects which jointly assists the police force is required to help the police force understand the meaning of legal purpose itself. Such legal subject can be in the form of society, other legal practitioners, and others. This matter is easily illustrated as a car which to run smoothly, requires components which support the car to move smoothly such as how the car requires tires, battery, radiator, brakes, and others. This matter shows that the police force in enforcing the law shall also be assisted by other subjects so that the purpose of law enforcement itself will not only be viewed as a written law, but also looking deeper and clearer on what is law, and how such law grows within the society. In order for law enforcement to not only enforce law which is written, but understanding that law itself is only a tool to achieve desired justice.
Law as one of the ground of rules or law is enforced by the law enforcers one of which is the Police Force cannot be viewed as absolute as the main source, although Indonesia adopts the Civil Law system. The issue regarding Indonesia adopting the civil law or common law system is important, however it is important to still focus on the justice aspect within its implementation. Hart defines the law as a system of primary and secondary rules. Primary rules is related to actions which shall be done or shall not be done by individuals, while secondary rules is related to the making, interpretation, application and changes of primary rules such as for example, rules which shall be complied by the law makers and court (Khudzaifah Dimyati, 2004). However, in reality the law cannot be viewed as something rigid, since in principle the law is intended to become a vessel which continuously grow following the society’s development which is always dynamic. Therefore, the duties and authorities of the police force in enforcing the law is not only to focus on the words laid out within the laws, but in conducting their task, the police force may conduct interpretation and actualize such in conducting their duties in order to achieve social purpose and law enforcement itself. The police force is also referred to as Criminal Justice System and as the main gate in determining someone which is suspected to have or have not conducted a violation against the law, so the function of the police force itself is very vital in law enforcement. Due to the demands of the society.
Within social life, the law itself cannot be applied rigidly towards anyone and within any condition according to what is written within the law and regulations. The social life pattern is everchanging following the era development and time dynamic, so the law then needs to adjust and move dynamically but also not eliminating the firm side and benefit of law itself. Law itself also has the purpose to achieve certainty, benefit and justice of law itself (Darmodiharjo, 2002). Certainty carries meaning in a fixed state, legal certainty is when a regulation is made and enacted certainly and regulates and can be enforced certainly and logically (Cst Kansil, 2009). The existence of legal certainty is highly required to achieve justice and benefit. Such certainty appears as a result of enforcement of applicable rules which is conducted in a true and clear way. With the existence of legal certainty, order in the society will hopefully be achieved.
Benefit, application and enforcement of law conducted by the police force shall also consider the benefit and usage for the society which has legal issues. In reference to the law which is made for the interest of the society, therefore, its enforcement shall also provide benefit to the society. Lest the enforcement of law itself gives rise to detrimental effects for the society which leads to social anxiety.
Soerjono Soekanto mentions that justice is based on 2 things, namely the first one being the equality principle, where every one receives the same portion or the second being based on needs, to result in comparability which is usually applied in the legal field (Soerjono Soekanto, 2004). In this case Justice is more subjective, each Individual cannot be seen equal. Fair for one person may not be fair for another. Justice can be stated as something abstract, not black not white and not gray. Very subjective and depends highly on each person. However, it does not mean that the fair character itself which is very subjective can give rise to the statement that considering such, everyone is entitled to decide or see how law is. It is true that the law shall be seen progressively, not only fixed on text, but needs to be viewed that law itself shall be firm in its implementation.
The existence of Progressive law in legal enforcement especially within the Police force namely that the police force does not only have to always focus on the written law, but also on the side that law damages the purpose of law itself which is certainty, benefit and justice of law. Examining or processing a case differently than the previous way is possible to be implemented within the process of law enforcement, considering law enforcement all these times is conducted glued to the written text of law, while society now is always developing dynamically. The current law enforcement system which is far from the sense of justice in the society surely is difficult to change or fixed. Changing something which has become habitual, is not something easy but not impossible. Like in some cases which is not blown up by the media regarding cases which is received by the police force but not finished, not because it does not receive evidences or facts and because the data in the field is lacking, but it is safe to say that the police force in this matter received a number of funds from other parties to stop the investigation. Other than that, the infamous case of Gayus Tambunan which has been imprisoned but is able to go to Bali to watch tennis, fly to Singapore, and other matters which is not published by the media which involved the police force. Such as when Gayus Tambunan stated that he is about to go to his divorce trial with his wife but there are published photos where he was eating at a restaurant although accompanied by the police. Other than that, the expired case of the Bernas reporter, Faud Muhammad Syafruddin or known as Udin. Udin’s case was around 25 years ago, but until now it is still a mystery behind Udin’s murder. Udin was known to have died 3 days after a man hit his head. This is suspected due to his writings which produced hard criticism regarding suspicion of position transaction of a military elite with a family of the orde baru ruler. The case of Udin’s murder was filled with drama, where Iwak, the suspect at the time was part of the manipulation which is conducted by the stakeholders. Even the police handling this case also has been reported for losing evidences of Udin’s case which has been tired, however has not obtained any execution measures or sanctions which is imposed by the military court (Nurhadi Suvahyo, 2019). This case still receives public attention until now, however, the police force closed this case because they always ask for new evidences, while the previous ones are not processed. Other than these, there are still other stories which might not be exposed until now or was exposed but shut down.
From the abovementioned cases, it can be seen that in this matter money and power speaks louder than legal purpose and integrity of the law enforcers. The term law can be bought by a bunch of people is not mere words, but in reality, this matter happens often. These matters are not supposed to happen, because these matters really extinguish the sense of justice, public trust towards law enforcement. However, dwelling in “don’ts” and always talking about dreams shall not be done. The police force in law enforcement shall mirror to and also reflect the duties and roles as one of the law enforcing officials, and shall also understand and recognize the purpose of law itself exists not just as mere text of law, not just implemented firmly by a group of people, but seeing and understanding how such law exists to provide a feeling of safety, and fairness for each person.
2.2 Police Force as the Face of Law which Lives within the Society
Police as the front and first liner within the law enforcement process in Indonesia, which directly receives reports and complaints from the society, is the first witness of law development in the society. As we all know, law which is desired (das sollen) is often not inline with the law in reality (das sein). Such matter is actually really reasonable considering the values within the society continuously develops, as well as the needs of the society of law which should ideally be able to keep up with the development. However, it does not mean that in this matter, what is desired is viewed only as mere thoughts which does not need to be achieved. Facts exists in this matter to help realize that such dreams are hard to achieve and it requires effort to achieve it, but it does not mean that we shall be swayed by the facts present until we forget what the initial purpose or the initial dream is like.
