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February 2009 - Crime. Legal Developments by Frans Winarta & Partners .

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The problem of due process of law often comes up in an investigation process, especially in evaluating the treatment of a person who is being investigated by law enforcers, i.e. the police, the prosecutor or the judge.

There are often protests, by the suspect, the defendant, or the defending attorney, against the treatment received by the suspect or the defendant. Witnesses often withdraw their testimonies because due process of law is not applied, i.e. presumption of innocence is not applied, there is no humane treatment, there are still torture and intimidation methods during investigations, the defendant is not given enough time to defend himself, the suspect's access to an advocate is restricted, there are economic and political influences on the process of judiciary, there is conflict of interest, and other attitudes and treatments that are not in accordance with the concept of due process of law.

The essence of due process of law, coming from the law of the land, first developed in the common law system and later followed by the civil law system, is basically preventing someone from becoming the judge on his own cause. The concept of due process of law is from the general rule (truth): "iniquum est aliquem suae rei esse judicium" (it is unfair for someone to be a judge in his own affairs). This general rule that applies as the maxim law was actually taken from the Roman Law: "aliqius non debet esse judex in propria causa, imo iniquum est aliquem suae rei esse judicum" (because someone ought not to be a judge in his own affairs). Then Lord Coke developed it into: "For it is a maxim law, someone ought not to be a judge on his own cause". This is related to the conflict of interest, where a judge or other law enforcers cannot decide (determine) or adjudicate a case or an affair if there is a personal interest that comes with it, which can cause his decision or action or attitude to be biased due to such personal interest.

The case of Romli Atmasasmita


In the case of alleged corruption in the Legal Entity Administration System ("Sisminbakum") at the Directorate General of General Law Administration ("AHU") of the Department of Justice and Human Rights, where one of the suspects is Professor Romli Atmasasmita, he has stated in mass media that there is a personal interest of a high-ranking official at the Attorney General's Office in the case against him. That Romli must be legally processed is agreed by everyone, especially due to the fact that to uphold the law and to eradicate corruption, no one is immune to the legal process. However, the legal process must apply the principles of protection and respect of the suspect's or the defendant's human rights. The detainment of a suspect or a defendant must fulfill the concept of due process of law. The detainment of a suspect or a defendant is the last option under circumstances required by Article 21 paragraph (1) of the Indonesian Criminal Procedural Code (KUHAP), i.e. the suspect or the defendant is strongly suspected of committing a crime based on sufficient evidence, and under circumstances that cause apprehension that the suspect or defendant will flee, destroy or eliminate the evidence or repeat his crime.

In the Romli case, the requirements for detainment as stated in Article 21 paragraph (1) of the KUHAP have not been fulfilled, but there has been detainment on Romli before he is examined, which causes restrictions on his freedom. This is clearly a violation of his human rights by the state c.q the Attorney General's Office, when in fact there is no certainty that he is guilty. The Attorney General's Office is actually given the right by the KUHAP to detain a suspect or a defendant, but it should be exercised with caution and based on strong legal bases.

Romli's accusation regarding a personal conflict between himself and the Junior Prosecutor for Special Crimes of the Attorney General's Office ("Jampidsus"), Marwan Effendy, should become the attention of the Attorney General, Hendarman Supandji. If Romli's accusation is correct, the Attorney General, Hendarman Supandji, must take over this case c.q. the Romli case and reconsider the decree of Romli's detainment. This is to avoid any conflict of interest in this case.

The right application of due process of law

The interpretation of due process of law by Lord Coke states that it has become the maxim law, whose truth can be generally accepted, that a person cannot become the judge or the prosecutor on his own case (affair). Therefore, the take-over of Romli's case by the Attorney General can prevent the violation of due process of law by law enforcers and it can also prevent the possibility of law enforcement based on vengeance. It is expected that the take-over of this case by the Attorney General can be a guarantee of the application of due process of law.


Written by:

Dr. Frans H. Winarta, S.H., M.H.

(An Advocate and a Lecturer at the Law Faculty of Pelita Harapan University) 

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