Criminal trial system consists of the
following sub-systems: the Police, Attorney, Judge and Correctional Institution. Those sub-systems must be integrated in implementing the task of law
enforcement which determines the success of settling a criminal case by adopting common understanding and perception upon a regulation. Mastery of theories of law by a law enforcement official determines the policy of application which he/she is going to implement.
In handling a case regarding violence in a household, the law enforcement
officials often deviate from the
principle of Lex Specialis Derogat Lege Generali (a special rule disregards a general rule) in which they
apply the paragraphs of Indonesian Penal Code in settling the case. Therefore, this study intends to find out the factors being considered by the law enforcement officials for not effectively
applying the aforementioned principle and how to make them apply the principle effectively.
The policy to apply the criminal
stipulation of the Indonesian Act Number 23 of the Year 2004 as a part of the implementation of the criminal law enforcement is inhibited by the following factors: (i) the factor of the Act which does not definitely regulate the nature of Lex Specialis, (ii) the factor of the law enforcement officials who do not fully master the theories of material law and lack of coordination in applying the criminal stipulation, (iii) the factor of the social habit, which regards that misdeed by a family member should only be settled by the family itself to avoid embarrassment of being exposed to the public.
The following are the reasons why the law enforcement officials do not apply the criminal stipulation of the Indonesian Act Number 23 of the Year 2004: The investigators still expect the attorneys to be definitive in giving the instructions on the application of the rule. The attorneys themselves do not have technical guidance in handling a case of violence in a household and are afraid that the wrong doer will be released if they do not apply the paragraph of Indonesian Criminal Code. The administration in handling a case of violence in household as an important case is complicated. The judges are inhibited by the fact that they are bound by the letter of indictment from the attorney.
The efforts to be taken to improve the situation are the following: (i) revising the Act, (ii) improving understanding and knowledge of the law enforcement officials through integrated education system, (iii) improving people’s legal awareness through The Center of Integrated Legal Services (Pos Pelayanan Hukum Terpadu = POSKUMDU) in each village.
More abstracts about the The Policy of Application of the Criminal Stipulation of the Indonesian Act Number 23 of the Year 20