CRIMINAL LAW ASPECTS IN
GENERAL ELECTION VIOLATIONS
(Study from the Perspective of Criminal Law Policy)
By: John Dirk Pasalbessy
A. Introduction
The student-led reforms of 1997, which led to the downfall of Suharto, have resulted in demands and changes in various areas of life. One of the most widely discussed and currently being experienced by the Indonesian people is politics, specifically the implementation of general elections (pemilu), whether legislative, presidential, or regional head elections.
General elections (elections) in Indonesia itself are essentially a means of fulfilling democracy in a country, namely the embodiment of the principle of people's sovereignty as formulated in Article 1 paragraph (2) of the 1945 Constitution of the Republic of Indonesia. According to the provisions of Article 1 point 1 of Law Number: 10 of 2008 concerning General Elections of Members of the People's Representative Council, Regional Representative Council and Regional People's Representative Council, that general elections hereinafter referred to as Elections are a means of implementing people's sovereignty which is carried out directly, generally, freely, secretly, honestly and fairly in the Unitary State of the Republic of Indonesia based on Pancasila and the 1945 Constitution of the Republic of Indonesia.
It is interesting that the election process, from the initial stages of registering prospective participants and voters, to the determination of prospective participants and voters, and from the campaign to the voting period, is rife with political intrigue based on the political sensitivities of each participant. It is no wonder that the Central Election Supervisory Agency (Bawaslu) and the regional Election Supervisory Committees (Panwaslu) have a wealth of evidence of violations committed by election organizers, participants, and implementers, the government, the judiciary, and the general public. Ironically, of these violations, only a few cases are processed through legal channels, and even then, if the violations become public opinion, even though some cases with similar motives and modus operandi in various regions are not resolved through legal channels, giving the impression of being arbitrary. "disparity" or also discriminatory.
In this regard, what is interesting is whether the motives and modus operandi of election violations, as defined in the Election Law, must be addressed using criminal law. If criminal law must be used, what exactly is the core offense? (benstandel delicten) or the essence of prohibited acts and those which are punishable by criminal law (criminal acts) as the basis for law enforcement in the election process in Indonesia so far.
From the perspective of criminal law policy, protection against various administrative legal regulations is actually a reasonable demand, because various behaviors prohibited by new administrative legislation can be qualified as criminal acts if the act fulfills the elements that form the basis of the prohibition of the administrative regulations, while the use of criminal sanctions only serves to strengthen administrative norms. (Muladi, 1990) However, in this case it should not be forgotten that the use of criminal law has limitations (compared tote ultimum remedium).
It is acknowledged that elections are not a legal area of criminal law, considering their relationship with the implementation of democracy in a nation, therefore, elections are actually part of the legal area of state administration, and because of legal policy, the mechanism and its implementation are formulated in a statutory provision, which also involves criminal law, including criminal sanctions as sanctions to strengthen administrative norms. From a criminal law perspective, there are three important basic problems, namely: (a) there are acts prohibited by criminal regulations or criminal acts; (b) there are people who commit criminal acts or criminal responsibility; and (c) there are sanctions in the form of criminal penalties for people who are proven guilty of committing criminal acts. (Barda Nawawi Arief, 1996)
In this regard, the issue that needs to be discussed further is whether election crimes as formulated in Law Number 10 of 2008 can be qualified as acts that can be punished (criminal acts) according to the criminal law policy approach. (penal policy). What about the various cases of election violations that have occurred so far? Are criminal sanctions effective for these actions?
B. Definition, Nature and Purpose of Election Implementation.
In the General Explanation of Law Number 10 of 2008 concerning the General Election of Members of the People's Representative Council, Regional Representative Council and Regional People's Representative Council, it is explained, among other things, that the meaning of "sovereignty is in the hands of the people" as regulated in Article 2 paragraph (1) of the 1945 Constitution of the Republic of Indonesia is that the people have sovereignty, responsibility, rights and obligations to democratically elect leaders who will form a government to manage and serve all levels of society, and elect representatives of the people to oversee the running of the government. As a manifestation of the people's sovereignty, direct general elections are held as a means for the people to elect their representatives who will carry out the function of supervision, channel the people's political aspirations, make laws as a basis for all parties in the Unitary State of the Republic of Indonesia in carrying out their respective functions, and formulate revenue and expenditure budgets to finance the implementation of these functions.
In this regard, in the general explanation of Law Number 10 of 2008, it is emphasized, among other things, that in accordance with Article 22E paragraph (6) of the 1945 Constitution of the Republic of Indonesia, general elections are to elect members of the People's Representative Council, Regional Representative Council, and Regional People's Representative Council held based on the principles of direct, general, free, secret, honest, and fair every five years. The general elections are held by guaranteeing the principle of representation, meaning that every Indonesian citizen is guaranteed to have a representative sitting in a representative institution who will voice their aspirations at every level of government from the central to the regional levels. What is interesting is that it turns out that the implementation of elections is not an easy matter. The principle of holding elections according to the direct principle is intended so that the people as voters have the right to cast their votes directly according to their conscience, without intermediaries. Likewise, the general nature contains the meaning of guaranteeing opportunities that apply universally to all citizens, without discrimination based on ethnicity, religion, race, group, gender, region, occupation, and social status.
Every citizen who has the right to vote is free to make their choice without pressure or coercion from anyone. In exercising their rights, every citizen's security is guaranteed by the state, so they can vote according to their conscience. When casting their vote, voters are guaranteed that their choice will not be known by any party. Voters cast their votes on ballots that cannot be known by others. In the implementation of this election, election organizers, government officials, election participants, election supervisors, election observers, voters, and all related parties must behave and act honestly in accordance with laws and regulations. Every voter and election participant is treated equally and is free from fraud from any party.
In practice, the aforementioned desires cannot always be fulfilled. The tendency to exploit opportunities to gain the favor of one party or party participating in the election is always open. Therefore, deviant behavior that tends to violate norms is often unavoidable.
C. Criminal Law Protection Policy for General Elections
With the development of society accompanied by limited employment opportunities, it is undeniable that such circumstances will tend to give rise to various types of crime, the impact of which is not only disruption and loss for individuals and society, but also for the nation. Often, when disruption and loss arise, people tend to turn to criminal law, hoping that criminal law enforcement will be able to address these crimes, thereby creating peace and tranquility.
If this view is correct, then perhaps what needs to be addressed is how criminal law is used as a means. (tool) to address crime and various social disturbances wisely and judiciously. This view is justified considering that from a criminological perspective, the causes of crime do not solely stem from a person's own circumstances, but are also a result of the environmental conditions in which he or she finds himself. (anomie) which is supported by advances in science and technology. Therefore, it cannot be denied that the problem of crime is always of a multidimensional. (Romli Atmasasmita, 1982)
In this regard, from a criminal law policy perspective, what needs to be studied is how to improve the current Indonesian criminal law system, which includes: (a) regulations regarding the substance of material criminal law; (b) regulations regarding the structure of professional criminal law institutions; and (c) regulations regarding a humane criminal and sentencing system. (Muladi, 1990)
Criminal law policy ((penal policy) or known as the term criminal law politics is indeed one approach in modern criminal law (the modern scientific science), besides the “approach”criminology” and “criminal law”(Marc Ancel, 1965: 4-5) According to Ancel, criminal law policy is both a science and an art that ultimately has the practical goal of enabling positive legal regulations to be formulated better, and providing guidance not only to legislators, but also to courts that apply laws and also to the organizers or implementers of court decisions. It is said, "between the study of criminological factors on the one hand, and the study of legislative techniques on the other, there is a place for a science that observes and investigates rational legislative phenomena, where scholars and practitioners, criminologists and legal scholars can work together, not as opposing or conflicting parties, but as colleagues bound by a common task, namely primarily to produce a realistic, humanistic and forward-thinking criminal policy. (progressive) healthy again.
Term "policy" comes from the term “policy” (English) or "police" (Netherlands). According to Robert R Mayer and Ernest Greenwood (, "policy" (policy) can be formulated as a decision that outlines the most effective and efficient way to achieve a collectively determined goal. According to Sudarto (1981: 15) legal policy is:
1. Efforts to create good regulations according to the circumstances and situations at a given time;
2. The policy of the state through authorized bodies to establish the desired regulations which are expected to be used to express what is contained in society and to achieve what is aspired to. (Sudarto, 1983: 20)
It is explained that implementing criminal law policy means holding elections to achieve better criminal legislation results, in the sense of fulfilling the requirements of justice and efficiency. (Sudarto, 1981) In another section, it is also stated that implementing criminal law policy means an effort to realize criminal legislation that is appropriate to the conditions and situations at a certain time and for the future. (Sudarto, 1983) Viewed from the perspective of legal politics, criminal law policy means how to strive for or create and formulate good criminal legislation. According to Mulder (1980: 333), “strafrechtspolitiek” or criminal law policy is a policy line to determine:
1. To what extent have the applicable criminal provisions been changed or updated;
2. What can be done to prevent criminal acts from occurring;
3. The manner in which investigation, prosecution, trial and execution of criminal penalties should be carried out.
If you understand the meaning of criminal law policy or “penal policy” As stated above, it is assumed that efforts and policies to create sound criminal law regulations are essentially inseparable from the goal of combating crime. Criminal law policies or policies are also part of criminal politics. Viewed from a criminal politics perspective, criminal law policies are synonymous with the concept of crime prevention policies using criminal law as a means. (penal)In a broader context, criminal law policy is also part of the (criminal) law enforcement effort. Therefore, criminal law policy is part of the law enforcement policy. (Law enforcement policy). If the goal of criminal law is to protect the interests of the state and society, then elections, as part of a country's democratization efforts, including Indonesia, must also be protected. This implies that the state intends to maintain public order within the country.
Muladi (1990: 7) in this regard emphasizes that the involvement of criminal law in other legal fields (administrative) is only complementary. In such cases, the position of criminal law is only to support the enforcement of existing norms in other legal fields, such as taxation, copyright, patents and so on. Even in certain cases, its role is expected to be more functional, rather than merely subsidiary, considering the unfavorable economic situation (domestic politics, the author's underlining). Meanwhile, it is acknowledged that the functionalization of criminal law or specifically criminal sanctions in this case is a reasonable demand, considering the enormous legal interests protected.
As with other areas of life, elections are a legal entity protected by criminal law. This is because criminal law has advantages over other legal fields. As a negative sanctioning law, criminal law, including criminal sanctions, can be used as a means of enforcement. (tool) because it has the power to compel people to obey the rules. According to Barda Nawawi Arief (2005), in essence, criminal law functions to protect various specific interests, and therefore, according to him, these interests can be individual, societal, national, and state.
General elections, as a means of popular democracy, have only been held a few times in Indonesia, even in recent years. Due to the changing paradigm of the global political map and the demands for democratization in each country, the government and politicians are constantly searching for the right format for how elections will be held. This is natural, because as a cultured nation, we do not want to be trapped by momentary interests based on narrow ideologies that are not in line with the Pancasila ideology, which has been the nation's commitment since Indonesian independence in 1945. Nevertheless, it is also acknowledged that no matter how good and perfect a democratic system is, we must also return to the ethics and culture of the nation. Election laws have indeed been created and have undergone several amendments, but it cannot be denied that there is still a tendency for violations that have important legal dimensions.
The question is, can election violations be classified as criminal acts? Andi Hamzah (2008: 2) asserts, "It turns out that not all evil acts can be included in criminal law, and not everything that falls under criminal law is evil.
D. General Election Crimes
By examining several formulations of criminal acts regarding general elections in several laws and regulations in Indonesia, there are several formulations of criminal acts as regulated in Chapter IV Book II of the Criminal Code, as found formulated in:
- Article 148, which criminalizes a person who intentionally and with violence or with the threat of violence obstructs someone from exercising their right to vote.
- Article 149 states that during the general election period, giving, promising or bribing someone to not use their right to vote, or to follow what the giver wants, even the recipient of the bribe can also be subject to criminal penalties.
- Article 150, namely acts of deception that cause a voter's vote to become worthless.
- Article 151 which defines the act of intentionally claiming to be someone else, and
- Article 152 defines acts of deliberately thwarting a vote that has been taken or committing fraudulent acts that cause the vote results to be different.
Observing the formulation of criminal acts and the pattern of formulation of criminal threats in the articles of the Criminal Code above, it is said that the formulation is still very simple, therefore the average threat of criminal sanctions ranges from 9 (nine) months to 2 (two) years of imprisonment, and no criminal fines are imposed. This is certainly a form of past formulation policy that tends to be colonial in nature, because it is recognized that the Criminal Code currently in force for the Indonesian nation is indeed a colonial legacy since the Dutch East Indies era.
With political developments as a result of demands and freedom in democracy, the formulation of criminal acts related to political crimes in the Criminal Code above is felt to be unable to answer the needs of society. From various experiences of organizing elections in Indonesia, and based on the development of the paradigm of democratic life that has occurred so far, it turns out that election procedures and mechanisms also influence changes in the behavior of both participants, implementers, election organizers and several government and judicial institutions that are the objects of the formulation of election crimes as formulated in Article 260 - 311 of Law Number 10 of 2008 concerning the General Election of Members of the People's Representative Council, Regional Representative Council and Regional People's Representative Council, which are broadly grouped into several qualifications of actions, such as:
1. Criminal acts directed at any person, which include:
a. Acts of eliminating another person's right to vote (article 260)
b. M's act of providing false information about oneself or another person related to filling in the voter list (article 261);
c. The act of preventing someone from registering as a voter by using violence or the threat of violence using the power held by him (Article 262);
d. Fraudulent acts to mislead someone or by forcing or by promising or giving money or materials to obtain support for the nomination of DPD members in the election as in Article 13 (Article 265)
e. Making a letter or document with the intention of using or ordering someone to use it, or any person who intentionally uses a falsified letter or document to become a prospective candidate for member of the DPR, DPD, provincial DPRD, district/city DPRD or prospective Election Participant as referred to in Article 63 and Article 73. (Article 266)
f. Conducting campaigns outside the established time schedule (Article 269)
g. Violating the prohibition on carrying out election campaigns (Article 270)
h. Giving or receiving campaign funds exceeding the specified limit. (Article 276)
i. Disrupting, obstructing or interfering with the course of the election campaign (Article 278)
j. Providing false information in a campaign finance report. (Article 281)
k. Announcing the results of a survey or opinion poll during the cooling-off period (Article 282)
l. Promising or giving money or other materials to voters so that they do not use their right to vote or have other election participants or use certain methods during voting (Article 286)
m. Preventing someone from exercising their right to vote or engaging in activities that disrupt public order and security during the voting process (Article 287)
n. An act that causes a voter's vote to be worthless or causes a particular election participant to receive additional votes or an election participant's vote to be reduced (Article 288)
o. Identifying oneself as another person during voting (Article 289).
p. Voting more than once or at more than one polling station (Article 290)
q. Thwarting voting (article 291)
r. An employer/superior who does not give workers the opportunity to vote in a poll unless the reason is that the work cannot be left. (Article 292)
s. Eliminating sealed voting results (Article 293);
t. Helping voters inform others about their choices (Article 295)
u. Due to negligence, the minutes of voting and counting and certificate of voting results that have been certified were damaged or lost (Article 297)
v. Changing the minutes of voting results and/or voting results certificate (article 298)
w. Damaging, disrupting, or distorting the vote counting information system for election results. (Article 300)
x. Any person or institution that conducts a quick count and announces the results of the quick count on the voting day/date (Article 307)
y. Any person or institution that conducts a quick count but does not notify that the quick count results are not the official election results (Article 308)
2. Criminal acts that can be committed by KPU officers, provincial KPU, district/city KPU, PPK, PPS and PPLN, include:
a. Correcting the temporary voter list (Article 263);
b. Not following up on the findings of Bawaslau, Provincial Panwaslu, Regency/City Panwaslu, Sub-district Penwaslu, PPL, PPLN in updating voter data, compiling and announcing temporary voter lists, improving and announcing temporary voter lists, determining and announcing permanent voter lists, and recapitulating permanent voter lists which are detrimental to Indonesian citizens who have the right to vote (Article 264);
c. Members of the KPU, provincial KPU, and district/city KPU who do not follow up on the findings of Bawaslu, provincial Panwaslu, and district/city Panwaslu in carrying out verification of political parties of election participants (Article 267);
d. Members of the KPU, provincial KPU, and district/city KPU who do not follow up on the findings of Bawaslu, provincial Panwaslu, and district/city Panwaslu in the implementation of verification of political parties as election participants and verification of the completeness of administration for prospective members of the DPR, DPD, provincial DPRD, and district/city DPRD (article 268);
e. Members of the KPU, provincial KPU, district/city KPU, KPU Secretary General, KPU General Secretariat employees, provincial KPU secretary, provincial KPU secretariat employees, district/city KPU secretary, and district/city KPU secretariat employees who are proven to have committed election crimes in the implementation of the election campaign as referred to in Article 123 paragraph (1) (Article 275)
f. Determination of the number of ballot papers printed exceeding the number determined by the Chairman of the KPU (Article 283)
g. The Chairperson and members of the KPPS/KPPSLN who do not provide replacement ballots if the ballots are damaged or do not record the ballots in the minutes. (Article 294)
h. Regency/City KPU that does not determine a re-vote at the TPS (Article 296 paragraph (1))
i. The Chairperson and members of the KPPS who do not implement the decision of the district/city KPU to carry out a re-vote at the TPS. (Article 296 paragraph (2))
j. Members of the KPU, provincial KPU, district/city KUP and PPK who due to negligence cause the loss or alteration of the minutes of the results of the recapitulation of the vote count/or the vote count certificate (Article 299 paragraph (1) and if done intentionally, the penalty will be increased to 2 times.
k. The Chairperson and members of the KPPS/KPPSLN who do not prepare and sign the minutes of the vote count for election participants and candidates for members of the DPR, DPD, and DPRD. (Article 301)
l. KPPS/KPPSLN that do not provide a copy of the minutes of the voting and vote counting, and the certificate of voting results to election witnesses, field election supervisors, PPS, and PPK through the PPS. (Article 302)
m. KPPS/KPPSLN who do not guard, secure the integrity of the ballot box, and hand over the sealed ballot box containing the ballot papers, voting minutes, and vote counting certificate, to the PPK via the PPS or to the PPLN for KPPSLN on the same day (article 303);
n. Every Field Election Supervisor who does not supervise the handover of sealed ballot boxes to the PPK and the sub-district Panwaslu who does not supervise the handover of sealed ballot boxes to the district/city KPU (Article 304)
o. PPS that does not announce the vote count results from all TPS in its work area (article 305).
p. The KPU does not determine the results of the national elections for members of the DPR, DPD, provincial DPRD, and district/city DPRD. (Article 306)
q. The Chairperson and members of the KPU, provincial KPU, and district/city KPU who do not implement court decisions that have obtained permanent legal force. (Article 309)
r. The Chairperson and members of Bawaslu, Provincial Panwaslu, Regency/City Panwaslu, Sub-district Panwaslu, and/or Field Election Supervisors/Overseas Election Supervisors who intentionally do not follow up on findings and/or reports of election violations committed by members of the KPU, Provincial KPU, Regency/City KPU, PPK, PPS/PPLN, and/or KPPS/KPPSLN in every stage of the election implementation. (Article 310)
3. Criminal acts aimed at campaign implementers, such as:
a. Acts of violating campaign implementation (Article 271);
b. The act of giving money or other materials as compensation to campaign participants with the intention of not exercising their right to vote or electing a particular election participant, or exercising their right but making their ballot invalid (Article 274)
c. Due to negligence resulting in the stages of election implementation at the village/sub-district level being disrupted, and if done intentionally, the criminal penalties are increased (Article 279).
d. Implementers, participants or officers who intentionally or negligently cause disruption to the election implementation stages. (Article 280)
4. Criminal acts directed at election participants, as regulated in Article 277, are election participants who are proven to have received donations and/or assistance as referred to in Article 139.
5. Criminal acts directed at state officials/government officials and judicial institutions, which include:
a. Every Chairperson/Deputy Chairperson/Deputy Chairperson/Supreme Court Justice/Constitutional Justice, judges in all judicial bodies, Chairperson/Deputy Chairperson and members of the Audit Board, Governor, Senior Deputy Governor, and Deputy Governor of Bank Indonesia and officials of state-owned enterprises/regional-owned enterprises who violate the prohibition as referred to in Article 84 paragraph (3) (Article 272)
b. Civil servants, members of the Indonesian National Armed Forces and the Republic of Indonesia National Police, village heads and village officials, and members of village consultative bodies who violate the prohibitions as referred to in Article 84 paragraph (3) and paragraph (5) (Article 273)
6. Criminal acts directed at ballot printing companies, which include:
a. Printing more ballot papers than the specified number. (Article 284)
b. Not maintaining the confidentiality, security and integrity of ballot papers (Article 285)
Re-examining the formulation of criminal acts above, it can be concluded that the policy of formulating criminal acts in Law Number 10 of 1982 is not the same as the formulation policy in the Criminal Code, because it turns out that the formulation of criminal acts has been expanded not only to everyone, but also to several categories of subjects, such as election participants, election organizers, state officials, government and justice, and so on. Likewise with the threat of criminal sanctions, where the formulation tends to use an alternative system, namely between imprisonment and fines, while the policy of the pattern of formulating criminal sanctions in the Criminal Code is only single, namely imprisonment.
From the perspective of criminal law policy, the pattern of formulating criminal acts and threats is indeed interesting to discuss further.
E. Criminal Law Policy That Is Not Criminal Integrated (Integrated)
Referring to the category of formulation of general election crimes as above, if viewed from the scope of criminal law policy it can be concluded that in fact the formulation of criminal acts as in Law Number 10 of 2008 tends to be of a over criminalization. This means that there are formulations that actually do not need to be threatened with criminal sanctions, because the qualifications of the actions formulated are more technical in nature, therefore it is more appropriate to use administrative sanctions.
According to Barda Nawawi Arief (2005: 29) in criminal law policy, there are 2 (two) central problems that must be given attention if criminal law, including criminal sanctions, is to be involved, namely:
1. What actions should be considered criminal acts; and
2. What sanctions should be used or imposed on the violator.
Barda Nawawi Arief emphasized that analysis of this central problem cannot be separated from the integral concept of criminal policy with social policy and national development policy. This means that solving the above problems must also be subordinated to achieving the specific goals of established social policy. Therefore, criminal law policy, including policies addressing the two central problems mentioned above, must also be implemented with a policy-oriented approach. (policy-oriented approach).
Similarly, Sudarto (1977: 44 – 48) is of the opinion that in facing the two central problems above, the first central problem must be paid attention to the following things in essence:
1. The use of criminal law must take into account the goals of national development, namely the realization of a just and prosperous society that is materially and spiritually equitable based on Pancasila; in this regard, the (use of) criminal law aims to combat crime and to carry out the suppression of the countermeasures themselves, for the sake of the welfare and protection of society;
2. The acts that are attempted to be prevented or dealt with by criminal law must be undesirable acts, namely acts that cause harm (material and psychological) to members of society;
3. The use of criminal law must also take into account the principle of costs and benefits. (cost and benefit principle);
4. The use of criminal law must also take into account the capacity or ability of the work force of law enforcement agencies, namely that there must be no excess of workload. (overbelasting).
The opinions of the two experts above are also supported by several thoughts that were developed during the National Criminal Law Reform Symposium in 1980. In one of its reports, it was emphasized that "the problem of criminalization and decriminalization of an act must be in accordance with the criminal policy adopted by the Indonesian nation, namely the extent to which the act is contrary to the fundamental values that apply in society and is considered by society to be appropriate or inappropriate for punishment in order to provide public welfare." The symposium formulated several steps in formulating criminal acts that must be considered, namely:
1. Is the act disliked or hated by society because it is harmful, or can be harmful, causes victims or can cause victims?
2. Are the costs of criminalization commensurate with the results to be achieved, meaning cost The creation of laws, supervision and enforcement of the law, as well as the burden borne by victims, perpetrators and perpetrators of crimes themselves must be balanced with the legal order situation that will be achieved.
3. Will it further increase the burden on law enforcement officers that is unbalanced or clearly beyond their capabilities?
4. Do these actions hinder or obstruct the nation's ideals, thus posing a danger to society as a whole?
The same applies to the issue of elections, that their implementation does not stand alone or is optional, but is part of the social politics of a nation, and therefore it is necessary to have security through legal policies or legal politics, which in this case can be in the form of using administrative legal means or criminal legal means. (penal).
In the sense of using administrative law, the formulation of actions related to the implementation of elections is more dependent on the principles and norms that apply in administrative law itself, therefore the "core formulation of behavior and/or actions" adopted in the election law is mentioned in several categories, namely participants, implementers, organizers, government and judicial institutions, as well as the community in the general election process must be more technical and administrative. If among the actors, implementers, organizers, government institutions or the community in general there are violations, then it is better to use administrative sanctions first, and if the effort to use these sanctions does not get support, then criminal law sanctions are used. (appeal to the principle ultimate remedy or subsidiary).
This must be understood correctly, because the use of criminal law, including criminal sanctions, to address various violations before, during, and after elections is not always effective. This is evident in several cases where, in some regions, the courts investigate and impose sanctions, but not in others.
Analyzing the formulation of criminal offenses and the pattern of criminal threats in Law Number 10 of 2008 is not considered rational when analyzed from a criminal law policy approach. However, it must be acknowledged that the current election law is indeed a political product that has undergone a thorough legislative process in the legislature. Indeed, if criminal law policies within the election law, and even other laws that tend to use criminal law as a means of protection, are integrated (integrated), then it might be interesting to consider Bassiouni's (1978: 82-84) thoughts that it should be considered as one of the scientific device and is used as an alternative to the emotional assessment approach. (the emotionally laden value judgment approach) by most judicial bodies.
According to Bassiouni, the development 'a policy-oriented approach' This was slow in coming, because the legislative process was not yet ready for such an approach. The ongoing criminalization process without any evaluation of its impact on the entire system resulted in:
- The crisis of overcriminalization (the crisis of over criminalization) from;
- The crisis of criminal law overreach (the crisis of overreach of the criminal law)
F. Closing
Examining the various violations before, during, and after the election, it is recognized that many violations are processed under election law, which is not beneficial from a criminal law perspective. This is justified, because in the context of criminal law enforcement, “spirit of law” which underlies the formation of election laws. There must be a reason why the act that was violated must be enforced.
In fact, there are conditions that need to be considered in the law enforcement process, especially in election cases, namely the existence of balance, harmony and harmony antara “legal awareness” planted by the ruler (legal awareness) with the spontaneous legal feeling of the people (legal feeling).
It must be remembered that the concept of law enforcement cannot be separated from the development of democracy and politics, where in a large and pluralistic society, the implementation of democracy is greatly influenced by public policies which are largely determined by leaders. (elites) political organizations and interest groups (interest groups) who appear competitive. In fact, they are expected to always uphold their commitment to the basic values of society.
That's all.
Reading List
Ancel, Marc, 1965, A, Modern Approach to Criminal Problems, Routledge & Kegan Paul, London.
Andi Hamzah, 2008, Development of Indonesian Criminal Law, Paper Presented at the National Seminar on the Influence of Globalization on Criminal Law and Criminology in Facing Transnational Crimes Organized by ASPEHUPIKI, Hotel Savoy Homann, Bandung, March 17, 2008.
Atmasasmita Romli, 1982, Selected Chapters on Criminology, Armico, Bandung.
Bassiouini, M. Chief, 1978, Substantive Criminal Law,
Barda Nawawi Arief, 1996, Anthology of Criminal Law Policy, Citra Aditya, Bandung
Muladi, 1990, Projections of Indonesian Material Criminal Law in the Future, Inaugural Speech of Professor in the Subject of Criminal Law at the Faculty of Law, Diponegoro University, Semarang, February 24.
Mulder, A., 1980, Strafrechtspolitiek, Delikt en Delinkwent,
Sudarto, 1981a, Law and Criminal Law, Alumni, Bandung.
———, 1983, Criminal Law and Social Development, New Light Bandung
