PERSPEKTIF KEADILAN DAN KEPASTIAN HUKUM DALAM PUTUSAN PRAPERADILAN NOMOR: 04/Pid.Prap/2015/PN.Jkt.Sel. TAHUN 2015

Abstract

Pretrial arrangement in the Criminal Procedure Code is a strict rule with a clear limitation. One function of pretrial is to test the validity of the initial arrest and detention as a forced effort on behalf of legislation. Pretrial in the formulation of the Criminal Procedure Code is more directed at administrative oversight. In a pretrial ruling No. 04/Pid.Prap/2015/PN.Jkt.Sel., judges have intruded normative boundaries by extending the authority of a preliminary hearing object includes examining “determination of the suspect”, although not explicitly mentioned in the Criminal Procedure Code provisions. The problem in this research is “How is the existence of Criminal Pretrial Case Decision No. 04/Pid.Prap/2015/PN.Jkt.Sel., viewed from the aspect of justice and the rule of law?”. This research is a normative juridical approach method using the conceptual approach, case approach and the approach of legislation. Based on the findings, it was concluded that the examination in pretrial is a voluntair examination as an effort to actualize the procedural justice, but related to a quo case, to realize substantial justice the judges act by entering the “determination of the suspect” as an element of the object of new norms in the series Article 77 letter a Criminal Procedure Code into a pretrial authority. This creates legal uncertainty, since it contradicts with the principle of Lex Specialis Derogat Legi Generalis, Noscitur a Sociis principle, Ejusdem Generis principle and the principle of Expressio Unius Exclusio Alterius. With the model of reasoning methods argumentum a’contrario as one of the construction methods of the law against Article 77 letter a Criminal Code, it is known that the “determination of the suspect” is not a pretrial object. The actions of judges had exceeded its authority, and the logic of the law of the judge in the formation of the new norm object element does not include extensive interpretation but a construction model law by analogy to the method of interpretation is contrary to the principle of legality and is not allowed in criminal law.