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Dasar pembenar Mahkamah Agung menerima peninjauan kembali yang diajukan jaksa penuntut umum dengan terdakwa Pollycarpus

NAHASON, Dr. Marcus Priyo Gunarto, S.H., M.Hum

2009 | Tesis | S2 Magister Ilmu Hukum

The existence of law enforcement has frequently drawn public attention, particularly, concerning judges’ verdicts due to its controversy. This can be viewed from the Supreme Court’s verdict in accepting judicial review submitted by public prosecutor with Pollycarpus Budihari Priyanto as the accused of twenty years (20) in jail. The verdict is controversial since the KUHAP (Penal Codes) as the legal base of submitted judicial review does not clearly state whether public prosecutor is allowed to submit the judicial review or not. Although the KUHAP does not clearly state the authority of Public Prosecutor to submit the review, in deciding the submitted review by public prosecutor with the Pollycarpus as the accused, the Supreme Court followed considerations available in the verdict dated 25 October 1996 No. 55 PK/Pid/1996 with Muchtar Pakpahan as the accused and the verdict dated 2 August 2001 No. 3 PK/Pid/2001 with Ram Gumalan as the accused. Both verdicts have been permanent jurisprudences; therefore, they can be referred as legal bases by other judges to make verdicts in other similar cases. Based on formal procedure, those liable to submit a review involve the accused or his or her heir. Hence, the judicial review by public prosecutor has deviated from the principles of legal certainty. Legal certainty (acts) is not the limit of sovereign; rather, it should be more viewed as “the principle of justice” requiring enforcement. Certainty is not everything; however, justice is a must; therefore, legal certainty is not absolute. The Supreme Court accepting the judicial review by public prosecutor is consistent with progressive legal paradigm, where in examining and deciding a case, judge are not bound by norms, and hence he or she is not merely riveted to the texts available in the acts. Progressive laws does not attempt to reduce laws to merely become regulations, but something greater, i.e. law is positioned with regard to humanity, particularly, the aspect of justice.

Kata Kunci : Judicial review,Public prosecutor,Jurisprudence,Justice


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