The Definition of Due Process of Law

PERTANYAAN

What is the meaning of due process of law? Please explain.

INTISARI JAWABAN

The meaning of due process of law is a fair legal process. Due process of law is the formal application of laws or regulations (which are formulated to be fair) and also contains guarantees of the right to freedom of a citizen.

Due process of law comes from the 1215 Magna Carta document which means a constitutional guarantee that no one can be deprived of life, liberty, or property for arbitrary reasons.

So, how is due process of law implemented in the criminal justice system in Indonesia?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Arti Due Process of Law, written by Vira Sintia, S.H. from Chandra Marpaung & Partners, and was published on Tuesday, 29 August 2023.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Due Process of Law

Mardjono Reksodiputro stated that in Bahasa Indonesia, the meaning of due process of law is a fair legal process. Furthermore, the meaning of due process of law is not only in the form of formal application of laws or regulations (which are formulated fairly), but also contains guarantees of the right to freedom of a citizen.[1]

Tobias and Petersen state that due process of law originates from the 1215 Magna Carta document which means a constitutional guarantee that no one can be deprived of life, liberty, or property for arbitrary reasons (constitutional guaranty… that no person will be deprived of life, liberty or property for reasons that are arbitrary).[2]

According to Atip Latipulhayat, due process of law is a constitutional guarantee that ensures the existence of a fair legal process that provides an opportunity for a person to know about the process and has the opportunity to be heard why his or her rights to life, freedom, and property have been deprived or removed. Due process of law is a constitutional guarantee that confirms that the law is not enforced irrationally, arbitrarily, or without certainty.[3]

There are some points of due process of law as follows:[4]

1. Suspects and defendants have the right to be heard about how the events they are accused of occurred (hearing);
2. In the examination (since the first time in the police), they have the right to be accompanied by legal counsel;
3. The defendant is entitled to the widest possible opportunity to compile and submit his/her defense;
4. The public prosecutor's obligation to prove the defendant's guilt with legal evidence (legal evidence);
5. The examining court must be exempt from any pressure and with impartial judges (a fair and impartial court).

Due Process of Law in the Indonesian Criminal Justice System

The implementation of due process of law is reflected in the principles of the Criminal Procedure Code as follows:[5]

1. Equal treatment before the law without any discrimination;
2. Presumption of innocence;
3. The right to compensation and rehabilitation;
4. The right to legal assistance;
5. Right to be present before the court;
6. Free, speedy, and simple trial;
7. Courts that are open to the public;
8. Violation of individual rights (arrest, detention, search, and seizure) must be based on law and carried out with a written warrant.
9. The right of a suspect to be informed of the allegations and charges against him; and
10. The obligation of the court to control the implementation of its decisions.

Furthermore, M. Yahya Harahap in the book Pembahasan Permasalahan dan Penerapan KUHAP, argues that based on the ten principles in the Criminal Procedure Core, it can be said that Criminal Procedure Core adheres to the principle of due process of law where a fair legal process for suspects is the right of a suspect and defendant to be heard about how the crime occurred. In the examination against him/her, he/she has the right to be accompanied by legal counsel, to submit a defense. Meanwhile, the public prosecutor must prove his/her guilt before a free court and with an impartial judge (p. 41).

Continuing the above opinion, according to M. Yahya Harahap, the essence of due process of law has been formulated in Chapter VI of the Criminal Procedure Code, namely:

1. The right of self-incrimination. No one can be forced to give testimony that incriminates him/herself or others in a criminal offense;
2. It is prohibited to revoke and deprive the right to life, liberty, or property without due process of law;
3. Everyone must be guaranteed the right to self (person), residence, letters against unreasonable inspection and seizure;
4. The right to confront in the form of cross examination with the accuser;
5. The right to a speedy trial;
6. The right to equal protection and equal treatment of the law;
7. The right to have assistance of counsel in self-defense as stipulated in Article 56 section 1 Criminal Procedure Code. This right is also related to the principle of presumption of innocence, namely:[6]
   1. Prohibit investigators from practicing cruel coercion to obtain confession (brutality to coerce confession);
   2. Prohibiting investigators from conducting psychological intimidation.

Meanwhile, in the Judicial Authority Law, the provisions of due process of law are as follows:

1. The court shall adjudicate according to the law with no distinction between people (equality before the law);[7]
2. No one can be sentenced to punishment by the court but must be based on legal evidence according to the law, get a conviction that a person who is considered to be responsible, has been guilty of the act charged against him/her;[8]
3. No one shall be subjected to arrest, detention, search, and seizure except by written warrant of a lawful authority in the cases and in the manner provided for in the law;[9]
4. Every person who is suspected, arrested, detained, prosecuted, or brought before the court shall be presumed innocent until there is a court decision that states its validity and has obtained permanent legal force (presumption of innocence).[10]

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 8 of 1981 on Criminal Procedure Code;
2. Law Number 48 of 2009 on Judicial Authority.

Reference:

1. Abdul Latif. Jaminan UUD 1945 dalam Proses Hukum yang Adil. Jurnal Konstitusi, Vol. 7, No. 1 February 2010;
2. Atip Latipulhayat. Editorial: Due Process of Law. Padjadjaran Jurnal Ilmu Hukum, Vol. 2, No. 2, 2017;
3. Heri Tahir. Proses Hukum yang Adil dalam Sistem Peradilan Pidana di Indonesia. First Edition. Yogyakarta: LaksBang PRESSindo, 2010;
4. M. Yahya Harahap. Pembahasan Permasalahan dan Penerapan KUHAP. Jakarta: Pustaka Kartini, 1993.

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[1] Heri Tahir. Proses Hukum yang Adil dalam Sistem Peradilan Pidana di Indonesia. First Edition. Yogyakarta: LaksBang PRESSindo, 2010, p. 27.

[2] Abdul Latif. Jaminan UUD 1945 dalam Proses Hukum yang Adil. Jurnal Konstitusi, Vol. 7, No. 1 February 2010, p. 59.

[3] Atip Latipulhayat. Editorial: Due Process of Law. Padjadjaran Jurnal Ilmu Hukum, Vol. 2, No. 2, 2017, p. ii.

[4] Atip Latipulhayat. Editorial: Due Process of Law. Padjadjaran Jurnal Ilmu Hukum, Vol. 2, No. 2, 2017, p. 59.

[5] General Elucidation to Number 3 of Law Number 8 of 1981 on Criminal Procedure Code.

[6] M. Yahya Harahap. Pembahasan Permasalahan dan Penerapan KUHAP. Jakarta: Pustaka Kartini, 1993, pp. 95-97.

[7] Article 4 section (1) Law Number 48 of 2009 on Judicial Authority (“Judicial Authority Law”).

[8] Article 6 section (2) Judicial Authority Law.

[9] Article 7 Judicial Authority Law.

[10] Article 8 section (1) Judicial Authority Law.