Definition of Equality Before the Law and Examples

PERTANYAAN

What is equality before the law?

INTISARI JAWABAN

In short, the principle of equality before the law means that all humans are equal before the law. In Indonesia, there are several legal bases that emphasize the principle of equality before the law, including the 1945 Constitution, Criminal Procedure Code, Human Rights Law, Judicial Authority Law, and the International Covenant on Civil and Political Rights ("ICCPR") which has been ratified through Law 12/2005.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Makna Asas Equality Before The Law dan Contohnya, written by Bernadetha Aurelia Oktavira, S.H., and was published on Thursday, 17 March 2022.

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The Meaning of the Principle of Equality Before the Law

The principle of equality before the law is related to the provisions of Article 27 section (1) 1945 Constitution which states:

All citizens shall be equal before the law and government and shall uphold the law and government with no exceptions.

Furthermore, Article 28D section (1) 1945 Constitution also stipulates:

Every person is entitled to recognition, guarantees, protection, and certainty of a just law (fairness) and equal treatment before the law.

Simply put, the meaning of the principle of equality before the law is that all humans are equal before the law.

Summarized from the article entitled Prof. Ramly and Equality Before the Law, the meaning of the principle of equality before the law is found in almost all state constitutions. This is the norm that protects the human rights of citizens. Prof. Ramly Hutabarat in his book entitled Persamaan di Hadapan Hukum (Equality Before the Law) di Indonesia writes, that if this is included in the constitution, then the logical consequence is that the authorities and law enforcers must implement and implement this principle in the life of the state.

According to Ramly, the theory of equality before the law in the 1945 Constitution is a link between rights and obligations that must function according to their respective positions. Equality before the law means that every citizen must be treated fairly by law enforcement officials and the government.

Furthermore, he explained, that in terms of constitutional law, every government agency, especially law enforcement officials, is constitutionally bound by the value of justice that must be implemented in practice.

Apart from being included in the constitution, the principle of equality before the law can also be found in the following laws and regulations:

Considering section letter a Criminal Procedure Code:

that the Republic of Indonesia is a state of law based on Pancasila and the 1945 Constitution which upholds human rights and guarantees all citizens equal status in law and government and must uphold the law and government with no exceptions;

Article 4 section (1) Judicial Authority Law:

The court shall hear according to the law with no distinction of persons.

In addition to the Criminal Procedure Code and the Judicial Authority Law, the principle of equality before the law is also found in the Human Rights Law with the following provisions:

Article 3 section (2) Human Rights Law:

Every person is entitled to recognition, guarantees, protection, and fair legal treatment as well as legal certainty and equal treatment before the law.

Article 5 section (1) Human Rights Law:

Every person is recognized as a private human being who has the right to demand and obtain equal treatment and protection in accordance with his human dignity before the law.

Also read: The Meaning of Equality Before the Law and Its Application

Then, the International Covenant on Civil and Political Rights ("ICCPR") which has been ratified through Law 12/2005 also states:

            Article 16 ICCPR:

Everyone shall have the right to recognition everywhere as a person before the law.

Article 26 ICCPR:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.

Example of the Application of the Principle of Equality Before the Law

After knowing some basic legal references about the principle of equality before the law, the next is an example of the principle of equality before the law which is the provision of legal aid that guarantees justice for all.[1]

Also read: This is Legal Aid for Impoverished Justice Seekers

The provision of legal aid to impoverished people (the poor), law-illiterate, and oppressed people is intended to provide access to justice, which is a reflection of the principle of equality before the law. In practice, assistance for the poor becomes a duty that is required in seeking justice not based on conscience.[2]

Currently, the principle of equality before the law has not been used as the main benchmark in providing legal aid. In fact, if this principle is properly and appropriately reflected in law enforcement in Indonesia, and there should be no more poor people who experience legal discrimination and injustice.[3]

Also read: Difference between Pro Bono and Legal Aid

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

Legal Basis:

1. The 1945 Constitution of the Republic of Indonesia:
2. Law Number 8 of 1981 on Criminal Procedure Code;
3. Law Number 39 of 1999 on Human Rights;
4. Law Number 12 of 2005 on the Ratification of International Covenant on Civil and Political Rights;
5. Law Number 48 of 2009 on Judicial Authority.

Reference:

Ni Gusti Agung Ayu Mas Triwulandari. Problematika Pemberian Bantuan Hukum Struktural dan Non Struktural Kaitannya dengan Asas Equality Before the Law (Problematic Provision of Legal Assistance Structural and Non-Structural Relation to the Basis of Equality Before the Law). Jurnal Ilmiah Kebijakan Hukum, Vol. 14, No. 3, November 2020.

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[1] Ni Gusti Agung Ayu Mas Triwulandari. Problematika Pemberian Bantuan Hukum Struktural dan Non Struktural Kaitannya dengan Asas Equality Before the Law (Problematic Provision of Legal Assistance Structural and Non-Structural Relation to the Basis of Equality Before the Law). Jurnal Ilmiah Kebijakan Hukum, Vol. 14, No. 3, November 2020, p. 540.

[2] Ni Gusti Agung Ayu Mas Triwulandari. Problematika Pemberian Bantuan Hukum Struktural dan Non Struktural Kaitannya dengan Asas Equality Before the Law (Problematic Provision of Legal Assistance Structural and Non-Structural Relation to the Basis of Equality Before the Law). Jurnal Ilmiah Kebijakan Hukum, Vol. 14, No. 3, November 2020, p. 550.

[3] Ni Gusti Agung Ayu Mas Triwulandari. Problematika Pemberian Bantuan Hukum Struktural dan Non Struktural Kaitannya dengan Asas Equality Before the Law (Problematic Provision of Legal Assistance Structural and Non-Structural Relation to the Basis of Equality Before the Law). Jurnal Ilmiah Kebijakan Hukum, Vol. 14, No. 3, November 2020, p. 550.