Legal Discovery of Judges in the Criminal Cases of Narcotic Abuse Based on Law Number 35 of 2009

Abstract

Indonesia is a state based on law which is governed by a just law. This commitment is contained in Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia which states that Indonesia is a constitutional state. Some critical principles of the state of law is the existence of an independent and impartial judiciary and the supremacy of law that contains the principle of equality before the law and the principle of legality (due process of law). In accordance with the principle of a rule of law, Article 24 of the 1945 Constitution of the Republic of Indonesia affirms that the judicial power is an independent power to administer justice to enforce law and justice. Independent judicial powers are described in Article 3 of Law Number 48 of 2009 concerning the Judicial Power (Undang-Undang Kekuasaan Kehakiman/UUKK), namely that in carrying out their duties and functions, judges are obliged to maintain the independence of the judiciary. Other parties outside the judicial power are prohibited from interfering in judicial affairs. The rule of law also requires the principle of legality in all forms, namely that prohibited acts must be formulated in statutory regulations and these regulations must exist before the prohibited act is committed. Article 6 paragraph (2) UUKK states that no one can be brought before the court, unless the law provides otherwise. The principle of legality in criminal law is regulated in Article 1 paragraph (1) of the Criminal Code (Kitab Undang-undang Hukum Pidana/KUHP), which states that an act cannot be punished, except based on the strength of the existing criminal legislation. However, in the face of a concrete case that he/she is confronted with, a judge must make a decision based on law and justice. Law and justice have a broader meaning than statutory regulations. Article 5 Paragraph (1) of UUKK explains that judges are obliged to explore, follow, and understand legal values and a sense of justice that lives in society. This provision emphasizes that judges are not the mouthpiece of the law; they have the obligation to provide a sense of justice to the community. Judges should not be trapped in a vacuum if there is no law, the law is unclear or does not match the value of justice. This study seeks to examine how judges make or discover their legal decisions on criminal cases of narcotics abuse. It argues that in adjudicating criminal cases of the use of narcotics, judges need to find the law, because from the perspective of legism or legal positivism, Law Number 35 of 2009 concerning Narcotics is unable to provide justice for narcotics abusers for their own use. Narcotics abusers can be subject to criminal sanctions using the article on illicit narcotics trafficking as referred to in Article 111 Paragraph (1), Article 112 Paragraph (1) and Article 114 Paragraph (1) of Law Number 35 Year 2009 concerning Narcotics. The narcotics abuser for their own use should be punished in accordance with Article 127 Paragraph (1) letter a of Law Number 35 Year 2009 concerning Narcotics.