ASSIGNMENT 1

MASTER OF ENFORCEMENT LAW

LEGAL RESEARCH & METHODOLOGY
(LAW751)

RESEARCH PROPOSAL TITLE: THE IMPLEMENTATION OF PRINCIPLE

EQUALITY BEFORE THE LAW IN THE ASPECT OF DOMESTIC VIOLENCE :
RESORT POLICE OF MATARAM, WEST NUSA TENGGARA, INDONESIA

PREPARED BY: MASNILA DAHNIATI

SUBMISSION DATE: REVISION

RESEARCH BACKGROUND
The principle of law is something that gives birth to the rules of law, and is a logical
ratio of the rules or regulations of law. Thus the legal principle is more abstract than
the rule or rule of law. According to Palon, the principle of law will never run out of
power to give birth to rules or regulations of law, but still exists and will be able to
continue to give birth to rules and regulations, and so on.1

The principle of equality before the law comes from the concept of the legal state
rule of law in the anglo Saxon legal system, which emphasizes three benchmarks,
namely 1). Supremacy of law, 2). Equality before the Law 3). The constitution is
based on the individual's rights. Indonesia as a country that makes constitution as
source of law requires rules must be used as a basic framework to regulate and
solve various problems that run the wheels of life of the nation and statesociety to
realize a safe, orderly,prosperous,and national life system.2

The theory and concept of equality before the law as adopted by Article 27
paragraph (1) of the Amendment to the 1945 Constitution provides the basis for the
protection of citizens to be treated equally before the law and government. This is
meant that all people are treated equally before the law. Equality before the law in
the simplest sense is that all people are equal before the law. Equality before the law
is one of the most important principles in modern law. This principle becomes one of
the pillars of the Rule of Law doctrine, which also spreads to developing countries
like Indonesia. If it can be said the principle of equality before the law is one of the
manifestations of the state law (rechtstaat) with the result that there must be equal
treatment for everyone before the law (gelijkheid van ieder voor de wet). In the
sense that equality before the law is a firm principle that indiscriminately applies for
perpetrators of crime whether or net they are former officials, officials, public figures
or law enforcement officials, regardless of ethnicity, religion.3

Mentioned Other than in the 1945 constitution as a supreme law in Indonesia, the
principle is also stated in this following regulations :

1. Criminal Code (KUHP) Letter a “Republic of Indonesia is a legal state based

on Pancasila and the 1945 Constitution that upholds human rights and that
guarantees all nationalities along with their position in law and government
and is obliged to uphold that law and government with no exceptions”.
2. Article 4 Paragraph (1) Law of the Republic Indonesia Number 48 Year 2009
Regarding Judicial Power : “Courts adjudicate according to law by not
discriminating against people”
1
Achmad Ali & Wiwi Heryani, 2013, Asas-Asas Hukum Pembuktian Perdata, Kencana, Jakarta, hal 117
2
Purwadi, Wira., Djafar, Mohamad Ali Akbar., Densi, Gilang Fatirah. (). Application Of The Principle Of Equality
Before The Law to Law Enforcement For The Realization of Justice In Society, Jurnal Legalitas, 15 (1), 1979-
5955. Doi: https://ejurnal.ung.ac.id/index.php/JL/article
3
L. Mulyadi, Hukum Acara Pidana. Jakarta: Citra Aditya Bakti, 2007.
 3. Article 3 Paragraph (2) Law of the Republic Indonesia Number 39 Year 1999
Regarding The Human Rights : “Everyone has the right to recognition,
guarantees, protection and fair legal treatment as well as legal certainty and
equal treatment before the law”, and “Everyone is recognized as a personal
human being who has the right to demand and obtain equal treatment and
protection in accordance with the dignity of his humanity before the law”
(Article 5 Paragraph (1) ).

Simply, the meaning of the principle of equality before the law is that all human
beings are same and equal before the law.4

The rules that apply in positive law in Indonesia also apply to people who are even
unfamiliar with the law itself. Such as the principle of Legal Fiction or Presumptio
iures de iure where everyone is considered to know the law, including farmers who
did not graduate from elementary school, or residents living in the interior. There’s
should be no discrimination and so as the specialized person infornt of The Law. If
the principle of equality before the law is enacted, then the logical consequence is
that the ruler and law enforcer must implement and realize this principle in state life.5

As an early stage agency in complaints of a crime, Indonesian police institution is

one of the state tools that is ready to serve and care for the community as stated in
Law Number 2 of 2002 concerning the national police of the Republic of Indonesia.
In it’s division, The organization of the Indonesian National Police is hierarchical,
headed by the state police of the Republic of Indonesia (POLRI) general
headquarters in Kebayoran Baru, South Jakarta, Indonesia. These are the following
divisions of police instutition based on it’s theritory scope.6

1. Regional Police Force (Kepolisian Daerah, Polda) which covers an

entire province and is headed by a two-star police general (Police Inspector). It
was formerly known as Police Commissariats (Kepolisian Komisariat) and
Regional Police Commands (Komando Daerah Kepolisan, Komdak).
2. Resort/Departmental Police Force (Kepolisian Resor, Polres), covers a city
or regency and is usually headed by a police officer holding the rank of Police
Chief Commissioner for urban areas and a Police Deputy Chief Commissioner
for rural areas. It was formerly known as Resort/Departmental Police Commands
(Komando Resor Kepolisian).
3. Sectoral Police Force (Kepolisian Sektor, Polsek) which covers a district and is
usually headed by a police officer holding the rank of Police Commissioner for
urban areas and a Police Deputy Commissioner for rural areas.
4
<https://www.hukumonline.com/klinik/a/makna-asas-iequality-before-the-law-i-dan-contohnya-
lt6233304b6bfba/> accessed on 1 December 2022
5
<http://www.hukumonline.com/berita/baca/lt4fd56cf069398/prof-ramly-dan-iequality-before-the-law-i.> accessed
on 1 December 2022
6
<https://en.wikipedia.org/wiki/Indonesian_National_Police> accessed on 5 December 2022
Furthermore, In police agencies there are various types of public units available in
each agency. One of them is the Criminal Detective Unit. As the unit that is most
visited by the community to make complaints, especially in the case of complaints of
a criminal act, this unit will be the first place where people will be faced with the law.

As a police department that carries out the main duties of the National Police in the
jurisdiction of the district or city, The Resort Police of Mataram handles many
criminal cases in general. However, this research will focus on implementing the
principle of equality before the law through handling domestic violence criminal
cases. The principle that apply not only based on the no differences in the
background of society, wether they are woman or man, rich or poor but also the size
of cases that they brought to realm of law. Including criminal cases that are too
private to complain about, such as child abuse, rape crime and Domestic Violence.
However, the term violence is used to describe behavior, whether overt, or covert,
either offensive or defensive, which is accompanied by the use of force to others. 7
But unlike other forms of violence, domestic violence is particularly special because
of its private and sensitive nature.8

According to Law of Republic Indonesia Number 23 Year 2004 Regarding

Elimination of Domestic Violence, the crime is difined as any action towards a
person, especially a woman, that causes affliction or suffering physically, sexually,
psychologically and/or the neglect of a household or family including threats to do
something or forced to do something or the expropriation of one’s liberty in a way
that is against the law in the scope of the family (Article 1 Paragraph (1) ). The
definition of the elimination of domestic violence was also normatively defined by the
law with the guarantee that is given by the State to prevent domestic violence, to
crack down on the perpetrators of domestic violence and to protect the victims of
domestic violence (Article 1 Paragraph (2) ). No matter how sensitive and personal
the domestic violence crime case is, the case deserves to be reported to the police
agency and the complainer is entitled to be dealt with.

The smallest area of violence against women in the sector is the household.
Domestic violence is a phenomenon that invites concern from various parties.
The peak of this concern was manifested in the form of the enactment of Law
Number 23 year 2004 Regarding the Elimination of Domestic Violence The Act is
expected to be a legal guarantee for the protection of family members from all acts of
domestic violence. However, factually, the number of domestic violence has actually
increased. Domestic violence is a cross-class, cross-ethnic and interfaith

7
https://ditjenpp.kemenkumham.go.id/index.php?option=com_content&view=article&id=647:kekerasan-dalam-
rumah-tangga-kdrt-persoalan-privat-yang-jadi-persoalan-publik&catid=101&Itemid=181 accessed on 7 December
2022
8
<https://vc.bridgew.edu/jiws/vol20/iss7/11/> accessed on 7 December 2022
phenomenon. Reports of domestic violence from year to year are increasing both in
quantity and quality.9
Domestic violence is not only synonymous with actions that lead to criminalism such
as beatings, persecution, intimidation and body harm. However, matters of a spiritual
emotional nature are also categorized as domestic violence. For example polygamy.
Although there is no prohibition in religion, if this act is carried out without the
knowledge of the legal wife, it is categorized as domestic violence which is
categorized as psychic violence in the Domestic Violence Law. For this reason, all
types of physical, psychic, sexual violence and domestic neglect enter the realm of
this discussion.

When a victim of domestic violence reports that she or he is a victim of violence, in

order to fulfill the mandate contained in the Human Rights Law which states that
everyone has the right to demand and obtain the same treatment and protection in
accordance with their humanitarian dignity before the law, then the police should
handle reports related to violence such as Domestic Violence.

However, the legal reality in Indonesia generally means that a reported domestic
violence crime will only end in mediation. There are many factors that cause
domestic violence cases not reach the court or will only reach the report phase.
Some of the obstacles that are often encountered are victims who do not understand
that the actions of violent perpetrators are criminal acts. On the other hand, the
victims were also hesitant to report to the police. For reporting, there are many
deadlines between the incident and when the victim reports so that the scar or post-
mortem results are sometimes considered unsupportive and valid to ensnare the
perpetrator. Apart from the fact that domestic violence reports are too private to be
criminalized, the reluctance of the police in handling the case, which is considered to
be just a family matter, is also an obstacle and a record for the public to reconsider
making a report.

Basically, a report or complaint is one of the efforts so that the right to a sense of
justice can be obtained. In this connection, it contains the provisions of Article 17
Law Of Republic Indonesia Number 39 year 1999 Regarding The Human Rights
which guarantees, "Everyone, without discrimination, has the right to obtain justice
by filing applications, complaints and lawsuits, both in criminal, civil, and
administrative cases and is tried through a free and impartial judicial process, in
accordance with the procedural law that guarantees objective examination by honest
and fair judges to obtain a fair verdict and true." Based on that, because of report is
the nature of rights, the state represented by its apparatus (including the police) is
always positioned as a stakeholder in the obligation to respect, protect and fulfill the
rights of people. Therefore, the Criminal Code Procedures (KUHAP) then gives

9
<http://journal.unj.ac.id/unj/index.php/insight/article/view/3178/2263> accessed on 8 December 2022
authority to the police as investigators because of their obligation to receive a report
or complaint from a person about a criminal act (Article 5 letter ‘a’ paragraph (1) and
Article 7 paragraph (1) letter ‘a’). In fact, investigators who know, receive a report or
complaint about the occurrence of an event that is reasonably suspected of being a
criminal act must immediately carry out the necessary investigative actions (Article
102 paragraph (1) of the Criminal Code Procedures). But nowadays, for some
people, facing the law is the same as spending a certain amount of money.
Reporting to the police station is considered to be a hassle and dealing with law
enforcer will take a lot of time. As a result, people think it's better not to deal with law.

PROBLEM STATEMENT
Troughtout 2021, National Commission On Violence against Women (Komnas
Perempuan) received 338,496 complaints in 338 cases. 2,363 cases of violence
against women and 771 cases of violence against wives. There have been many
views on domestic violence, the most common of which is domestic violence as a
family problem that must be resolved internally by the family. Admittedly, the
Domestic Violence Elimination Act is a progressive breakthrough because it changes
people's mindset about domestic violence as a private matter into state affairs as
public law. The state is of the view that any form of violence, especially domestic
violence, is a crime with a fairly high threat of criminal sanctions..
In many cases, domestic violence, in addition to being considered a private family
matter, is also said to be a complaint. Law number 23 Year 2004 Regarding the
Elimination of Domestic Violence, Articles 51, 52 and 53 state that complaints are
only domestic violence as referred to in Article 44 Paragraph 4 “Physical violence
committed by husbands against wives or vice versa that does not cause illness or
obstruction to carry out office work or livelihood or daily activities”. Article 45 :
“Psychic violence committed by the husband against the wife or vice versa that does
not cause illness or obstruction to carry out the work of the position or livelihood or
daily activities” and article 46, which is sexual violence.10

In practice, domestic violence cases are always directed to reconciliation that ends
with the retraction of the report. Even in some cases the Police still use the
provisions of Article 351 of the Criminal Code even though as a law-domestic
violence it applies as a lex specialis. In addition, often law enforcement officials only
see one form of domestic violence, but in fact domestic violence occurs in various
forms simultaneously, physical violence that occurs is caused by previous psychic
violence and economic violence and even sexual violence. This is rarely expressed
by law enforcement officials, and often even domestic violence opinions occur
because of women's mistakes (crime by victim) so that there is victimization of
victims, through verbal violence by the police.

No matter how fair the legal decision is, if the parties such as the police act no as in
legal procedures, then the result of the law itself will have a bad impact on the image
of the law in Indonesia. Adhering to the principle of equality before the law no one
should receive special treatment from one another in terms of reporting a criminal
act. However, from several cases that have occurred in many police department in
Indonesia, there are indications that the principle of Equality Before The Law is
ignored, especially in reports of domestic violence criminal cases.

In the aspect of Domestic Violence, like the case in February 2022, Priyanka Pragas,
a female victim of domestic violence (KDRT) in Medan, Indonesia, reported her
husband Romi to the Resort Police Of Medan. The mother, who has a child,
10
<https://nasional.kompas.com/read/2022/09/30/16111871/kdrt-bukan-kejahatan-biasa> accessed on 8
December 2022
complained of being molested and handcuffed and then humiliated in front of the
residents of the complex accusing her of cheating. Not only that, Romi also recorded
it. While making a report to the police, Priyanka admitted that her report could not be
processed because it was considered a split type of report.11 Police then ask the
victim return to Deli Tua Police Station because the victim had made a report on
the same case and the same perpetrator 2 years ago. However, the Resort
Police of Medan Tuntungan forgot that this time the scene of the crime was in the
jurisdiction of the Medan Tuntungan Police. As a result, the victim, who came
with his younger brother and his children, one of whom was a toddler, could only
surrender, when the officer directed her to report back to the Deli Tua Police
Station.

In February 2018, a 35-year-old woman Jamiah from Banjarmasin, Indonesia got

domestic violence which resulted in her suffering from burns to the back. According
to the woman's confession as reported by the media, she was often beaten by her
husband even to the point of breaking her right hand. Jamiah had to be hospitalized
after her body was washed away by gasoline and set on fire by her own husband
because their youngest child spilled rice. When reporting the case to Sectoral Police
Force Of Banjarmasin, the report was rejected on the grounds that the victim
should not be represented by other parties. In another sense, a woman's domestic
violence report can only be processed if she personally reports the case.12

In January 2022, a domestic violence case was also reported by a woman with the
initials SW, 36 years from south Sulawesi, Indonesia. SW is said to have
experienced domestic violence for a long time and has been undergoing visum at
Bhayangkara Hospital. Unfortunately, she could not be processed because the
perpetrator, who was SW's husband, had a brother who was a police officer. The
Women Empowerment and Child Protection Service has even accompanied the
victim to report but it cannot be processed, in fact they are intimidated. The only
reason is because the perpetrator is a family of police officer. One of his brothers
served at the Police Headquarters. The other is a police officer on duty at
Bhayangkara Hospital.13
These are several cases that the principle of equality before the law does not work
as the law mandates.
The application of the principle of equality before the law to people who report cases
to the police has not been carried out properly as mandated by the law. Several
cases that appear in the mass media as mentioned above have a serious impact on

11
<https://www.harianmetro.id/news/laporan-ditolak-korban-kdrt-laporkan-oknum-polisi-unit-ppa-polrestabes-
medan-ke-propam-polda-sumut/>accessed on 10 December 2022
12
<https://kumparan.com/banjarhits/heboh-istri-dibakar-keluarga-korban-kdrt-kecewa-polisi-tolak-laporan/
full>accessed on 10 December 2022
13
<https://www.sonora.id/read/423158119/ironis-punya-kerabat-polisi-pelaku-kdrt-di-makassar-kebal-hukum>
accessed on 10 December 2022
people's sense of justice. There is a culture of favoritism in law enforcement who
handle cases from a report. As with reports of domestic violence cases, most of
which are women, police as law enforcement tend to underestimate these reports
and consider them only as family problems that can still be corrected familially, or
even for some other reason they will literally rejected it. This is one of the factors why
victims of domestic violence are reluctant to report their cases. This kind of practice
seems to have become a tradition and an open secret. It shows the unprofessional
performance of law enforcement officers. In line with that, it shows that the legal
culture that lives and develops in the community is experiencing abuse power, thus
causing a crisis of public confidence in the performance of law enforcement officers.
Wether it's a big or small case, the institutional police should not deny reports of
alleged criminal acts from people that reporting. Even if the police refuse, it must be
for clear legal reasons and can educate the people. Reflecting on some of the cases
mentioned by the author above, there is a gap between what is mandated in the
1945 Constitution and the regulations below it related to equal rights before the law
and practices that occur in life, especially in reporting criminal case as Domestic
Violence which the victim as reporter generally are womens. Law enforcement
should uphold moral, professional in carrying out duties and integrity pacts, to bring
about equality before the law as mandated by the Law.

RESEARCH QUESTION:
1. What is the role of the Resort Police of Mataram in dealing with equal rights to
Domestic Violence reports?
2. How is the Implementation of Principle Equality Before The Law in the aspect
of Domestic Violence in Indonesia?
3. How can the existing Laws and Regulations realize Equality Before The Law
in the aspect of Domestic Violence reports?

RESEARCH OBJECTIVES:
1. To Examine the principle of Equality Before The Law in the aspect of
Domestic Violence applied in Indonesia
2. To Study the role of Resort Police of Mataram in dealing with equal rights to
Domestic Violence reports
3. To propose the possible amendments and reforms on the existing laws in
realizing the principle of equality before the law from the aspect of domestic
violence