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PROCEEDING International Conferenceand Call for Papers (ICCP) UNS 2016 1

PROCEEDINGThe 2016 International Conference and Call

for Papers (ICCP) UNS

Theme

“The Administration of Justice”

organized byFaculty of Law, Universitas Sebelas Maret

Surakarta, 19-20 November 2016


PROCEEDINGInternational Conference and Call for Papers (ICCP)

UNS

Theme

“Law and Sustainable Development amongst Developed and Developing Countries”

organized byFaculty of Law, Universitas Sebelas Maret

Surakarta, 19-20 November 2016

ReviewerDr. Hari Purwadi, S.H., M.Hum.

Dr. Pujiyono, S.H., M.H.Dr. Emmy Latifah, S.H., M.H

EditorRachma Indriyani, S.H., LL.M.


PROCEEDINGInternational Conference and Call for Papers (ICCP) UNS

Theme“The Administration of Justice”

ReviewerDr. Hari Purwadi, S.H., M.Hum.Dr. Pujiyono, S.H., M.H.Dr. Emmy Latifah, S.H., M.H EditorRachma Indriyani, S.H., LL.M.

Cover Design : Pustaka HanifContent Layout : ASA GRAFIKA Solo

Publisher : Faculty of Law UNSAddress : Jalan Ir. Sutami N. 36 A, Kentingan, Surakarta 57126 (0271) 664989Email : [email protected] ISBN : 978-602-7386-55-2


PREFACE

The 2016 International Conference and Call for Papers (ICCP) UNS, held in Surakarta from November 19-20 November, 2016, with an overaching conference theme of “The Administration of Justice”. This theme was developed due to highlighted issue in ensuring that public bodies and those who exercise public functions make the right decisions, and challenges on providing justice for all.

This proceedings from the conference provides multiple meanings of the term sustainability that divided into seven panels, namely Human Rights and Criminal Justice System; The Administration of Islamice Law; Maladministration and its Remedies; Environmental Crime and Administration of Justice; Bussiness Law Perspective; Customary Law; and Miscellanous. There were eight plennary sessions covering the different areas of the conference : Prof. Dr. Ida Madieha Abdul Ghani Azmi (International Islamic University Malaysia); Dr. A (Albertjan) Tollenaar (the University of Groningen); Prof. Huala Adolf, S.,H., LL.M., Ph.D., FCArb (Universitas Padjajaran); Pan Mohamad Faiz, PhD (The Constitutional Court of Indonesia); Prof. Dr. Supanto, S.H., M.Hum (Universitas Sebelas Maret).

These public talks, respectively, were very accesible to a general audience. The conference participants came from various background such as researcher, lecturer, practitioner, and college students as well. The first day before conference program was started by a special gala dinner to honor all of distinguished guests, invitation, and participants.

The selected paper that were presented on the conference program formed the heart of the conference and provide ample opportunity for discussion. Of the total number of presented papers, all papers that split into seven panels sub theme are included in this proceedings. We would like to thanks to the committee who were facing the challenge during the conference to achieve the aims of the event. All in all, the ICCP UNS was successful and we expect this proceeding could be useful for the entire scholar.

Dr. Hari Purwadi, S.H., M.Hum


LIST OF CONTENT

INVITED SPEAKER ARTICLE:

Dr. A (Albertjan) Tollenaar“Administration Of Justice In A More Repressive Administrative Law: An European Perspective”

PANEL SESSIONS:

PANEL 1Human Rights and Criminal Justice System1. Non-Penal Policy As Alternative Terrorism Law Enforcement In Indonesia (Siyono’s

Terorrism Case Studies)2. Model Of Law In Land Acquisition That Is Based On Fairness For Public Interest And

Rights Of Land’s Holder3. The Implementation Of Social Security Based On The Law Number 24 Of 2011 About

Social Security Organizing Agency (Bpjs)4. The Problematic Of Legal Foundation Of Interception Authority By Commission Of

Corruption Eradication Of Republic Indonesia After Decision Of Constitutional Court5. The Protection Of Suspect’s Right In Indonesian Criminal Justice System6. The Rights Of Children In Conflict With The Law7. Human Rights In PerspectiveUu No. 16 Of 2011 On Legal Aid8. Analysis Of International Human Rights Law Regarding The Treatment Of Unpleasant On

Women In War9. Protection Of Citizen’s Constitutional RightsIn The Health Care Beauty Clinic In The

Context Of Welfare State In Indonesia10. The Implementation Of Retributive Avoidance Principle In Juvenile Criminal Justice System

In Indonesia 11. Government’s Role In Improving Welfare Labor Informal Through Social Security To Greet

Asean Economic Community12. Juridical Review Of Grants For Goods Seized The Smuggling Crimes13. Legal Principle Of Citizenship In Indonesia14. Free A Judge From Prison Of Legal Positivism Paradigma Strategic Step Toward Corruption

Eradication In Indonesia15. Strengthening Institutions, Functions And AuthorityThe Indonesian National Commission

On Human Rights In Implementing The Protection And Enforcement Of Human Rights In Indonesia

16. The Correlation Of Oath And God In The Constitution Of Republic Of Indonesia 194517. The Link Between Fishing Industry And Abuses Of Human Rights18. Problematizing The Indonesian Police Force’s Authority In Criminal Law Enforcement19. The Implementation Of The Death Penalty In The Perspective Of Indonesian Human Rights

Law: Between Universalistic Versus Particularistic Views20. Interpretation Of Human Rights On The Material Unlawfulness In Corruption Crimes21. Restorative Justice As A Form Of Protecting Victims In The Renewal Of Criminal Justice System22. Optimization Of Child Identity Card As An Instrument Of Child Protection


PANEL 2The Administration of Islamic Law1. Policy Harmonization Between Zakat And Income Tax In Indonesia Law System2. Development For Productivity Of Endowment (Waqf) Based On Commercial Building

Build Operate Transfer (Bot)

PANEL 3Maladministration and Its Remedies 1. Fulfill Efforts Of Indigenous Women’s Political Rights In Order To Enforcement Human

Rights2. Setting Utilizationland Estates DisplacedFunction Principles-Based Social Rights To

Business3. Forest Fire And The Asean Economic Community’s Reification(Philosophical Perspective

Of Environmental Crime) 4. Examining of the Judge Verdict Quality in the Case of Environmental Crime Notably

Hazardous Waste5. The Recognition Of Forest People Rights Of Indigenous Peoples For Climate Change Justice

In Indonesia

PANEL 4Environmental Crime and Admnistration oh Justice1. Applying A Principle Of Premum Remedium In Law Enforcement Against Environmental

Crime To Achieve Sustainable Development In Indonesia2. Apparatus Concernes The Environment: Kuningan Government Policies In Water Resource

Conservation3. Legal Analysis On Forest Certification : A Means Of Social Change4. Law Enforcement Model On Environmental Crime Through Mediation5. The Effort to Overcome The Crime Of Forest Fire In Jambi Province6. Strengthening Environmental Law Enforcement Against Crime

PANEL 5Bussines Law Perspective1. The Challenges Of Indonesia Digital Startup Business2. Legal Perspective In Creating Employment Policies For Minimum Wage Payment Systems

In The Company.3. Legal Protection Of Intellectual Property Right Based Of Pancasila Justice In Smes Culinary

Sector4. Constitution Food ; Study Of Constititutionality Principles Of Food Sovereignty In The

Indonesia Constitution5. The Judge’s Independencerelated To The Dualism Of Tax Judicaturein Indonesia: A

Reconstructive Idea Of Tax Judicature In Indonesia6. Study Of Consumer Protection Law In The Financial Services Sector7. Conformity Of Law Number : 25 Of Regarding Capital Investment To The Improvement Of

Prosperity Bases On The 1945 Constitution8. The Settlement Of Electronic Commerce Transactions By Implementing Mediation Via

Online Dispute Resolution (Odr) In Indonesia9. Legal Culture Influence On Implementation Of Bankruptcy Law In Indonesia10. Good Corporate Governance (Gcg) In Hajj Management (An Overview On The Legal

Aspects Of Business)11. Land Bank Perspective For Low Income Housing In Indonesia


12. Development Of Intellectual Property Rights Particularly Copyright Of Musical And Song Works As A Fiduciary Guarantee Object To Get A Bank Credit In Indonesia

13. A Model Of Law In Health Care Fraud Prevention14. Legal Policy In Facilitating The Business Licensing To Improve The Investment Climate In

Indonesia15. Recontruction Burden Sharing Liability Corporationand Board Of Corporate Crime16. Legal Analysis On A Bankruptcy Petition That Is Filed By A Bank

PANEL 6Customary Law Perspective1. The Recognition And Protection Of Indigenous Land Right In Indonesia2. Notary As An Executor Of Inheritance Statement, Deed Of Testament And The Arcade Of

Olographic Deed Testament For Balinese Tribal Community3. The Utilization Of Customary Court As Means Of Penal Mediation : A Lesson Learned

From Papua, Indonesia4. ‘Rechtsverwerking’ The Principle Of Adat Land Law And It Embodiment In The National

Land Law5. The Utilization Of Customary Court As Means Of Penal Mediation : A Lesson Learned

From Papua, Indonesia

PANEL 7Miscellanous1. Problems Of Regional Head Election Simultaneously Against National Security2. Coomercial Court, Obstacles And Challenges In Practice3. Harmonisation Between The Election System Of Governors, Regents, Or Mayors With

Judicial Administrative System In Resolving The Dispute Of Determining The Candidates’ Pairs

4. The Legal Study Of Pancasila Economic System Based On The People-Oriented Concept5. The Law Enforcement Of Cybercrime After The Validity Of Law 11 Of 2008 On Information

And Electronic Transactions (Ite Law)6. The Living Law : To Fill Legal Gap Between Law In Action And Law In The Book From A

Judge`S Legal Reasoning Perspective 7. The Bomb Jokes In Flight: The Regulations And Cases In Indonesia8. Reconceptualization Of Administrative Justice System In The Administration Justice

Paradigm9. Import Of Food: Policies That Are Not Justice For Farmers10. The Existence Of The Regional Representative Council As The Representative Body Of

Regions In The Bicameral System11. Critical Analysis On Indigenous People Recognition In Indonesian Legal System12. The Widest Possible Autonomy In The Implementation Of Regional Government In

Indonesia13. Philosophy Mbaru Gendang In Manggarai By Democracy Pancasila Perspective14. The Performance Of Civil And State Administration (Datun) And Guard And Security Team

For Government And Regional Development (Tp4d) Of State Attorney In The Prevention Of Corruption (Political Perspective Against Decree Law Of Attorney General Of Republic Indonesia Number Kep-152 / A / Ja / 10/2015 On Establishing Guards And Security Team For Government And Development)

15. Attorney Authority As Government Law Office In Submitting Bankrupt For The Sake Of Public Interest

16. Criminal Liability Of Business Entity In The Form Of Limited Partnership In Environmental Protection And Management


17. Breakthrough Regulation Of Proposed Amount Related To Determine The Aspirations Of The Board Of Representatives In The Regional Development Planning

18. Reviewing Concepts Cyber Notary Of Notary Public Good19. Special Area As An Alternative Management Of Border Road In West Kalimantan Between

Indonesiaand Sarawak Malaysiain Progresive Law Perspective (Case Study On The Border In Kab. Sambas Kalimantan Barat To Sarawak Malaysia And Border In Kab. Sanggauwest Kalimantan Indonesia Sarawak Malaysia)

20. Political Law On Criminal Justice System In Handling Environment Degradation21. Optimizing The Role Model In Implementing Attorney Money Laundering Act To Achieve

Return On AssetsObtaining Results Of Corruption22. Harmonization Of Criminal Rule In Local Regulation In Semarang City23. Implementation Of Legal Protection For Outsourcing Labors In Companies Using

Outsourcing Service24. Administrative Sanction For Violation Taken By The Employee Provider Company25. Legal Policy Of Castration For Sexual Abuse Against Children Perpetrator26. Privatization Model Of Imprisonment Body As A Concept Of Prisoner Development27. Application System For Islamic Law Inheritance Of Indonesian Citizens Of The Islamic

Religious And Standing In Respect To The National Law As One Of The Renewal Of The National Legal System

28. Analysis On Legal Substance In Regency Land Asset Cooperation


PRIVATIZATION MODEL OF IMPRISONMENT BODY AS A CONCEPT OF PRISONER DEVELOPMENT

Desy MaryaniStudent of Doctoral Program of Faculty of Law of DiponegoroUniversity, [email protected]

ABSTRACTSeveral problems in imprisonment body recently prove the weakness of imprisonment body in enforcing the law mainly development functions so that problem complexity in imprisonment body. Problem identification in this paper is about the cause of development purpose in imprisonment body can’t be achieved and privatization model as concept of prisoner development in the future. Approach method in this research is normative juridical approach and secondary data as its source.

This research shows that first, factor which influence development in imprisonment body has not touched the purpose of imprisonment namely legal factor, law enforcement factor, facility factor, public factor and cultural factor.Second, based on comparative study which writer did, it can be made a privatization model of imprisonment body as concept of prisoner development in the future namely providing prisoner development utilities, cooperation between government and third party in developing, strict sanction enforcement to indiscipline prisoner in joining development program, warden must get legal training and especial department and get certificate before working in imprisonment body, policy about rehabilitation through job namely it must be regulated include amount of salary. Imprisonment body and third party through labor ministry make several preparations for skilled labor before free from prison. The purpose of privatization model is create a productive prisoner and return in society.

Keywords: Model, privatization, imprisonment body, developement

A. INTRODUCTIONHuman right recognition gained its international legitimacy through the UN approval of The Universal Declaration of Human Rights on 10 December 1948. In the context of Indonesia, the issues of human rights are implemented in the values of Pancasila playing the roles as the philosophical thoughts that become the foundation of nation and state livings. The elaboration of the human rights should reflect the noble values of the nation of Indonesia defined in the fifth pillar of Pancasila as the whole round and intact.1Pancasila is the main source of all sources of law; it implies that Pancasila is the foundation for all laws and the enforcement officials to enforce the law without exception of whenever and wherever it is located.

The principles of assurance, recognition, and protection of human rights is also reflected in the preamble of the 1945 Constitution. With the inclusion of basicfair and civilized humanity in the preamble of the 1945 Constitution, it means that human rights in Indonesia has become a fundamental state principle. This human rights recognition in the basic law is followed by the laws under the 1945 Constitution, including Law No. 12 of 1995 concerning on the

1 ST.Harun Pudjiarto, HAM di Indonesia, Universitas Atmajaya: Yogyakarta, 1993, pp. 49-50, http://eprints.undip.ac.id/13284/ (Accessed on 16 September 2016, at 12:16 WIB)


Corrections.2This Act supersedes all of the laws related to the prison system passed during the colonial Dutch government era which is not in line with the basic ideas of Corrections stated in the international regulations or even the foundation of the laws applied in Indonesia.

In the prison, prisoners come from various circles. The study concerning on the prisoners in Indonesia shows that average prisoners are from poor family, middle to lower social strata, dropped-out students or unemployed. It also suggests that they are mainly committed in conventional crimes (no white-collar crime). This also suggests that most of prisoners are coming from the lower economic and educational strata, as well as unskilled employees.3 Seeing this condition, the Correctional Institution plays the role as the place to improve themselves and their skills so that they can reunite to the people when they are released.

Self-relianceguidance program is an effort that is used in the Act No. 12 Year 1995 on Corrections, where the output of this program is all prisoners have the abilities and skills that can be used as initial capital for the concerned to return to live in a free society well and responsible.4

The functions of criminal sanctions in the criminal law are not merely to frighten or threaten the offenders, but are more than that, the existence of such sanctions should also be able to educate and improve the perpetrator.5Although it is essentially a sorrow, but punishment is not intended to make the prisoners feel suffered and not allowed to condescend.6In achieving these objectives, therefore the punishment is not only focused on the interests of the community but also emphasizes the protection of the offendersin the correctional system. The existence of this guidance model for the prisoners the correctional institution is inseparable from a dynamic, which aims to give more skills for the prisoners in facing life after they finish serving his sentence. This statement has relevance to the practice in correctional institution today, in which what is outlined in the Act of Corrections is merely an ideal expectation since the facts show the opposite situation. Its poor management of the correctional institutions in Indonesia can be seen in its complex problems within. The weaknesses of correctional institutions lay on carrying out the mandate of the Act, especially in guidance function. It requires, therefore, the solutions in solving the problems of guidance conducted by the officers so that the prisoners become the members of active and productive society.

B. DISCUSSION1. The causes of guidance systems in the correctional institution have not meet the

purpose of punishment

In achieving the purposes of punishment, it must be supported by the law enforcement. According to Soerjono Soekanto, the benchmark of the ineffectiveness of the law, it is

2 Adi Sujatno, Negara Tanpa Penjara (Sebuah Renungan), 3rd Edition, Direktorat Jenderal Pemasyarakatan, Jakarta, 2003, p. 30

3 Heru Susetyo dan Putri Kusuma Amanda, Dampak Kependudukan Terhadap Krimimilatas dan Keamanan Individu, Fakultas Hukum Universitas Indonesia, Jakarta 23 Desember 2011, Ditdamduk BKKBN, 2011, http://www.bkkbn.go.id/materi/Documents.pdf, (Accessed on 13 Februari 2016, at 11:15 WIB)

4 Adi Sujatno, Pencerahan di Balik Penjara Dari Sangkar Menuju Sanggar Untuk Menjadi Manusia Mandiri, Cetakan Pertama, Teraju (PT.Mizan Publika), Jakarta, 2008, p. 7

5 M. Sholehuddin, Sistem Sanksi dalam Hukum Pidana, Ide Dasar Double Track System dan Implementasinya, Raja Grafindo Persada, Jakarta, 2007, p. 162

6 Niniek Suparni, Eksistensi Pidana Denda dalam Sistem Pidana dan Pemidanaan, Sinar Grafika, Jakarta, 1996, p. 3


also worth considering the factors that influence the effectiveness of the law enforcement, these factors are: 1. Law factor2. Law officer factor3. Facility factor4. Society factor5. Cultural factor7

These five factor are highly interrelated since they are related to the essence of implementation success in guiding the prisoners. They, therefore, are the benchmarks of the guidance pattern causes in the correctional institution that have not met the purposes of the punishment. In detail, these factors can be described below:

1) Law FactorIn the practice of law enforcement in the field, there are times of conflict between the law certainty and justice. This is due to the conception of justice is an abstract formula, meanwhile the law certainty is normatively determined procedure. Therefore, the uncertainty of the laws or acts affect the implementation stage has not been optimal yet.

The unclear rules regarding the participation of the third parties in guiding the prisoners in the correctional institution, mainly to participate in the self-reliance program, lead the prison officer in the difficult situation in conducting the guidance.

2) Lawofficerfactor Negligence or inability of the law officer in conducting the guidance of the prisoners

affects the ineffectiveness or not achieving the purposes of the punishment. In this case, the law functioning, mentality or personality law officer play the important roles. If the regulation has been good meanwhile the quality of the officers is not, it will lead problems. Therefore, one of the keys to the success in the law enforcement is the mentality or the personality of the officers especially regarding the implementation of the correctional system.

The prison staff are not taught specifically to improve the prisoners’ skills. So far, the main job of the prison staffs are to maintain the security and the prison. As a result, it is found some abuses in the prison such as discrimination acts, drug and/or weapon smuggling, prisoner escaping, and rebellion.8

3) Facility Factor The prison facilities have very important role in the law enforcement. The lack of

prison facilities make it hard to harmonize the expected roles with the actual ones. This situation is because the correctional institution is not representatively built as well as lack of facilities which lead to the low optimality of the prisoners’ guidance in the prison.

4) Society factor It feels that there is still a lack of society role in order to participate to provide

guidance for the prisoners. This is due to the lack of public awareness of the prisoners seen in the few number of people participating in giving guidance to the prisoners. In addition, the members of society seem to be reluctant to welcome the

7 Soerjono Soekanto, Faktor-Faktor Yang Mempengaruhi Penegakan Hukum, Raja Grafindo Persada, Jakarta, 2007, p. 5

8 Adi Sujatno dan Didin Sudirman, Pemasyarakatan Menjawab Tantangan Zaman, Cetakan Kedua, VETLAS Production, Jakarta, 2008, p. 48


ex-prisoners to live together. As a result, the objective of serving sentence has not been met, i.e. to promote the return of prisoners into society.

5) Culture factor In the preamble of Act No. 12 Year 1995 regarding the Corrections, particularly the

weighing points c:

That the correctional system is a series of law enforcement aimed at keeping prisoners realize their mistake, improve themselves, and not to repeat the criminal act so that can be received by the members of the society, can actively participate in the development, and can live normally as good and responsible citizens.

Based on the stipulation aforementioned, it shows that the members of society should welcome the ex-prisoners return to the society and should not alienate them. The members of society should receive and guide them to unite in the society so that they can interact well and responsibly with other members of society. It is essentially necessary to eliminate the negative stigma attached to the ex-prisoners. The negative stigma attached to “label” the ex-prisoners, however,causes them find it difficult to reintegrate into society.

2. Formulation Model of Privatization of Correctional Institution as Guidance Concept for Prisoners in the Future

The guidance process of prisoners in the privatization of Correctional Institution can be illustrated in the following diagram:

Privatization of Correctional Institution

Nation

Correctional Institution Third Party/ Private Sector

Prisoner Wealth

Privatization Formula of the Correctional Institution as the guidance concept in the future can be illustrated in the following table:

Third Party/ Private Sector


9 Guo Wu Yuan, Xin Wen Ban Gong Shi, Criminal Reform in China, Information Office Of The State Council Of The People’s Republic Of China, August 1992, Beijing. P. 12, http://www.china.org.cn/e-white/criminal/index.htm,Accessed on 8 September 2016, at 09.00 WIB

10 Order No.35 of the President of the People's Republic of China on December 29, 1994 AboutPrison Law Of the people’s Republic of China, Article 68. http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383784.htm, (Accessed on 9 Oktober 2016, at 09:11 WIB)

No. Indonesia China The Future Formula

1 T h e s t a n d a r d o f t h e Correctional Institution facilities regarding to the skill workshop for the prisoners is arranged in Article 44 of the Decree of the Ministry of Justice and Human Rights of the Republic Indonesia No. M.01.PL.01.01 Year 2003 regarding to the Building P a t t e r n o f Te c h n i c a l Implementation Unit of Corrections: “Recreation/sport space (hall) is a multi-purpose space consisting of the guidance, consultation, and other activities place.”

R e g a r d i n g t o t h e Criminal Reform in C h i n a , C h i n a h a s s p e c i a l s p a c e s t o enhance the prisoners’ skills, namely: research r o o m , c l a s s r o o m , laboratory, as well as the equipment and materials to improve skills in the field of h o m e a p p l i a n c e s r e p a i r , s e w i n g , garment, cooking, hair care/salon, farming, carpentry. The spaces provided focus on vocational and technical skills.9

The addition of article in the Decree of the Minister of Justice and Human Rights of the Republic of Indonesia No. M.01.PL.01.01 2003 on the Building Pattern of Technical I m p l e m e n t a t i o n Unit of Corrections. T h e f o r m u l a t i o n added become “To improve job ski l ls of the prisoners, the Correctional Institution p r o v i d e s s p e c i a l workshop unit for the prisoners”.

2 I n t h e R e g u l a t i o n o f Minister of Law and Human Rights of the Republic of Indonesia No. M.2 PK.4-10 Year 2007 regarding to the terms and procedures of assimilation, parole, furlough ahead and leave free conditional, i.e. Article 14:“In the implementation of assimilation, it requires the cooperation between prison and the third parties. Therefore, its cooperation should be based on the agreement signed by Head of Prison and the Third Parties who give the jobs”.

Based on the Criminal R e f o r m i n C h i n a , t h e C h i n e s e G o v t has issued a policy t h a t s t a t e , p u b l i c organizations, units of the armed forces, enterprises, institutions, personages of various c i rc le s and fami ly members or relatives of prisoners would help prison in doing a good job in education and reform of prisoners.10

T h e a d d i t i o n o f anarticle regarding to the cooperat ion policies between the government and the third party/private s e c t o r i n g u i d i n g the prisoners. With the formulat ion of “The policy of the third-party/private sector cooperation the Correctional Institution in terms of guiding prisoners", these rules include:


11 Guo Wu Yuan, Xin Wen Ban Gong Shi, Criminal Reform in China, Op.Cit, P. 612 Ibid, P. 5


1) The third parties provide guidance in te rms of job t raining for the prisoners in correc-tional institutions by supplying the necessary produc-tion tools, namely by providing ma-chinery/equipment for the purpose of coaching skills and raw materials.

2) The product ion resul ts created/produced by the p r i s o n e r s a r e marketed by the t h i r d p a r t i e s /company.

3 In Act No. 12 of 1999 on Correctional Institution Article 15:(1) Prisoners are required

to fo l low p rog ram of guidance well and specific activities.

(2) T h e p r o v i s i o n o f guidance program stated in paragraph (1) shall be further regulated by Government Regulation

In Criminal Reform in China, the Chinese Government fosters a love for work and issues a policy "no work, no food" or promotes an idea "no work, no food" in the minds of prisoners; this is to help the prisoners overcome their bad habits.11

The addition of one article to the formula “If the prisoners do not take the guidance programs in the prison, it will be subject to the extension of the guidance" . In th is case, the prisoners are required to make up the meetings.

4 In Article 4 paragraph (2) in the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia No: M 01 PK. 04. 10, 2007, about the Mayor of Corrections: Terms to be appointed as Mayor of Corrections is: a. Civil Servants at least high

school or equivalent graduate.

In Criminal Reform in China, the Chinese government has issued a policy in which the prison officers should take certain training in law and specific vocations as well as hold a certificate first before being in charged. Therefore, the guidance will be in line with the applied regulations.12

The addition of the regu la t ion fo r the Mayor of Correction requirements in which, “ t h e o f fi c e r s t h a t have got the training in laws and specific vocations by showing its certificate as the Proper Mayor”.


13 Ibid, P. 7


b. Physically and mentally healthy;

c. H a v e e x p e r i e n c e working in a correctional environment at least 5 (five) years; and

d. Not undergoing discipli-nary punishment.

5 The provisions concerning o n t h e r e m u n e r a t i o n for the pr i soners tha t produces goods or services, stipulated in Government Regulation No. 57 of 1999 on Cooperation to provide guidance and mentor the prisoners: “In term of cooperation as defined in Article 2 (4) producing goods or services, the prisoners in the correctional institution entitled to receive wages that amount in accordance with the wage sys tem applied in the society”.

In Criminal Reform in China, the Chinese government has issued a pol icy to put the p r i s o n e r s t o w o r k in productive work. Skillful prisoners can enjoy the same benefits as employees of state-owned enterprises in terms of working hours, days off, the supply of oil, food and health and safety.13

T h e a d d i t i o n o f regulation, so i t is formulated to: “The cooperation agreement shall contain the rights and obligations of each party which contains about who is hiring and wage/premium for prisoners who are employed are: 1) During the guidance

process (period o f a s e n t e n c e ) i n co r r ec t iona l institutions, the amount of wage/premium received i s a s b ig a s an a p p r e n t i c e s h i p wage.

2) A f t e r r e l e a s e d (finished serving the sentence) and e m p l o y e d b y a third party/private e n t e r p r i s e , t h e amount of wage/premium received i s t h e s a m e a s t h e e m p l o y e e s who work at the c o m p a n y o r a t least the Minimum Wage Workers.



6 I n t h e p r o v i s i o n s o f Article 34 of Government Regula t ion No. 32 o f 1999 on the Terms and Procedures for Prisoners Rights: (1) Every Prisoner who

serves the sentence has good behavior is entitled to remission

(2) Remission as defined in paragraph (1) may be added when the prisoner while serving the sentence: a. has good deed for

the countryb. does anything useful

for the country or humanity; or

c. p e r f o r m s a c t s assisting the prison

In Criminal Reform in China, Information Office of The State Council of The People’s Republic of China, in Chapter VIII discussing about the Employment, Resettlement, Education and Pro tec t ion fo r Convicts Who Have Undergone Punishment and Liberation: “A reform institution through the labor needs to do some preparations of work before the prisoners to be released. In 1983, a notice about the introduction of the prisoners who had been released from prison, issued by the State Council which provides the legal basis for the resettlement of prisoners who have been released”.14

The addition of an article as a gift/reward fo r p r i soners who have behaved well and skillfully along in the prison. Therefore, the formula becomes “for prisoners who behave well and are skilled as well as meet the standards employed then the p r i son i s responsible through a third party in terms of job guarantee”.

C. CONCLUSIONBased on what have been stated above, it can be concluded as follows: 1. The causes of guidance patterns in correctional institution have not touched the purpose

of punishment are influenced by: Law factor, Law officer factor, Facility factor, Society factor, and Cultural factor.

2. The formulation model of correctional institution privatization as the prisoners’ guidance in the future includes: provision of facilities for prisoners’ guidance, partnership/collaboration between the government and the third party/private sector in giving the guidance, firm sanction enforcement to the indiscipline prisoners who do not take the guidance program, the prison officers and guards must obtain legal training and specific vocation as well as obtain a certificate before serving in prison,the policy on rehabilitation through work including the rules about who is hiring and the amount of wage for prisoners employed, prisons and third party/private sector through official labor do some preparation work for prisoners who are skilled before to be released from prison.

14 Ibid. P. 20


D. SUGGESTIONS1. Formulating the provision of facilities for prisoners’ guidance. 2. Formulating the partnership/collaboration between the government and the third party/

private sector in guiding the prisoners3. Formulating the firm sanction enforcement to the indiscipline prisoners that do not take

the guidance program4. Formulating the rules of requirement to be elected as the mayor of corrections institution

i.e.“officers who have taken legal training and specific vocation as well as obtain a certificate of proper mayor”.

5. Formulating the amount of wage/premium for the works done by the prisoners.6. Formulating the prizes/rewards for skillful prisoners.

REFERENCES

BOOK

Abdulkadir Muhammad, Hukum dan Penelitian Hukum, PT. Citra Aditya Bakti, Bandung, 2004, hal. 57

Adi Sujatno, Negara Tanpa Penjara (Sebuah Renungan), Cetakan Ketiga, Direktorat Jenderal Pemasyarakatan, Jakarta, 2003

----------------, Pencerahan di Balik Penjara Dari Sangkar Menuju Sanggar Untuk Menjadi Manusia Mandiri, Cetakan Pertama, Teraju (PT.Mizan Publika), Jakarta, 2008

Adi Sujatno dan Didin Sudirman, Pemasyarakatn Menjawab Tantangan Zaman, Cetakan Kedua, VETLAS Production, Jakarta, 2008

M. Sholehuddin, Sistem Sanksi dalam Hukum Pidana, Ide Dasar Double Track System dan Implementasinya, Raja Grafindo Persada, Jakarta, 2007

Niniek Suparni, Eksistensi Pidana Denda dalam Sistem Pidana dan Pemidanaan, Sinar Grafika, Jakarta, 1996

Soerjono Soekanto dan Sri Mamudji, Penelitian Hukum Normatif Suatu Tinjauan Singkat, Jakarta: Raja Grafindo Persada, 1985

Soerjono Soekanto, Faktor-Faktor Yang Mempengaruhi Penegakan Hukum, Raja Grafindo Persada, Jakarta, 2007

------------------------, Pengantar Penelitian Hukum, Universitas Indonesia Press, Jakarta, 2010

Peter Mahmud Marzuki, Penelitian Hukum, Kencana Pranada Media Group, Jakarta, 2010

WEBSITE

Guo Wu Yuan, Xin Wen Ban Gong Shi, Criminal Reform in China, Information Office Of The State Council Of The People’s Republic Of China, August 1992, Beijing, http://www.china.org.cn/e-white/criminal/index.htm, Diakses tanggal 8 September 2016, Pukul: 09.00 WIB


Heru Susetyo dan Putri Kusuma Amanda, Dampak Kependudukan Terhadap Krimimilatas dan Keamanan Individu, Fakultas Hukum Universitas Indonesia, Jakarta 23 Desember 2011, Ditdamduk BKKBN, 2011, http://www.bkkbn.go.id/materi/Documents.pdf, (Diakses tanggal 13 Februari 2016, Pukul 11:15 WIB)

Mohammad Aldyan, Penafsiran dan Konstruksi Hukum, Artikel, http://sidikppln.wordpress.com/2010/01/22/, (Diakses tanggal 5 Oktober 2016, Pukul 21:24 WIB)

Order No.35 of the President of the People’s Republic of China on December 29, 1994 AboutPrison Law Of the people’s Republic of Chinahttp://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383784.htm, (Diakses tanggal 9 Oktober 2016, Pukul: 09:11 WIB)

ST.Harun Pudjiarto, HAM di Indonesia, Universitas Atmajaya: Yogyakarta, 1993, hal. 49-50, http://eprints.undip.ac.id/13284/ (Diakses tanggal 16 September 2016, Pukul: 12:16 WIB).