Police Discretion Liability in the Function of Criminal Law Enforcement

International Journal of Research and Innovation in Social Science (IJRISS) | Volume IV, Issue IV, April 2020 | ISSN 2454–6186

Police Discretion Liability in the Function of Criminal Law Enforcement

Suhendar
Doctor of Law Program, Universitas Jayabaya, Jakarta-Indonesia

Abstract— Police discretion in potentially abused, injustice, corruptive actions are things that cannot be hidden anymore. Pretrial as a means of control and supervision in its practice has limitations. In government discretion, the State Administration Court has received to examine and test it as a form of liability, but on the contrary it is not so in police discretion. That means, police discretion in the function of criminal law enforcement cannot be examined and/or tested that is used without any liability. The research method used was normative legal research with statutory, conceptual, historical, and analytical approaches using primary, secondary, and tertiary legal material. Based on the result, police discretion liability in the function of criminal law enforcement in Law on Police and Criminal Procedural Code was not governed expressly. Therefore, the concept of police discretion must obtain clearer, more measured, and objective interpretation and explanation so that the legitimization and operational are application and in line with the conception of legal state, law enforcement, and law liability. The absence of mechanism and examining and/or testing institution could not be maintained anymore, so had to be open to the obligation to account for it, either by pseudo-administrative trial, pure administrative trial, or both, with internal liability or external liability. Besides that, the aspect of legitimization and operational of police discretion was not applicable, limited by and in the sense within the scope of its legality principle and specification, and could not be used in the function of criminal law enforcement except police investigator discretion as a form of special discretion and constituted a specification of police discretion, realized in free discretion and bound discretion according to the Criminal Procedural Code.

Keywords:Police Discretion; Criminal Law; Liability; Pretrial

I. INTRODUCTION

The existence of police discretion is familiar in the practical and academic world; in fact, it is considered a necessity in carrying out the duties and functions of the police which are too broad. There are a lot of definition of police discretion, one of which is a power or authority granted by law, or by the power of law to act based on one’s own judgment or belief, which action is more moral than law[1], to the understanding that the police discretion as a policy of the police to make an immediate decision that sometimes the decision violates the law in the public interest immediately which if the decision is not made will result in disruption of public order and interests[2].

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