PENEMUAN HUKUM OLEH HAKIM DALAM PRAKTEK PERADILAN DI INDONESIA

Ias Muhlashin, S.H., NIM.: 18203010120 (2020) PENEMUAN HUKUM OLEH HAKIM DALAM PRAKTEK PERADILAN DI INDONESIA. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Judges in judging are not always obliged to apply the legal text literally, the essence of legal discovery itself lies in the role of the judge in deciding a case if no clear rules are found in law, then the judge is obliged to explore the values that live in society . The cause of the infertility of judges in upholding justice is due to an unhealthy law enforcement atmosphere. First, so far the paradigm of law enforcement is more oriented towards legal certainty, not legal justice. This shows that the judge is stuck on a series of procedures and ignores substance. Second, there is a kind of fear among the judges to carry out legal ijtihad or dig and discover the law. This is because there is still a deep belief that ijtihad is a religious idiom whose qualifications are difficult to fulfill. The focus of the study of this research, first how is the discovery of the law by judges in judicial practice in Indonesia, second is the discovery of the law by judges and the implications for legal reform in Indonesia. The principle of independence of judges is basically independence and freedom so that each decision contains an objective decision and has the value of justice. In Indonesia, judges have a freedom in determining their decisions, the purpose of this freedom is that they cannot be separated from the order in the prevailing laws and regulations by carrying out their duties, judges are not influenced by extra judicial or any group interests. This type of research is a qualitative research which is library research which uses court decisions and other literatures as the main object. The research approach used is the Sharia and juridical-normative approach by examining library materials or secondary data as the main material in the study. The results of this study indicate that judges in finding the law more often use the method of interpretation and legal discovery with the construction method. Among them are in the Constitutional Court Decision No. 46 / PUU-VIII / 2010 there were major and fundamental changes not only in the laws on marriage, but also in the order of social life. The legal construction established in the Constitutional Court Decision is based on the initial assumption that, originally, the law regulating the legality of children was determined by the legality of the marriage, so that children born from legal marriages were legitimate children. On the other hand, children born outside of legal marriages are illegitimate children. Subsequent decisions are found in the District Court decisions and the Constitutional Court decisions relating to the Decision No. 38 / Pid.Prap / 2012 / PN Jkt.Sel. and the Constitutional Court Decision No. 21 / PUU-XII / 2014, judicial institutions are a place to complain. The implication of pretrial decisions on whether or not the determination of suspects is legal will have an impact on the implementation of procedural law in Indonesia, namely it will extend the stages of the trial and demand anticipation of the readiness of law enforcement officials in facing a wave of pretrial requests.

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