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Tue, Apr 21st 2009, 08:08

Related to the serious infraction of human rights, there are implicit decisions that allow using retroactive code penal in regulations of Human Rights court. But in fact, especially in ad-hoc Human Right court of East Timor case after resolution vote, no one of the accused people was in jail based on court decision which has a legal supremacy. It could happen because the investigation of criminal act regulated in Human Rights regulation was adopted from Statuta Roma which regulated legal principle strictly 

Those statements were explained by Edward Omar Sharif Hiariej, S.H., M.Hum., an academic staff of Faculty of Law UGM, in his doctorate thesis defense, Friday (17/4). In this occasion he stated that the influence of the serious infraction of Human Rights towards the implementation legal principle dilemmatic, because there are contradictions between classic and modern criminal law. 

In classic criminal law context which purposes to protect the individual interests from the authorities’ power, is prevailed a retroactive code penal towards an action which is not a crime act when the action was occurring, but it was breaking the legal principle. Meanwhile, in modern criminal law context which purposes to protect the people from crimes, the application of retroactive code penal towards the actors of serious infraction of human rights can be understood as an effort to create law and order in the society.  

Related to the influence of serious infraction of human rights towards the implementation of legal principles, Edy also knew that there was contradiction between legal assurances versus justice. Exception for legal principle, the trial of the actors of serious infraction of human rights has ignored the legal assurance, because the actors were examined based on code penal which had not been made when the deed was occurring. Edy said that the examination of the actors of serious infraction of human rights would guarantee the justice, even though it ignored the legal principles

In his doctoral thesis entitled "Asas Legalitas dalam Pelanggaran Hak Asasi Manusia yang Berat", Edy stated that there were last contradictions related to the influence of the serious infraction of human rights towards the implementation of legal principles, namely national code penal versus international code penal. According to him, legal principles in national code penal were taken from written law with its four principles, lex praevia, lex scripta, lex certa, dan lex stricta. "Thus it is illegal to put someone in jail based on ordinary law.” said the man who was born in Ambon, 10 April 1973.

It was said by Edy that in national code penal context, the examination of the actors of serious infraction of human rights has broken the legal principles because it was contradictory to the four principles which has stuck tightly with the principle. On the other hand, in international code penal context, could punish the actors based on custom law because one of the international penal code resources is international customary.     

“Thus, the legal principles in international code penal context can be taken from international customary. Because international code penal is not conditioned as national code penal, so the implementation of the legal principle is not rigidly valid as in national code penal practice” explained Edy who was accompanied by Prof. Dr. Marsudi Triatmodjo, S.H., L.L.M. as the promoter and Prof. Harkristuti Harkrisnowo, S.H., M.A., Ph.D. as the co-promotor.   

The Tri Megasuri Januati’s huaband and the father of Hayfa Lavelle Xaviera acknowledged that the prosecution towards the serious infraction of human rights using the code penal instrument is not easy, because there were politic interfere in it. In national code penal context, the politic situation in a certain country would have big influence in prosecuting the crime actors, because it has close relationship with the authority of a regime. On the other hand, in an international code penal context, there are bargains between the state interest and the demand of international society in    penegakan HAM.

"The complexities of this problem have been complicated by the western politician’s actions which are always ambiguous towards the serious infraction of human rights, which are systematically conducted on this Earth” explained Edy who get Cum Laude predicate in his doctoral degree. (Public Relation UGM)