b. Judicative/applicative policy; and
c. Executive/administrative policy. (Arief,
1998)
Considering the elaboration of criminal law
enforcing policy above, it can be found three
powers/authorities: legislative/formative power in
the terms of stipulating or formulating the
punishable deed oriented to the basic problem in
criminal law including unlawful deed, fault/criminal
accountability, and the sanction that can be imposed
by the legislator. In relation to the legislation related
to terrorism crime, it can be seen that viewed from
the aspect of crime formulation, criminal sanction
and criminal responsibility have been formulated
very well as it includes all deeds of putting into,
producing, accepting, obtaining, submitting,
mastering, bringing, having supply or ownership,
storing, carrying, hiding, or releasing chemical,
biological, radiological, microorganism, nuclear,
radioactive weapons or its components from
Republic of Indonesia state intended to committee
terrorism crime will be punished with imprisonment
minimally 3 (three) years and maximally 20 (twenty)
years, life imprisonment or death sentence (Article
10 A).
Furthermore, Article 12 A governs the corporate
legal subject as the perpetrator of terrorism crime.
Article 15 governs the evil conspiracy, preparation,
trial, or assistance in terrorism crime to be
threatened with punishment. In addition, in
procedural law, there are a specialty facilitating the
law enforcers such as the authorized investigator to
arrest the accused of maximally 120 (one hundred
and twenty) days and if it is considered as
inadequate, it can be extended to 20 days with the
application filed to the Head of District Court.
Similarly, Public Prosecutor is authorized to arrest
the accused of up to 60 days and extended to 30 days
with the Head of District Court’s permission. In
addition, the investigator is authorized to perform
tapping (Article 31 A). Then, investigator, public
prosecutor, judge, advocate, reporter, expert,
witness, and penitentiary officer, as well as its
family in terrorism crime case, are entitled to be
protected by the state from potential threat
endangering their life and/or property, before,
during, and after the case examination process.
Furthermore, deradicalization is governed in Article
43D, BNPT institution’s authority in combating
terrorism in Article 43 E, and the involvement of
Indonesian Army (TNI) in combating terrorism in
Article 43 I. Viewed from the aspect of sanction
threat, Law Number 5 of 2018 has provided sanction
up to death sentence.
Judicative/applicative power is the law enforcer
or court’s power in implementing the criminal law,
and executive/administrative power is the
implementation of the criminal law by punishment
executing apparatus. Considering the three stages of
law enforcement policy above, the criminal tackling
is always oriented to the attempt of achieving
community wellbeing. As suggested by Barda
Nawawi Arief,(Barda Nawawi, 2002) the criminal
policy or the criminal overcoming attempt is
essentially an integral part of the social defense and
social welfare attempts.
In reality, the applicative policy implemented so
far is predisposed more to the law enforcement that
is punitive in nature, the policy of condemnation
according to the sanction threat as formulated in the
norm. But in fact, this punitive cannot give wary
effect, as indicated with many ex-terrorists finally
repeating their crime or becoming recidivism.
Therefore, the legislator has provided a non-punitive
instrument, deradicalization policy, as governed in
Article 43 D, intended to the accused, defendant,
convict, prisoner, ex-terrorism prisoner, or people or
a group of people who have been exposed to radical
terrorism. However, this policy has not apparently
been implemented optimally yet. It is because the
deradicalization program implemented by TNI-Polri
(Indonesian Army - Police) is just limited to
policymakers at headquarter or central levels such as
in Coordinating Ministry for Political, Law and
Security Affairs and BNPT and has not been
implemented to the foremost unit level such as
Koramil (Babinsa) and Polsek (Bhabinkamtibmas).
In a recent development, the synergy of
deradicalization program has not apparently been
able to anticipate many problems yet. In the term of
conceptualization, deradicalization is not only
limited to rehabilitation, because in fact this program
also involves terrorist prisoner families. Then,
deradicalization essentially aims to neutralize
ideology. For that reason, there should be an
expansion of coverage thereby involving not only
the prisoners but also their families and relatives.
Deradicalization program developed as a building
and guiding attempt to eliminate or at least to reduce
the predisposition of radicalism amid community to
prevent it from developing and threatening the living
within society, nation, state, and religion has not
been implemented optimally yet. Terrorism
deradicalization has not touched the grass root yet,
and TNI and Polri have not synergized massively so
that the program has not run comprehensively,
integrally, holistically and in an integrated manner
yet. Unclear chain of command in coordination,