The essence of the law is the Rights and Duties, which upheld the Law is nothing else to protect the human rights that have been possessed from birth and can not be contested (fundamental Right), the same right to get an equal treatment in front of law (equality before the law) is also universally accepted as one of the main principles of a state law.
Professor. Denny Indrayana in his article entitled Should Discriminatory Laws, said that the implementation of the law sometimes must be Dismikrinatif to achieve a justice.
Equality before the law actually requires a different legal treatment to everyone, in different circumstances. Clearly, the law is not uncommon to be treated differently, discriminatory effect, even to the law as unfair. That is what is known as the concept of positive discrimination (affirmative actions).The Law that applies equally to everyone, albeit in different circumstances, it tends to be unfair. (Http://www.seputar-indonesia.com/edisicetak/content/view/502650/1/)
Equality before the law actually requires a different legal treatment to everyone, in different circumstances. Clearly, the law is not uncommon to be treated differently, discriminatory effect, even to the law as unfair. That is what is known as the concept of positive discrimination (affirmative actions).
Law applies equally to everyone, albeit in different circumstances, it tends to be unfair.
In the same article Professor Denny gives examples in the political world,
representation of women in parliament was given a certain percentage requirements. Minimal requirement is certainly not fair to men, but it needed to be more representative of women and helpless to defend the interests of women in parliament.
In the political world to another, the ownership threshold of seats in parliament (parliamentary threshold) and threshold conditions presidential nomination of candidates (presidential threshold) can be viewed as discriminatory rules for smaller parties. Smaller parties that gained a bit of noise may not get a seat in parliament or may not be able to propose candidates for president.
However, the threshold rule discrimination is wrong. The Court has repeatedly decided the threshold so that no discrimination is against the constitution. That is positive discrimination. Prof. Denny reiterated about the deskrimination in the application of law bring justice in the world economy, the example given Prof. Denny is a former Malaysian Prime Minister Mahathir Mohamad had implemented an economic system that is more pro-bumiputra groups. (Http://www.seputar-indonesia.com/edisicetak/content/view/502650/1/)
deskriminatif above is bring a sense of justice and provide protection of fundamental rights of every person.
But the same thing Jenedjri M Gaffar add that in our cosntitution, guarantees equality before the law stated in Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution, was a guarantee of protection provided for in Article 28I diskrimisai paragraph (2) 1945 Constitution.
Statement of equality before the law has the consequence not only everyone in the "same condition are entitled to equal protection of the law" or "against those who commit acts of violation of the same law imposed the same penalty," but also have consequences in the law enforcement process. Every person entitled to legal treatment
This translates, among others, a duty of judges to hear and treat the parties equally (audi et alteram partem) and an equal right to justice (access to justice) through the same access to obtain a public defender (access to legal counsel). Without equality before the law, there will be abuse-
Differences in viewpoints gone into before the jurist above shows that the law can not be viewed only from one side only, but the law should be viewed as a whole, but in essence they are have a same opinion , but at the point of view where Prof. Denny considers that the law does sometimes do have to be discriminatory and the discriminatory in the legal point of view of Prof. Denny who see this is not the process but viewed from an outcome or decision that has been imposed, that the decision is that when viewed as a general fact that the decision was discriminatory, but in a discriminatory decision that there is justice.
different point of view of Mr. Janedjri M Gaffar, the application of the principle of equality before the law had to be interpreted as equal treatment of subjects with the same conditions, viewed from kesuluran enforcement process itself, from the process, the treatment until all decisions have to be decided fairly as possible because nature is important in view of Mr. Janedjri M Gaffar is the treatment a person should be treated the same, regardless of any status, any condition of the source sama.Sebaliknya, discrimination is different treatment of the condition and the same subject.
law should be an instrument to achieve equality through affirmative policy actions. Such a law can not be said to be true that the law was not discriminatory because it treats differently to the same, but it is fair because it treats differently to different things. This law is the exception, in the sense that can not be treated on an ongoing basis and in all places and conditions.
Of course, differences in treatment should be discontinued when equality is achieved or has a change of subject to certain legal conditions. Provision of such a quota for women in parliament would have to be stopped because of a negative discriminatory when social conditions are acknowledged and put women together with men.
Provision of legal assistance to certain individuals should also be discontinued when the person has had the power to independently access justice through service advocates. The principle of equality before the law in law enforcement can not be understood that the same violations of law must always be sentenced the same. Equation should not be interpreted only from the normative aspects of categorical.
The process of examining and deciding the case is the process of finding facts and applying the norms of an event to the fact tersebut.Setiap legal events have the background and characteristics of different conditions so it is not always the same, although sentenced in the category of the same offense. Background conditions and characteristics are very important because it determines the error rate and the proclamation that can be given.
Thus, the imposition of different penalties for similar violations can not be regarded as a discriminatory law. Similarly, the differences in remissions for inmates who have seen a case by case according to events of the crime committed and the condition of prisoners who apply themselves.
Instead, it is a concrete manifestation of the principle of equality before the law to achieve keadilan.Keadilan are treated equally to the same thing, and treated differently to things that are
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