Resensi – Diskursus seputar ketertinggalan KUHP dalam memenuhi kebutuhan hukum masyarakat sejatinya telah lama menjadi perbincangan di kalangan akademis maupun praktisi hukum. Pasalnya, pesatnya perkembangan teknologi, komunikasi, transportasi, dan hubungan masyarakat sedikit banyak telah memunculkan pola kejahatan baru dengan modus operandi baru.
Diantaranya, seperti perekaman pembicaraan tanpa izin, penyadapan telpon, delik komputer, dan cyber sampai pada delik lingkungan hidup belum sepenuhnya terakomodir secara baik dalam KUHP. Bahkan lebih dari itu, ancaman pidana yang berupa denda pun sudah terlalu dimakan inflasi.
Mengikuti perkembangan dalam beberapa negara maju, pidana denda sejatinya telah menjadi primadona dalam pemidanaan. Berbeda halnya dengan Indonesia yang masih mengandalkan pidana penjara yang dalam perkembangannya dipandang tidak memberikan efek jera serta tidak mendidik pelaku untuk menjadi lebih berguna dalam masyarakat.
Begitupun pidana penjara singkat (enam bulan ke bawah) sudah sangat usang dan tidak efektif. Meminjam istilah yang digunakan oleh Andi Hamzah; pidana demikian Too short for rehabilitation and too long for corruption (terlalu singkat untuk perbaikan dan terlalu lama untuk pembusukan).
Dalam hal ini, sungguh cukup beralasan untuk mengatakan bahwa para pembentuk undang-undang (DPR bersama pemerintah) telah lalai dalam melakukan reformasi sistem hukum pidana Indonesia. Sekalipun semangat pembaharuan oleh para ahli hukum, akademisi hukum, LSM terus digelorakan dari waktu ke waktu, dan tertuang dalam RUU KUHP, akan tetapi nyatanya sampai ini masih belum terlihat kejelasannya.
Hingga sampai sekarang pun KUHP kita itu tidak mengalami perubahan. Akibatnya menjamurlah undang-undang di luar KHUP, sebagai akibatnya perundang-undangan seringkali mengalami kerancuan, overlapping, disharmonisasi, dan saling bertentangan satu sama lain.
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Judul : Delik-Delik Tertentu dalam KUHP Penulis : Andi Hamzah Penerbit : Sinar Grafika Cetakan : Agustus 2015 Tebal : xvii + 293 Halaman ISBN : 978-979-007-618-1 |
Sekelumit permasalahan itu ditangkap secara baik oleh Andi Hamzah, dan dituangkan dalam bukunya yang berjudul; “Delik-Delik Tertentu di dalam KUHP”. Dalam buku ini, Andi Hamzah melihat begitu banyak nilai-nilai dalam kehidupan masyarakat telah mengalami perkembangan, sehingga dalam penerapan hukum pidana tidak boleh didasarkan pada bunyi undang-undang semata.
Ketertinggalan KUHP bisa saja diantisipasi dengan keberadaan jaksa dan hakim yang jujur. Mereka bisa menggunakan interpretasi futuristik dalam memahami kondisi sosiologis masyarakat Indonesia. Oleh karena itu, tindak pidana bisa saja diselesaikan menurut nilai-nilai masyarakat setempat. Dengan begitu, hukum pidan sebagai ultimum remedium bisa benar-benar terealisasikan.
Ke depan sanksi yang bersifatnya ringan harus diganti dengan denda, pengawasan, kerja social. Hal itu bagian dari memodernisasi KUHP kita. Sayang, banyak pihak masih belum menyadari pentingnya memoderasi KHUP yang lebih modern. Kita masih disibukkan oleh perdebatan yang tidak produktif. DPR dan pemerintah masih sibuk dengan urusan pemekaran daerah demi jabatan politik untuk mendapatkan jabatan penting.
Sangat ironis bila kita mengaca pada negara lain, yang setiap tahunnya melakukan revisi KUHP demi mengejar ketertinggalan dari kemajuan teknologi. Hal ini harus menjadi evaluasi bersama pemerintah dan DPR, sehingga KHUP bisa diadaptasikan dengan zaman, kerena perkembangan teknologi itu tidak bisa dihindari sebagai bagian dari globalisasi sehingga juga berimbas pada perkembangan hukum.
Hukum administrasi banyak yang memuat sanksi pidana ancaman pidana berat, serta diakumulasi dengan pidana ancaman denda bahkan dengan sanksi paling ringan. Ketentuan seperti ini telah menyimpang dengan hukum pidana global. Bahwa keberadaan hukum administrasi bukan maksud untuk menghukum orang, melainkan mengawal bahwa kebijakana administrasi harus ditaati orang. Idealnya, pencamtuman sanksi berat harus tercantum dalam perundang-undangan pidana terutama dalam KUHP. Sifatnya yang temporer dicatumkan dalam perundangan-undangan di luar KUHP.
Dalam buku ini juga memuat semua rumusan delik diusahakan dirinci bagian inti deliknya (delictselementen) sehingga memudahkan pembaca untuk memahami unsur-unsur delik utama dan bukan delik inti .
Salah satu contohnya adalah Pasal 211 KHUP yang berbunyi “barangsiapa dengan kekerasan atau ancaman dengan kekerasan memaksa seorang pengawai negeri untuk melakukan perbuatan atau untuk tidak melakukan perbuatan jabatan yang sah, diancam dengan pidana penjara paling lama 4 (empat) tahun”
Rumusan pasal 211 KUHP tersebut terbagi ke dalam unsur-unsur sebagai berikut; (a) Subjek (normadressaat); barang siapa, (b) Bagian dari inti delik (delictsbestanddelen), yaitu; unsur memaksa, dengan kekerasan atau ancaman kekerasan, yang dipaksa adalah pegawai negeri, (d) Dengan tujuan; melakukan perbuatan, atau tidak melakukan perbuatan yang sah.
Jika bagian inti delik yang tercantum dalam dakwaan tidak terbukti, maka putusan pengadilan akan berupa bebas (vrijspraak). Begitupun jika dapat dibuktikan oleh terdakwa dan penasehat hukumnya bahwa tidak ada unsur melawan hukum (ada dasar pembenar), maka terhadap terdakwa harus diputus lepas dari segala tuntutan hukum.
Buku ini sangat direkomendasikan pada mahasiswa hukum, praktisi hukum khusus yang advokat, jaksa, hakim, sebagai buku panduan untuk membantu dalam menyelesaikan perkara-perkara, karena buku ini memberikan rumusan-rumusan dan penafsiran yang rinci.
Selamat Membaca…!
226 Komentar
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