Amicus Curiae: Position and Role in Issuing Decisions by Judges as an Effort to Achieve Substantive Justice

In practice of criminal justice system, a judge plays a fundamental role in making decision that will be imposed on the defendant. The Law on Judicial Power requires judges to widely disclose information and opinions from various groups and public participation. Amicus curiae concept is a mechanism that permits third parties who believe they are interested in a particular criminal case. However, the existence of amicus curiae in positive law has not been regulated explicitly or formally to explain how it is applied in criminal justice. While the judge plays a part in delivering a verdict on the defendant


Introduction
The court is a vital of the mechanism within the criminal justice system that is carried out to finding the truth in a criminal case.The central position of criminal justice system contained in the judiciary is due to the authority of the judge who will give birth to a decision in punishment will have broad consequences that have a direct connection to the perpetrators of criminal acts as well as the interests of society at large.Judges have independence (freedom) in every legal case submitted in court so that judges cannot reject cases that come to them even though the law is unclear or does not exist.
Judicial power is an independent state power to administer justice to uphold law and justice based on Pancasila and the 1945 Constitution. 1 Judicial power can be exercised freely without supervision because, in the aspect of court proceedings, there are general principles of proper justice and procedural rules or procedural law that open up the possibility of filing legal remedies.
In efforts to carry out their duties, judges possess the authority to review and make determination in disputes or cases through giving decisions to justice seekers with the hope that the decision contains legal certainty, expediency, and justice.According to Sudikno Mertokusumo,2 the three elements in the decision are proportionally legal certainty, expediency, and justice.However, in practice, decisions rarely contain three elements proportionally, so at least the three factors should be present in the decision.It is not uncommon for legal certainty to conflict with justice.If the law is as it reads, it must be carried out (legal certainty), but if it is carried out in certain circumstances, it will be perceived as unfair (lex dura sed tamen scripta means that the law is cruel, but that is how it reads).If, in making decision, the judge chooses the form of a verdict and when a conflict arises between legal certainty, justice and expediency, then justice should be given priority.
In the context of the administration of judicial power, supervisory efforts carried out internally and externally are broadly defined as one of the activities of the management function to find, assess, and correct deviations that occur or have occurred based on agreed standards in the applicable laws and regulations.Thus, supervision will provide added value in realizing a sense of justice. 3The progression of the criminal procedure law and the judges authority in carrying out justice cannot be separated from community supervision regarding social issues that are seen as isolated occurrences where the condition of the judicial institution is responsible for providing decisions to perpetrators of criminal acts is part of the response of the judicial institution or judge.Not infrequently, what happens in giving decisions on cases that are tried is faced with the community's situation in assessing the cases handled indicates a continued need for realization of the notion of justice.
The recent years, the Indonesian judiciary has recognized the term amicus curiae, which is submitted by persons or collectives of people who intend to offer input as an impartial observer provide input that do not act as a party to the case but have a concern or interest in a legal case. 4In contrast to efforts to intervene in the trial process by related parties, amicus curiae do not act as parties to the case.However, they are only limited to providing their legal opinions to the court as opinions and not as opposition between litigants or having legal problems.Although in practice, the position of amicus curiae has not been expressly regulated in Indonesian positive law, the consequence of the democracy adopted by the Indonesian state is the reason that every community participates in law enforcement, which can be manifested in amicus curiae (friends of court means friends of the court).
The absence of clear rules enforcing amicus curiae has been assumed by some parties who view that amicus curiae is used in the criminal justice system based on Article 5 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power, which reads "Judges and constitutional judges shall explore, follow and understand the values of law and a sense of justice that lives in society."According to some parties, this requires judges to open the broadest possible information and opinions from various groups, both those who are parties to the case as well as through input from parties outside the case, such as inviting experts, inviting parties who are considered to understand the issues being examined.The inputs submitted can assist the judge in considering a fair and wise decision. 5icus curiae can provide opportunities for individuals and organizations interested in sharing data and legal facts regarding issues handled by the judiciary.Amicus curiae is helpful to make a case more transparent when the public is aware of the case that the judge will decide.In practice, amicus curiae can be given in written form (letter) and submitted orally in court.The strategy used in amicus curiae is to present evidence of legal facts that can be sourced not from the court but from variety of sources that might not be recognized or inaccessible within the legal context.The position of an amicus curiae is not to intervene in the case before the judge but rather to share opinions relating to the legal facts and legal issues involved to help clarify factual matters, provide insight into ongoing legal concern, and serve as a representative for particular entities. 6e practice of amicus curiae in Indonesia has been carried out in several cases submitted by individuals and community groups, among others: Pemantau Peradilan Indonesia) Faculty of Law Universitas Indonesia submitted a blasphemy case stipulated in Article 156 of the Criminal Code on behalf of the defendant, Meliana, at the Medan District Court.Apart of these instances regarding amicus curiae practice, a case that has attracted widespread public attention in recent months was the premeditated murder of suspects Ferdy Sambo, Ricky Rizal, Kuat Maruf, Richard Eliezer and Putri Candrawati, while the victim was Joshua Hutabarat.One of the suspects is Richard Eliezer Pudihang Lumiu, the perpetrator because he was forced to carry out his shooting with a forced order by Ferdy Sambo.
In obtaining the truth in a legal event, a systematic process of activities is needed using appropriate and rational means and measures.The evidentiary mechanism in criminal procedure law is an effort to obtain information through evidence and evidence in order to obtain a belief in the truth or absence of criminal acts charged and to determine the presence or absence of guilt in the defendant. 8Evidence contained in criminal procedure law is expected to get the truth, which within juridical limits is not an absolute truth that is difficult to obtain.

Method
The research undertaken falls within the category of normative legal research (juridical-normative), then to address the legal questions raised in the study, it employs a statutory approach and a conceptual approach.Utilizing the statutory approach allows for a comprehensive review of all laws and regulations regarding to the rule of amicus curiae in the criminal justice process.Meanwhile, the conceptual approach relies on expert views/thoughts and doctrines in the field of law in explaining concepts that do not have conceptual definitions in the legislation. 9In discussing and answering legal problems, this research uses legal materials in the form of primary legal materials including the Criminal Procedure Code and Law Number 48 of 2009 concerning Judicial Power.Secondary legal materials used in this research include literature/reference books, journals, articles and results of previous research related to this research.10Furthermore, the legal materials are processed and analysed qualitatively through legal reasoning and argumentation techniques that produce descriptive research with explanatory descriptions.

The Function Amicus Curiae in Indonesian Criminal Justice
Talk of amicus curiae is a term that is unfamiliar to the general public.The understanding of amicus curiae or friends of the court is a legal concept that allows third parties, namely those who feel they are interested in a legal case, to provide input or legal opinions to the court.However, the involvement of interested parties in a case The early history of amicus curiae dates back to Roman Law in the ninth century, where the practice of amicus curiae has been frequently used by nation that abide the Common Law legal system. 11The use of amicus curiae is often done at the appellate court level or in cases of great importance to the general public 12 The development of amicus curiae also occurred in the US in the early 20th century with a role in civil rights cases, even more than 90 percent of the cases that entered the Supreme Court.The concept of amicus curiae can act in the interest of, among others: a) For person's interests or group's interests that present the possibility affected by the decision of the case, regardless of the interests of the parties, so that the court does not decide only based on the reasons put forward by the parties; b) To support one party's case and enhance its arguments, in order to court has the confidence to "favor" in parties or granting their application; c) In the public interest, in this case, the friend of the court states on behalf of the concern of the broader community that will be affected by the decision. 13 Indonesian courts, the existence of amicus curiae is not expressly regulated in the Criminal Procedure Code (KUHAP) in terms of evidence as stipulated in Article 184 of the KUHAP, including witness testimony, expert testimony, letters, instructions, and testimony of the defendant.The concept of amicus curiae is new evidence that judges can consider but needs a formal standard form that is not regulated through existing laws and regulations.A judge can use amicus curiae as a consideration before deciding a case based on the provisions of Article 5 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power, that Judges and Constitutional Judges are obliged to explore, follow, and understand the values of law and a sense of justice that live in society.The understanding of the article provides an effort by judges as a breakthrough in obtaining knowledge in the form of clues from information obtained from other parties or the public in conveying facts and legal opinions regarding exceptional cases that have gained widespread public attention.In terms of the strength of evidence using amicus curiae, it can be referred to the confidence of the examining judge in assessing the content and relevance of the amicus curiae application to the case itself.
The public or other parties referred to in the amicus curiae application have explicitly been given a limitation of understanding as stated in Article 14 paragraph (4) of Constitutional Court Regulation Number 06/PMK/2005, that indirectly interested parties include parties whose position, primary duties and functions need to be heard.Furthermore, parties are those whose need to be heard as ad memorandum are entities whose rights and authorities are not impactful directly by the application yet because of their deep concern for the application in question. 14cently, social and humanitarian organizations have filed many amicus curiae applications to defend and explain a legal fact in a particular criminal case.The role of amicus curiae may be a strategic alternative to using one type of evidence over another.In proving a criminal case, the amicus curiae application must explain the substance of the case chronology, disclosure of facts in the field studied from a philosophical, sociological, and juridical perspective, and the reasons for the perpetrators to commit crimes by describing the elements of the imposition of articles and the legal basis for the application of legal penalties for the perpetrators of criminal offenses.Several references regarding cases where a judge uses amicus curiae in imposing a decision are needed to assist the judge in compiling considerations before a criminal decision is delivered against the defendant in court. 15e position of amicus curiae as knowledge in providing essential information for judges must be accountable because of its quality, which contains facts and legal opinions, so several things need to be considered in compiling amicus curiae, among others: 16 a) The friend of the court must serve the court in finding justice; he does not act as a "friend" for one of the litigants or is not part of the litigants and has no conflict of interest.The primary purpose is to find justice, so certain people or groups must consider and pay attention to scientific competence and knowledge as well as their integrity so as not to be trapped in the "interest" of the litigants; b) The friend of the court has a distinct role between providing additional information and supporting the arguments put forward by a litigant.In this regard, the friend of the court cannot raise issues that the litigants themselves have not raised, as that is the job of the litigants and their lawyers; c) Whether the amici(s) participate independently, with the permission or invitation of the court, the friend of the court has limited capacity to act legally, as the applicant (amicis) cannot file pleadings, exceptions, or other evidence.
When referring to regulations relating to Judicial Power, a judge must be able to broadly open up knowledge in considering the decision to be handed down.
Other information showing the realization of justice can be received through input from litigants and outside parties, such as information from experts or research results that discuss issues handled by judges.Thus, amicus curiae, as an effort to convey related information, can help produce a fair decision with wise and prudent consideration.
Following main headings should be provided in the manuscript while preparing.The separation between main headings, sub-headings and sub-sub headings should be numbered in the manuscript with following example:

Application of Amicus Curiae in Realising Substantive Justice in Indonesian Criminal Justice
The principle of a democratic rule of law requires that every decision taken must consider efforts to ensure community participation.These efforts aim to ensure that every state decision contains and has the values of justice that live in the community as the expectations desired by the entire community.In judicial practice, a judge has the freedom to adjust the case he handles; this refers to the principle of "Judicial power, which means that the power is independent".17 Judicial power is a principle that means judges are not allowed to influence from outside the court so that judges can apply a mechanism of proof based on laws that function negatively (negatief wetterlijk), that the judge has the discretion to abstain from sentencing someone unless supported by a minimum two credible piece with at least two valid evidence he obtains a conviction that a criminal offense happened and that the defendant is guilty of committing it. 18n other words; it means an effort to obtain information derived from evidence and evidence to obtain a conviction of the case that has been handled and submitted to him.
Amicus Curiae has a role for judges to assist in providing considerations regarding whether or not a legal event is a crime. 19Through amicus curiae, Through amicus curiae, in principle, it can be used by law enforcement officials in carrying out the criminal justice system, starting from the investigation stage to proof in court, such as testimony from an expert who provides specialized knowledge derived from theoretical research of a criminal act committed by the perpetrator.In practice, amicus curiae can also be utilized in the stages of legal remedies such as appeals, cassations, and judicial review.
In Indonesian positive law, it is known to have provided a legal basis for the application of amicus curiae, which can be seen in Article 180 paragraph (1) of Law Number 8 of 1981 concerning Criminal Procedure Law (KUHAP), which reads: " If it is necessary to clarify the issues arising in court, the presiding judge may request expert testimony and request that the interested party submit new material.".20 The wording of the article above is that the provisions in Article 180 paragraph (1) do not mention directly and explicitly in interpreting giving limitation recognition to the involvement or participation of the community.According to the author, the phrase "may also request that new material be submitted by those concerned" can be intended as a meaning that leads to the concept of amicus curiae.However, it cannot be formally institutionalized in the criminal justice system.The interpretation that can be known from this provision is that amicus curiae is only a means of community to take part in a case and is used as a means of community monitoring in ongoing law enforcement.Thus, judges sometimes receive amicus curiae as a form of community participation.
An amicus curiae application can be submitted by a person, group, or organization as a third party so that it is not a party directly involved in the case.However, its presence is a form of concern and interest in realizing justice as expected by the community (substantive justice).The information described through amicus curiae does not have to be submitted by lawyers but by people who know (academics) related to legal events, especially cases handled by law enforcement, with the intention that there is valuable information for the trial process. 21The form of amicus curiae testimony can be submitted in writing or orally at the trial, so that files submitted in written form containing such information are usually referred to as amicus briefs.
The material contained in amicus curiae is a brief statement explaining an opinion or discussion on a particular point, which can also be expressed through various forms, such as exposure to facts or scientific legal opinions, such as papers, articles, etc., but must be academically accountable. 22The existence of amicus curiae provided for academics is essential based on the following reasons: a) To participate in realizing a democratic rule of law; b) Maintain the rule of law process and encourage judges to keep their knowledge up to date; c) Maintain his/her academic freedom by exploring his/her knowledge and opinions as widely as possible, without interest and attachment to the litigant; d) Efficiency, as one does not need to make a particular time to come to court. 23 the case of 2023, the application for amicus curiae by organizations called the Institute for Criminal Justice Reform (IJCR) and ELSAM was related to a murder case committed by a police officer named Bharada Richard Eliezer.24 In the case, Richard Eliezer's role as the perpetrator of the shooting was based on the shooting order given by his superior, Ferdi Sambo, in this case the reason for submitting amicus curiae was due to the consideration that Richard Eliezer volunteered himself as a justice collaborator in helping to reveal the murder case.
The charges filed by the public prosecutor against the defendant were 12 years in prison.Furthermore, the South Jakarta District Court judge with Number 798/Pid.B/2022/PN Jkt.Sel, in the verdict, has imposed a prison sentence of 1 (one) year, 6 (six) months, or 1.5 years.
The charges filed by the prosecutor with the verdict imposed by the judge are very far from the difference in time.The consideration for the judge in imposing a lower sentence was that the defendant volunteered as a cooperative witness (justice collaborator).According to the author, judges are responsible for imposing sentences in realizing substantive justice by considering and accommodating amicus curiae submitted by civil society organizations and academics so that it becomes a progressive step.
Although the explicit regulation of amicus curiae has not been formally regulated and standardized, in terms of judges realizing substantive justice for justice seekers can use the principle that judges are required to investigate adhere to, comprehend the legal principles and societal sense of justice. 25In theory, the understanding of amicus curiae according to John Gray states that not only the judge requests parties, but the parties have a voluntary role to actively participate in every stage of the trial in assisting the court based on expertise and experience relevant to the problem (legal issue) that is the center of attention for the panel of judges. 26 in the Richard Eliezer case above, the view on the role of amicus curiae has a function for the panel of judges in terms of requiring an independent view outside of the litigants, namely the Public Prosecutor and the defendant, because it is one of the considerations outlined in the amicus curiae.Although there is no clear and firm legal basis for formal legal certainty, the judge has seen substantive justice in upholding the law through justice.Judicial practice should reflect justice, certainty, and expediency that are implemented proportionally and balanced.Therefore, the meaning of substantive justice from the decision-making means that the judge can ignore the wording of the article in the law if it does not provide a sense of justice but is still guided by the formal procedural based on the law which has the function of legal certainty.

Conclusion
The role of amicus curiae in criminal justice in Indonesia in favorable legal products has not been explicitly recognized through formal legality.However, legal interpretation can be the basis for judges to explore, follow, and understand the values of law and the sense of justice that live in society as mandated by The application of amicus curiae in realizing substantive justice can be seen from the central role of a judge in handing down a decision due to the judicial process submitted by a justice seeker.The provisions regarding amicus curiae should be explained in a more standardized and formalized manner in favorable regulations.However, the judge's decision should ideally reflect the values of justice, certainty, and expediency in a proportional manner, where the judge has freedom as an affirmation of judicial power by prioritizing the value of justice as a legal goal aspired by society.
7 a) In 2017, the Institute for Criminal Justice Reform (ICJR) submitted a case on the criminal offense of insult and defamation under Article 27 paragraph (3) of the Law on Electronic Information and Transactions examined by the Makassar District Court on behalf of the defendant Yusniar; b) In 2018, the Institute for Criminal Justice Reform (ICJR) and the Institute for Community Studies and Advocacy (ELSAM) presented a case of crimes against state security that was heard at the Banyuwangi District Court on behalf of the defendant Heri Budiawan; c) In 2018, the Indonesian Judicial Monitoring Society (MaPPI, Masyarakat Article 5 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power.Meanwhile, Article 180 paragraph (1) of Law Number 8 of 1981 concerning the Criminal Procedure Code determines the existence of public participation by submitting new materials requested by the presiding judge to clarify cases arising in the trial.Thus, the position of amicus curiae can only utilized as new material but not as evidence such as witness or expert testimony.