Pelajar Pelaku Anarkis Harus Diadili Sesuai UU Sistem Peradilan Pidana Anak

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Dalam aksi unjuk rasa menolak Omnibus Law Undang-Undang Cipta Kerja pada tanggal 8 Oktober 2020, ribuan para pelajar ikut turun ke jalan dan terlibat aksi anarkis. Sebagai konsekuensinya, ratusan pelajar ditangkap aparat kepolisian dan sebagian dari mereka ditetapkan menjadi tersangka.

Kadiv Humas Mabes Polri, Irjen Argo Yuwono pada Selasa (20/10) di Polda Metro Jaya mengungkapkan tiga pemuda yang berstatus pelajar, yaitu berinisial MLAI (16), WH (16), dan SN (17) diancam hukuman pidana maksimal 10 tahun penjara. Ketiganya dijerat dengan Pasal 28 ayat 2 jo Pasal 45 a ayat 2 Undang-Undang Nomor 19 Tahun 2016 tentang Informasi dan Transaksi Elektronik (ITE). Selain itu, polisi juga mengenakan Pasal 14 dan Pasal 15 Undang-Undang Nomor 1 Tahun 1946 tentang Peraturan Hukum Pidana dan Pasal 207 KUHP kepada para pelajar tersebut.

Bagaimana pendapat pakar hukum pidana terkait pasal-pasal yang dikenakan penyidik kepolisian untuk menjerat para pelajar yang menjadi tersangka dalam aksi unjuk rasa menolak Omnibus Law Undang-Undang Cipta Kerja tersebut? Wartawan jurnal-investigasi.com, Anastasia Rita Sinaga, mewawancarai Dosen Hukum Pidana Fakultas Hukum Universitas Sebelas Maret, Dian Esti Pratiwi, S.H, M.H., M.Kn untuk mengulasnya.


Apakah pasal-pasal pidana dengan ancaman maksimal 10 tahun penjara yang dikenakan aparat kepolisian terhadap para pelajar yang telah ditetapkan sebagai tersangka dalam demonstrasi anarkis menolak Omnibus Law UU Cipta Kerja sudah tepat atau bagaimana? 

Sebelum kita masuk ke situ, saya mau menyikapi dulu karena saya ini juga sebagai orangtua untuk mahasiswa-mahasiswa saya. Di sini yang kita pelajari adalah kapan kita mau menggunakan Undang-Undang Sistem Peradilan Anak. Mereka kan di bawah 18 tahun. Jadi anak-anak itu, kalau saya mau mengkritisi, kita melihatnya dari umur mereka. Adapun mahasiswa pasti sudah di atas 17 tahun semua. Memang saya kurang setuju adanya pelibatan atau keikutsertaan pelajar dalam demonstrasi seperti itu, kurang pantas.

Namun dalam konteks dia menyampaikan pendapat, dia ikut andil memberikan suatu kontribusi kepada negaranya lewat penyampaian pendapat, itu kan dilindungi Undang-Undang HAM. Kemarin itu sempat viral di beberapa daerah, banyak pelajar yang ditangkap polisi dan bahkan ada yang mendapatkan tindakan dalam tanda kutip tindakan represif oleh bebarapa oknum polisi. Nah, itu kan sebenarnya sebuah fenomena.

Kita mau  lihat dari sudut pandang para pelajar itu. Mungkin dia,  kalau kita mau menanyakan satu per satu, pasti dia tidak tahu substansi undang-undang itu. Dari sisi tindakan polisi sendiri, tidak dibenarkan seorang aparat penegak hukum, dalam hal ini polisi, melakukan tindakan represif. Sebagai contoh yang di Surabaya,  ada anak SD yang sempat diamankan. Saya lihat di berita, ada Bu Risma (Wali Kota Surabaya) juga.

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Bagaimana bisa seorang anak SD ikut-ikutan demonstrasi seperti itu? Pertama, pasti ada yang ngajak. Kedua, bagaimana pengawasan orangtua? Padahal aksi itu terjadi di jam-jam belajar sekolah secara online. Adanya tindakan atau keadaan di mana si anak ini atau si pelajar ini bisa melakukan keadaan seperti itu, dia ada di situ, perlu dipahami dan dipelajari dulu. Hal pertama, saya mengkritisi. Saya tidak setuju dengan tindakan represif aparat penegak hukum. Jadi kalau si pelajar ini diamankan saja, dipanggilkan orangtuanya atau pihak sekolahnya,  saya sangat setuju.

Tapi ketika dia ditahan, bahkan ada isu yang berkembang bahwa pelajar-pelajar yang telah diamankan oleh polisi kemudian akan kesulitan mendapatkan SKCK, saya kurang setuju. Kalau itu hanya sebuah gertakan, tidak masalah. Tapi kalau itu benar dilakukan, ya tidak boleh dong. SKCK itu kan dikeluarkan ketika seseorang pernah ditahan, pernah melakukan kejahatan. Ukuran seseorang melakukan kejahatan adalah apa yang sudah dia langgar di dalam hukum positif atau apa yang sudah dia langgar di dalam undang-undang maupun KUHP.

Kan seperti itu ukuran seseorang melakukan kejahatan. Di sisi lain, si anak punya Undang-Undang Sistem Peradilan Pidana Anak, yaitu Undang-Undang 11 Tahun 2012, yaitu ada batasan usia ketika kita mau mengenakan sanksi untuk si anak. Saya tegaskan, Undang-Undang Sistem Peradilan Pidana Anak atau biasa disebut UU SPPA adalah undang-undang di luar KUHP. Atau bisa dikatakan khusus diatur mengenai tindak pidana atau pelanggaran yang telah dilakukan oleh seorang anak.

Batasannya adalah umur.  Umur 18 tahun maksimal dan minimal 12 tahun adalah batasan umur bagi seorang anak yang berkonflik atau anak yang melakukan tindak pidana kejahatan bisa dikenakan dengan UU SPPA ini. Nah, apakah bisa seorang anak atau pelajar yang ikut demonstrasi, kita ambil contoh seorang pelajar STM,  dikenakan undang-undang? Yang tadi ditanyakan adalah apakah pasal-pasal yang dikenakan yang oleh aparat kepolisian dengan ancaman maksimal 10 tahun penjara sudah tepat dilakukan?

Jawabnya belum tepat. Saya bisa katakan dan tegaskan, hal itu belum tepat karena oknum polisi maupun kepolisian itu menggunakan dan tidak mengacu pada Undang-Undang Sistem Peradilan Pidana Anak. Padahal kita punya undang-undang di luar KUHP yang mengatur itu sendiri. Kaitannya dengan apa? Ya ini, apa yang telah dilakukan oleh anak.


Tentang sistem peradilan anak yang tertuang dalam Undang-Undang No. 11 Tahun 2012, dalam hal pidana anak dikenal dengan istilah diversi, yaitu pengalihan penyelesaian perkara anak dari proses peradilan pidana ke proses di luar peradilan pidana. Bagaimana tanggapan Anda jika dikaitkan dengan para pelajar yang sekarang menjadi tersangka?

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Ada istilah diversi, yaitu yang harusnya dilakukan terlebih dahulu oleh aparat kepolisian. Dia (anak) melakukan tindak pidana, wajib dikomunikasikan terlebih dahulu dengan orangtuanya. Maksudnya apa? Kita tahu bahwa marwahnya anak adalah ketika dia masih di bawah umur dan dia masih harus dalam pengawasan orangtua. Makanya kita mengenal di dalam Undang-Undang Sistem Peradilan Pidana Anak itu ada istilah diversi, yaitu harus ada komunikasi terlebih dahulu.

Komunikasinya antara siapa? Antara orangtua anak dengan anak, mungkin bisa didatangkan juga dari pihak ahli psikologi, kemudian dari pihak penyidik. Tujuan adanya diversi itu supaya anak ini jangan sampai ikut-ikutan bukan karena niatnya, tapi karena dia hanya ikut-ikutan saja. Supaya nanti dia tidak trauma ke depannya. Jadi adanya mediasi komunikasi orangtua dengan anak, orangtua dengan pihak polisi, lebih ke situ arahnya.


Untuk peradilan pidana dengan tersangka anak, dalam proses tersebut tentu ada pemberkasan yang dilakukan oleh aparat kepolisian hingga berkas perkara para pelajar tersebut P-21 atau dinyatakan lengkap dan siap untuk disidangkan. Bagaimana proses persidangan terhadap para terdakwa yang masih berstatus anak tersebut?

Nah, kalau sudah P-21, tinggal bagaimana caranya. Ketika kita menjelaskan tentang proses diversi, artinya proses diversi itu mempunyai batasan. Kapan  diversi itu bisa dilakukan dan kapan tidak. Diversi itu bisa dilakukan ketika seorang anak yang melakukan kejahatan ataupun tindak pidana dengan ancaman hukuman di bawah 7 tahun. Adapun penahanan terhadap anak hanya dilakukan jika anak itu sudah berumur 14 tahun sampai 18 tahun.

Kita ambil satu contoh seorang pelajar STM, misalkan umurnya 16 tahun. Berarti ketika ditangkap, kemudian ditahan, kepolisian membuat berkasnya karena dia terbukti melakukan vandalism, perusakan, dan kemudian dia terbukti melakukan tindakan anarkis. Dia akan dikenakan pasal itu. Tetapi, saat bersamaan, si penyidik kurang memahami bahwa si anak ini harusnya dikenakan Undang-Undang Sistem Peradilan Anak. Sebaliknya, si penyidik justru memberikan dia hukumannya itu atau bisa dikatakan penyidik mendakwakan pasalnya tidak menggunakan sistem peradilan anak.

Sehingga, ketika sudah P-21 dan dilimpahkan ke kejaksaan, jaksa akan meneliti. Jika tidak lengkap, mungkin menyalahi, harusnya penyidik menggunakan Undang-Undang Sistem Peradilan Pidana Anak. Berkasnya pasti akan dikembalikan jaksa untuk dilengkapi untuk pengenaan pasalnya agar bisa disesuaikan dengan Undang-Undang Sistem Peradilan Pidana Anak


Mengenai proses persidangan si anak, apakah ada perbedaan persidangan terhadap terdakwa yang masih berstatus anak dengan terdakwa yang sudah dewasa atau berusia 18 tahun?

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Ada, sangat ada. Bahkan, itu yang menjadi hal terpenting dalam proses  persidangan atau proses peradilan anak. Proses persidangan perkara anak itu harus tertutup. Biasa kita tahu kalau dalam persidangan umum, hakim akan menjelaskan di awal, apakah sidang merupakan sidang terbuka untuk umum atau tidak. Nah, kalau persidangan anak harus tertutup. Hanya orang-orang tertentu yang mempunyai kepentingan yang ada di dalam ruang sidang.

Ketika kita membahas hal itu, akarnya ada di dalam Kitab Hukum Undang-Undang Acara yang menjelaskan sidang itu harus terbuka. Namun, dalam penjelasan Undang-Undang tentang Perlindungan Anak Tahun 2002, dijelaskan bahwa seorang anak yang dihadapkan dengan hukum, proses persidangannya harus secara tertutup. Hal itu ada di Pasal 54 Undang-Undang Sistem Peradilan Pidana Anak. Pada pasal tersebut dijelaskan bahwa hakim dalam memeriksa perkara anak harus tertutup sidangnya.

Kecuali ada pengecualiannya, yaitu ketika adanya pembacaan putusan. Tapi dalam pemeriksaan harus tertutup untuk umum. Memang pemeriksaan perkara anak bisa menetapkan bahwa sidang itu terbuka untuk umum. Namun ada syaratnya, yang pertama ada kasus-kasus tertentu seperti pelanggaran lalu lintas, kemudian bisa dilihat juga dari keadaan perkara tanpa mengurangi hak anak. Jadi hak anak tidak boleh diciderai.


Jika kita bandingkan penanganan pada kasus serupa di negara-negara maju seperti Amerika dan Eropa Barat,  apakah aparat penegak hukum di sana memberlakukan hal yang sama seperti di negara kita ini?

Sistem hukum itu kan ada istilah common law dan civil law. Kalau kita kan campuran. Jadi kalau ditanyakan ke saya perbedaan antara di negara-negara maju dan di negara kita, lebih bukan ke negara maju dan berkembang. Kalau dalam sistem civi law memakai sistem kodifikasi, yaitu dibukukan seperti KUHP. Ketika kita berbicara mengenai common law, berarti ada undang-undang lain di luar KUHP yang bisa menghukum seseorang.

Nah, ketika kita membahas tentang perkara anak ini, berarti kita kan sedang menggunakan sistem common law,  yang peraturan yang dibentuk sendiri khusus melindungi si anak tersebut. Kalau dalam sistem civi law, hakim tidak terikat dengan presiden atau doktrin. Sehingga bisa dikatakan di situ undang-undang menjadi rujukan utama. Mau tidak mau KUHP yang menjadi rujukannya. Jadi mau dia anak, mau dia orang dewasa pokoknya ada di dalam KUHP itu. Tetapi pada negara-negara seperti common law, contohnya kita ya, kalau sedang menggunakan undang-undang, memakai yurisprudensi. (J2)

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