PERBEDAAN DASAR PERTIMBANGAN HAKIM DALAM MENJATUHKAN PUTUSAN TERHADAP ANGGOTA TNI PELAKU HUBUNGAN SEKSUAL SESAMA JENIS/HOMOSEKSUAL (Studi Putusan Nomor 115-K/PM.I-02/AD/III/2020 Jo Putusan Nomor 96-K/MIL/2020)
Keywords:Violation of Immoral Rules,, Homosexual Related,, Homosexual.
An action of Indonesian National Army (TNI) members who have the same- sex sexual (to commit homosexual relation act) will be somebody that damages the image of Indonesian National Army Forces. Also it can affect the other soldiers in the army platoon itself. That action against the norms, official reguation, religion teaching and decency. So the perperator is no longer considered to hold eligibility for be set in carrying out in function as Indonesian National Army member. Why for that action has been against provision in article, Chapter 103 verse (1) one KUHPM (Indonesian Military Law). The legal research method we use below is normative juridicial. By the research result which conducted in Military Court Decicion Study I-02 in Medan, Number 115-K/PM-102/AD/III/2020 which mention that defendant is not proven legally to commit a criminal act, The first : Disobidience for accidental, or The Second : Intentionally and blantantly to commit a voilate decency. To acquit the accused over all charges of Military prosecutors, then ordered that defendant should be returned to the officer submitting the law case. For nex, in order to resolved according to The Indonesian National Armed Forces/ TNI soldier’s Disiplinary Law. If we have paying atention of above decicion we may find a difference when we compare with The Indonesian Supreme Court Decicion Number 96K/MIL/2020 that states against the same defendant, who proven legally and convincingly, that he is guilty, to commit a crimilal act, “Disobeying Official Orderintentionally”, So Indonesian Supremme Court to punish the accused criminally,
with main criminal penalties, that he was dicharged from military service of Indonesia National Army (TNI AD). The ongoing difference between those two Judge’s Decicionabove is, because there has never been a related of Law article over the same-sex sexual/ Homosexual
intercourse which be done by them who are already both adult. There is a prohibition on same-sex sexual relation in Indonesian Natioanal Armed Forces (TNI) Community environment. That prohibitionis an Army Chief of Satff’s Telegram Letter, Number 1313/2009 August 4th 2009, Even tough there is no threat of criminal punishment in the same letter itself, included no sanctionfor the Indonesian National Army member who violated that ordered at the letter contents. The ongoing of differences regarding the consideration Judge’s basic at the Military Court in Medan Military Court I-02, if it compared to Spereme Court View regarding the Army Chief of Staff’s (KASAD) Telegram Number 1313/2004 August 4th 2009, as the form of official letter to defendant in connection with Law Article 103 vese (1) one KUHPM (Military Criminal Code Book of Indonesia) is the cause to make those differnce be occurs, in term of making decicion. The Republic Indonesia Law Number 48 on the Year 2009 about Judicial Power is guarantees those every Judge’s is free and independent in executing any decicion with no intervention from any party.