The Constitutional Court conducted a trial for Act No. 16 Year 2004 on Indonesian Attorney (Act on Attorney) on Tuesday (12/02), in the Plenary Court Room. The trial was scheduled to hear the information from the Government, Experts from the Petitioner, Government and Related Party (Police Department) and to hear the information from a Related Party (the Attorney Office). 

The case No. 28/PUU-V/2007 was pleaded by Mrs. A. Nuraini and her husband, Major Gen. TNI (Ret.) Subarda Midjaja and their legal counsels were Ahmad Bay Lubis, S.H., A.H. Wakil Kamal, S.H., and Yanrino H.B. Sibuea, S.H. In the Petitum, the Petitioners felt some disadvantages by the imposition of Article 30 Paragraph (1) letter d Act on Attorney. According to the Petitioners, the function and the authority for investigation by the Indonesian Attorney which was regulated in the article was not common because it provided the Attorney Office a double authorities, to investigate and to press charges.

Article 30 Paragraph (1) letter d stated: “To conduct investigation on certain crime based on law”.

In the legal standing, Subarda explained that in 2004 he was examined as suspect and underwent an investigation process in the Indonesian Police Headquarter concerning the suspicion of financial embezzlement and fraud of PT. ASABRI. After that, The Police issued a warrant for investigation discontinuation (SP3) on the case. Yet since August 6, 2007 the Attorney Office invited, examined, and reinvestigate the Petitioner, Subarda as a suspect in a corruption case of misusing the fund of PT. ASABRI.

The Supreme Attorney as the investigator the put Subarda in custody and since November 8, 2007 was extended by the East Jakarta State Attorney as the Prosecutor. The Authority of the Attorney Office to investigate and to press charges were the things considered by Petitioners as too much and without control. The double authorities were considered to create confusion and law uncertainty.

Besides that, the Petitioners felt that because of the implementation of Article 30 the economic needs of their family were blocked because the husband was arrested by the Supreme Court. “Because of this, besides experiencing a psychological pressure, the action has caused some business that had been established with hard work by the Petitioners has fallen apart and unattended,” explained the Petitioners’ Legal Counsel at the previous trial.

In the Petitum read by the Legal Counsel, the Petitioners asked the Constitution Justice Board to grant the petitum and declare the Article 30 Paragraph (1) letter d Act of Attorney violated the 1945 Constitutionand then did not have a binding legal power.

Responding to that matter, in the trial, the Government represented by the deputy attorney for state administration (Jamdatun), Untung Uji Santoso, stated that the Constitutional Court actually did not have the authority to examine this case because the Attorney’s investigation on the Petitioners was conducted for corruption case after existence of the SP3 for the Petitioners for embezzlement. “Because of that, if the Petitioner want to settle the case it should be in the general trial, not in the Constitutional Court,” explained Untung.

The Petitum, added Untung, was also considered not focus because it did not explained clearly the contradiction between Article 30 Paragraph (1) letter d and the 1945 Constitution. “In fact, not only attorney, even the Corruption Eradication Committee (KPK), do not have any authorities concerning the examination of corruption cases,” he added.

The Attorney Office as a Related Party, Deputy Attorney for Intelligence (Jamintel), Wisnu Subroto, explained that the authorities to investigate a corruption case by the Attorney was an authority that did not violate the 1945 Constitution. In fact, according to Wisnu, the effort to eradicate corruption by various institutions was an effort for checks and balances, that if there was an institution which was not optimal in carrying out the program, then it could be backed up by other institutions. “In Indonesia, besides the Attorney, there is KPK that can conduct the investigation and the authorities have never been argued,” explained Wisnu.

Meanwhile, the Expert from the Petitioner’s side, Marojahan Jalfiner Saud Panjaitan, said that so far the lawmakers da not implemented the legal knowledge well that instructed law certainty in the formulation of the law. “The word “certain” in the Article in fact creates multi-interpretation. It should be stated clearly whether it means corruption or economic cases,” explained Lecturer of Legal Study.

Adding the information from Marojahan, Expert from the Petitioner’s side, Prof. J. E. Sahetapy, explained that in the concept of Integrated Criminal Justice System (ICJS), The Police was the sole investigator and the Attorney was the sole prosecutor. “There is nothing else in this republic,” stated Sahetapy strongly.

Different from the two Experts from the Petitioner, Prof. Andi Hamzah as Expert from the Government explained that in other countries, the Attorney also had the authority to investigate. Not less than that, Prof. Andi Hamzah described the concept of authority in Russia, Germany, France, Thailand, China, and Georgia.

Adding the information from Andi Hamzah, Government’s Expert from the Department of Foreign Affairs, Arif Havas Oegroseno, explained that if the uncertainty arose on who had the authority to do the investigation, then it would cause a political impact for Indonesian foreign politic. Firstly, it would cause a confusion to foreign partners on who would they contact related to the investigation. Secondly, bilaterally, in the negotiation with Singapore, China, Hong Kong, even the USA, there would be the same impact that was who they would team up with in term of investigation.

Meanwhile, Expert from the Government, Indriyanto Seno Adji, explained that the Attorney could directly do the investigation or appoint investigator outside the institution. In fact, based on history in the constitution of United Republic of Indonesia (RIS), that the Attorney could conduct the investigation had been arranged. Besides that, based on philosophical reason, there was actually a connection between ICJS and Trias Politica in constitutional law. The concept of separation of powers according to Indriyanto was closer to the concept of distribution of powers that contained the value of cooperation or helping each other between law enforcers. In this case, the Attorney could have the same authority to watch the implementation of joint investigation for certain cases. “This is what actually implemented in the laws being on trial (Act of Attorney, ed.),” explained Indriyanto.

From the Police as Related Party, Chief of Legal Division, Inspector Gen. Police. Arianto Sutadi, described that in practice, the people’s rights in accessing justice were mostly violated because the prosecution could not immediately carry out due to the correction process (P19) by the Attorney which had to be done more than once by the investigators from the Police. “There is a kind of internal rule in the Attorney saying that if the Attorney does not make any corrections, then the Attorney was not considered good. Therefore, they often returned the prosecution file added by made up reason for lacks,” said Arianto.

Meanwhile, Experts from the Related Party, former Chief of Indonesian Police, Prof. Awaloedin Djamin, and Legal Practitioner, O.C. Kaligis, pointed out that in the Penal Procedural Code (KUHAP), there were only two investigators, the Police and State Employee with technical ability in the field. “The one roof authority of the Attorney has the potential for the authority misuse because the Attorney can make the correction for and in the name of them,” explained Kaligis.

As the result of the trial, the Head of the Constitution Justice Board, Prof. Dr. Jimly Asshiddiqie, S.H. gave a week for each party to submit their conclusion, before bringing the conclusion by the Justice Board to the Justice Deliberation Meeting. The agenda for the next meeting was stipulation readout. (Wiwik Budi Wasito/Yogi Djatnika)