The explanation on Article 43 paragraph (2) Act No. 26 Year 2000 on Human Rights Trial, so long as it is related to the word ”suspicion” violated the 1945 Constitution. That was the stipulation of the Constitutional Court in the verdict announcement for case No. 18/PUU-V/2007, Thursday (21/2), at the Plenary Court Room of the Constitutional Court.

Eurico Guterres, the Petitioner, who had also been on trial through the Human Rights Trial ad hoc filed the pleading to put on trial Article 43 paragraph (2) Act on Human Rights Trial which stated, "Human Rights Trial ad hoc as mentioned in paragraph (1) was form on the initiative of the Indonesian House of Representatives based on certain event under President’s Stipulation " alongside with the Explanation of Article 43 paragraph (2) of the Act on Human Rights Trial which stated, "In the condition that the Indonesian House of Representatives initiates the forming of Human Rights ad hoc, the House of Representatives based on the suspicion that there has been a violation on major human rights which is limited on certain locus and tempus delicti occurred before the legalisation of this Act ".

The Constitutional Court on the legal consideration stated that the Petitioner basically did not question the existence of the Human Rights Trial ad hoc, but questioned the forming process that is by the initiative of the House of Representatives to the President which then settled it by President’s Stipulation (Keppres) which had caused some loss on the Petitioner’s constitutional rights to attained assurance in law certainty and justice. Because of that, the pleading of the Petitioner concerning Article 43 paragraph (2) of the Act on Human Rights Trial along with the related reasons should not be reconsidered by the Constitutional Court.

Regarding the substance of the Explanation of Article 43 paragraph (2) of the Act pm Human Rights Trial, the Constitutional Court considered that to decide the necessity to form the Human Rights Trial ad hoc on a certain case based on the locus and tempus delicti indeed needed the involvement of political institution that reflected the people’s representation, which was the House of Representatives. However, the Parliament when recommending the forming of the Human Rights Trial ad hoc needed to pay attention to the investigation results from the authorised institution.

Because of that, the House of Representatives could not just easily suspect without having the investigation result first from authorised institutions that were the Human Rights National Commission as the investigator and the Supreme Attorney as regulated by the Act No. 26 Year 2000. It should be understood that the word “suspicion” in the Explanation of the Article 43 paragraph (2) Act on Human Rights Trial had the potential to cause a law uncertainty (rechtsonzekerheid) as the result of the possibility for different interpretation with that mechanism.

Because of that, according the Constitutional Court, the Explanation of Article 43 paragraph (2) of The Act on Human Rights Trial so long as it concerned the word “suspicion” violated the constitution and therefore did not have a binding legal power. On the verdict, a Constitution Justice I Dewa Gede Palguna had a dissenting opinion.

As the follow up of the Constitutional Court stipulation, Guterres legal cousel, M. Mahendradatta, after the court said that he would immediately filed a Review for the Stipulation of the Supreme Court No. 06 K/Pid.HAM AD HOC/2005 that sentenced ten years imprisonment on Guterres. The Verdict was similar to the verdict from the Subdistrict Court of Central Jakarta No. 04/Pid.Ham/ad.hoc/2002/PH.JKT.PST. (Luthfi Widagdo Eddyono / Yogi Djatnika)