Legal Counsel of Abu Bakar Baâasyir, Hm Mahendradatta in the review of Act No. 8 of 1981 on Book of Criminal Codes (KUHAP), Tuesday (29/3) at the Plenary Courtroom of the Constitutional Court.
Jakarta, MKOnline - Abu Bakar Ba’asyir filed a judicial review case on Act No. 8 of 1981 on Book of Criminal Codes (KUHAP) to the Constitutional Court (The Court) and the case was given the number 16/PUU-IX/2011 by the Registrar Office.
Abu Bakar Ba’asyir through his counsel HM Mahendradatta had made their revision according to the advices from the Panel Board of Justices chaired by Hamdan Zoelva. Previously used five articles of the 1945 Constitution as the touchstones. However, continued Mahendradatta, based on the advice from the justices, the Petitioners only highlighted on one article, Article 28D paragraph (1).
“We have also studied the decision of The Court No. 018/PUU-VI/2006 and agreed to the considerations within. The Court considered that the Petitioners’ detainment by the investigators or prosecutors had to be based on rational considerations and not merely based on a mere subjective intention from the investigators or prosecutors,” he explained.
Mahendradatta explained that the Petitioners understood that The Court’s opinion had been contained in the substance of Article 21 paragraph (1). Still, continued Mahendradatta, the norm was totally inapplicable so that there had been congestion or a deadlock in the implementation.
“Therefore, a binding interpretation is needed. There is no problem in the norm of Article 21 paragraph (1), but the problems indeed lies on the interpretation of the article a quo; and that has become permanent, because it is leading to the same interpretation, which is absolute discretion by determining the requirement to be considered as an escape or destroying evidence. This is not an implementation problem but an interpretation one. There is an unconstitutional interpretation out there,” he pointed out.
In the petitum, Mahendradatta explained that the Petitioners demanded that the Board of Constitutional Justices to provide a constitutional interpretation on the article a quo. “More than just a consideration so that it will be legally binding. This is to make Article 21 paragraph (1) in accordance with Article 28D paragraph (1),” he stated.
The Petitioners in the main substance of the petition claimed that Article 21 paragraph (1) which stated “An order of detainment or further detainment is imposed on a suspect or a convict who is strongly suspected of committing crime based on sufficient evidence. In the event of situation which causes worries that the suspect or convict will try to escape, destroy or remove the evidence and/or repeat offenses” is contradictory to the 1945 Constitution. The Petitioners demanded the phrase “strongly suspected to commit crimes” to be annulled.
The Petitioners’ reason was due to the arrest of Abu Bakar Ba’asyir by Special Detachment 88 while riding on a car and a forced arrest by the police. The Petitioners felt that the Police were only based the arrest on suspicion of criminal act committed by the Petitioners.
The explanation of Article 95 paragraph (1) was also put under review. The norm stated “What it means by ‘loss because of other actions’ is a loss that is caused by home entrance, rummage and illegal foreclosure according to the law. It includes an arrest without reason is an arrest longer that the imposed sanction.”
With that explanation, the Petitioners argued that they could not filed charges for compensation claim based on the stipulation of Article 95 paragraph (1) stating “A suspect, defendant or convict deserves a right to sue a claim for compensation for the arrest, detainment, press charges against and adjudge or other action imposed on without reasons based on the law or because of a mistake concerning the person or the law enacted.” (Lulu Anjarsari/mh/YDJ)
Tuesday, March 29, 2011 | 17:58 WIB 161