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Leadership of the Indonesian Mujahidin Council and a co-founder of the Islamic boarding school al-Mu’min, the village of Ngruki, Central Java, Abu Bakar Ba'ashir (Applicant), the petition can not be accepted by the Constitutional Court (MK). It thus came to light when the Constitutional Court on Wednesday (11/4), the decision No. 16/PUU-IX/2011 states "The applicant argument for most of ne bis in idem, while the rest is not unreasonable under the law," said Mahfud MD, as the chairperson.

Ba'ashir, through his legal counsel, in this case testing this Article 21, paragraph (1), and the explanation of Article 95 paragraph (1) of Act 8/1981 on Criminal Proceedings (Criminal Code). According to  Ba'ashir , is contrary to Article 28D paragraph (1) of the 1945 Constitution.

Details of the provisions of Article 21 paragraph (1) the Act states, "The detention order made or continued detention of a suspect or a defendant’s alleged criminal offense based on sufficient evidence, in terms of the circumstances that give rise to fears that the suspect or the accused will flee, destroying or removing evidence or repeat the offense."

According to the Court, the article has already been decided upon in the petition No. 018/PUU-IV/2006, dated December 20, 2006 and application No.. 41/PUU-VIII/2010, dated March 10, 2011. No. In the ruling 018, the Court argued, Article 21 paragraph (1) does not conflict with the 1945 Constitution, so the request is rejected. As for Petitioner 41, the Court did not find any loss suffered by the applicant because of the norms of the articles petitioned for review.

Because norms are tested together, and the article is used as the test of Article 28D paragraphs (1) of the 1945 Constitution, the Court argued, the petition for the article is ne bis in idem. "So that the legal reasoning and injunction in case Number 018/PUU-IV/2006, dated December 20, 2006, mutatis mutandis apply to the petition a quo," said Court.

 

Denied

Therefore, the Court only considers Article 95 paragraph (1) and an explanation of Article 28D paragraph (1) of the 1945 Constitution. Provisions of that Article is, "The suspect, accused or convicted person entitled to sue for damages because of arrested, detained, charged and prosecuted or subjected to other action, without any reason under any law or by mistake of the person or the applicable law."

While the explanation of Article 95 paragraph (1) ie, "Losses due to wear any other action" is the revenue loss caused by the home, search and seizure are unlawful, including detention without reason that the detention is longer than sanctions."

The decree,  Ba'ashir  argued with the enactment of Article 95 paragraph (1) Criminal Procedure Code and its explanation has limited the right of the Applicant to seek redress for actions considered by the applicant as an act of excessive (excessive) conducted by the police / investigators at the time of the arrest and detention. But the action, according to the Court, it should not happen. "But it is a concrete action that is not a matter of norms under the authority of the Court," wrote the Court.

The real problems faced by the applicant, continued the Court, not the problems of constitutionality of the norms in Article 95 paragraph (1) Criminal Procedure Code and its explanation that results in legal uncertainty, but the application of legal norms which are set ways of solution.

On the other hand, is associated with the practice that has occurred in the application of the Criminal Code, namely Article 95 paragraph (1) and the explanation is considered less protect the rights of the suspect or the accused, the Court is under the domain of application of the law and not a matter of the constitutionality of the norm.

Based on all the above legal considerations, the Court, Article 95 paragraph (1) Criminal Procedure Code and its explanation is not contradictory to Article 28D paragraph (1) of the 1945 Constitution, so that the petition is groundless law."Rejecting the petition for the addition and the rest," wrote the Court’s decision in the injunction. (Shohibul Umam / mh/Yazid.tr)

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