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The Constitutional Court (MK) decided cassation decision may also be made for free. It is stated in the decision of the Constitutional Court No. 114/PUU-X/2012 which was read by Chief Justice of the Constitutional Court, Moh. Mahfud MD on Thursday (28/3).

"To grant the petition for most states the phrase," unless the acquittal "under Article 244 of Act 8 of 1981 on Criminal Proceedings against the Constitution of the Republic of Indonesia Year 1945," said Mahfud accompanied by eight other constitutional judges .

In the opinion of the Court was read by Deputy Chief Justice of the Constitutional Court Achmad Sodiki, the Court Article 67 of the Criminal Procedure Code to determine if an exception to appeal against the decision of the first level examination were declared free. Then, despite all lawsuits related to the problems from the inappropriate application of the law and the court proceeding, the Code of Criminal Procedure Article 244 petition was for examination to exclude an appeal against acquittal.

"Both of these provisions did not provide regular legal remedy against the acquittal, which means that the function of the Supreme Court as a court of appeal against the acquittal handed down by the courts below it totally eliminated," he said.

Sodiki explained without intending to undertake an assessment of the decisions of the Supreme Court (MA), the reality so far has shown few acquittals handed down by the courts under the Supreme Court, an appeal is not filed. However, continued Sodiki, filed an appeal and the Supreme Court on trial, but in accordance with Article 244 of the Criminal Procedure Code acquittal don’ts cassation. That resulted in legal uncertainty in practice because of the contradictions in the implementation section.

"On the one hand, the article prohibits cassation, but on the other hand, in practice the Supreme Court to accept and adjudicate an appeal against the acquittal handed down by lower courts. Therefore, in order to ensure legal certainty of fair and equal treatment before the law, the Court must determine the constitutionality of Section 244 Criminal Procedure Code in particular the phrase "except for acquittal," he said.

Court considered the law enforcement and justice, also contained the true meaning that it should be declared right, and wrong, it should be stated incorrectly. In that case, the acquittal handed down by the courts under the Supreme Court and then filed an appeal inspection, should not be taken to mean that the Supreme Court declared the defendants guilty and surely punished. Sodiki could resume MA agrees with the court beneath it, meaning that defendants were acquitted in the decision. Under these circumstances, the function of the Supreme Court as the highest state court held fixed, and law and justice must be established.

"Based on all the foregoing considerations, the Court reasoned legal petition in part. The arguments of the petition for the addition and the remainder, according to the Court, legally unreasonable," said Sodiki.

Different Opinions

Opinions differ precisely expressed by Harjono against the decision petition filed by retired civil servant, Idrus. According to Harjono, an exclusion appeal against acquittal as provided by Section 244 Criminal Procedure Code is the protection of human rights of those whose rights have been violated because the defendant status, following a court ruling is legitimate. With the removal of the phrase "unless the acquittal" Section 244 Criminal Procedure Code, then tore down the system fundamentally Criminal Procedure Code, the implications of which will spay many other KUHAP’s chapters, but removal is no constitutional basis.

"Practice is not a reference to declare a law contrary to the Constitution and actually testing laws are often intended to correct the prevailing practice in accordance with the constitution, therefore, not uncommon to the Constitutional Court decided conditionally (conditionally constitutional) to correct improper practices and not vice versa," he said.

Unacceptable

In the plenary session, the Constitutional Court declared the petition filed by STAIN Chairman Sjech M. Djamil Djambek Bukittinggi Ismail unacceptable. "To declare the petition cannot be accepted," said Mahfud read Decision Number 115/PUU-X/2012.

In the opinion of the Court was read by Muhammad Alim, a quo, whether the phrase "unless the acquittal" in the Code of Criminal Procedure Article 244 petitioned constitutionality, basic testing, and the petition filed by the Petitioner, exactly the same petition No. 114/PUU- X/2012 were decided by the Court on March 28, 2013, at 11:40 pm.

Alim went all the consideration and decision of the ruling of the Court Number 114/PUU-X/2012, dated March 28, 2013 mutatis mutandis into consideration and also the decision of this petition. "Pursuant to Article 60 paragraph (1) of the Constitutional Court, said Alim, the petition a quo should be declared ne bis in idem," he said. (Lulu Anjarsari / mh)

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