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Emeritus Justice Laica Marzuki said that Act 9/1981 over Code of Criminal Procedures (KUHAP) contains uncertain and ambiguous articles, encompassing legal uncertainty. It would probably also impose unjust decision.

In the Judicial Review trial, Laica cited Article 1 number 14 KUHAP and Article 1 number 17 KUHAP and Article 1 number 17 KUHAP impose legal uncertainty due to their blurry parameter.   

Article 1 number 14 KUHAP says:

“Suspect is the one whose act or wrongdoings, based on preliminary evidences, deserves to be accused as the criminal”

While, Article 1 number 17 KUHAP says:  

“Arrestment order applied after someone presumably committed crime based on sufficient preliminary evidences”

Phrases “Preliminary evidence” and “sufficient preliminary evidences” in those two Articles are less in parameter and totally rely on investigator. “Investigator, him/herself, will decide how an evidence is considered sufficient. This may lead to procedure-less investigation due to the process of law,” he said at MK Plenary room, Jakarta, Monday (8/25).  

Moreover, Article 21 verse (1) KUHAP gives a space for subjective authority to the officer, whether they can decide suspects may escape, destroy evidences, or to commit another crime. The regulation is guideless due to its wide scope, without giving any particular parameter.

Neglecting Suspect’s Rights

Professor of Criminal law from Gadjah Mada University, Edward Hiariej said that prejudicial authority as contained in Article 77 KUHAP is actually controlling instrument over arbitrary action from forced arrestment attempt. Unfortunately, prejudicial instrument fails to control entire kind of forced arrestment attempt, thus it opposes process of law basic principles.  

He explained, prejudicial concept basically is a process of protecting Human rights in accordance to forced arrestment attempt possibilities. Throughout prejudicial, procedure of law enforcement will be ruling to avoid forced arrestment.

“It must be admitted that our KUHAP tends to reflect on crime control model, prioritizing quantity yet neglecting suspect’s rights, to which guaranteed in Universal declaration of Human Rights,”   

Besides, phrase “..in contrast in refusal or Judge’s opinion to say that such things can only be decided after the hearing completed, therefore the trial will be continued,” in Article 156 verse (2) KUHAP, is seen to impose unjust for those whose appeal was filed over filed legal attempt.  

Furthermore, if the Judge decides to proceed case procedures, including witnesses investigation and apparently circuit court grant the appeal, hearing process would be inefficient. “This is clear defying efficient judicial process, of which is one of principle in handling legal trial,” he retained. (Lulu Hanifah/kun)

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