---

Two legal experts were presented by Noes Soediono, Applicant for Supreme Court Judicial Review in the trial held on Thursday (9/25) at MK Plenary Room. Two experts from Indonesian Islam University, namely Muhammad Arief Setiawan and Nikmatul Huda, said that cassation limitation for pre-court verdict is opposing constitutional rights and sprung legal uncertainty.

Muhammad Arief Setiawan, who was the first to deliver his expertise, said that cassation less regulation for pre-court verdict is discriminative. Arief explained that pre-court institution took shape to oversee level-simple judicial-law enforcer actions in the preliminary investigation.  

Colonialism inheritance, KUHAP, failed to encompass any supervising mechanism. Thus, KUHAP founders altered some ideas through supervising board, provided by pre-court. Pre-court is clearly not a single body, but the extension of district court with limited authorities.   

Pre-court Inertia

From the ongoing research, Arief said that pre-court is non-competent to protect suspect’s and witnesses’ interests, to which trespassed by the investigators. The research also said that protection orientation bestowed by KUHAP tends to protect state-presented public interest. Regarding the philosophy of Indonesian crime court, which inherits harmony and balance impression to public protection, KUHAP must regulate and set powerful authorities into balances and pre-court is where the balancing situated.    

One of the pre-court inertia is limited access of legal effort as experienced by the Applicant. Whereas, Arief said, KUHAP gives legal attempt to the investigators and prosecutors who defeated in the pre-court in investigation dismissal. According to Arief this is discriminative.   

“Aside from investigators or prosecutors, the parties may be referred by the suspects. If they feel disappointed why don’t they gain same access to strive legal effort? This is discriminative, and for us, opposing Article 27 verse (1),  Article 28D verse (1), Article 28E verse (2) 1945 Constitution, because appeal access as given to prosecutors, barely as well applies to the Applicant,” Arief said,  

Discriminative requirements as contained in Article 83 verse (2) KUHAP has been annulled by MK. However, for Arief the problems don’t stop there, as bigger hurting implication applied instead. “According to the experts, the needs shall compromise legal effort, from the Plaintiff or defendant who is disappointed by the pre-court verdict,” Arief said.  

Justices’ integrities are still questioned in pre-court, so the appeal mechanism must be bear even in the lowest level, justice may not be found by single judgment. Therefore correction or appeal mechanism is needed even in the pre-court level.

Limitation Harms Constitution

Nikmatul Huda who also presented, said that judiciary aspects must free itself from any intervention of other powers. This is an implication of legal-based state as acknowledged in Indonesia. Therefore, Nikmatul said, the state must provide protection and guarantee to perpetuate human rights.

The limitation, which actually purposed to reduce Supreme Court-registered cases, apparently disregards the justice-seeker constitutional rights, as has been experienced by the Plaintiff. By the ruling, the Plaintiff stuck in the regulation’s spiral with no way out.    

Albeit legal effort must be tied on legal certainty and time limitation is not the answer as such ruling emits legal uncertainty instead. According to Nikmatul, rights-shackling regulations which hinder substantive justice-seeking attempt cannot be left unseen. (Yusti Nurul Agustin/kun)

 

---