Regulation regarding preliminary evidence under Law No. 8 of 1981 on Law of Criminal Procedure violates human rights as stated under Provision of Article 9 (1) of UN Covenant, Civil and Political Rights. This notion was expressed by Natalius Pigai as an expert submitted by Tapanuli Tengah Mayor, Raja Bonaran Situmeang during Judicial Review of KUHAP against Constitution on Wednedsay (7/1) in MK Plenary Room

 “The procedure on criminal trial in context of human rights, is firmly regulated, regarding suspect right, through Provision under Article 9 (1) on UN Covenant Rights, Civil and Political Rights stating everyone has the right to liberty and security of person, no one shall be subjected to arbitrary arrest or detention, no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”, Natalis stated before Deputy Chairman, Arief Hidayat-led court.

Natalis explained it has been stated under UN Covenant that investigator and prosecutor obliged to gather evidence in a way that it was not against the law and only evidence obtained legally according to law could be used to prove suspects guilt.  It was also part of the effort of human rights protection, especially toward suspects and defendants during the process of gathering evidence to not be forced, tortured, reversed, and to not admit guilty as regulated under Article 14 (3) of UN Covenant on Civil and Political Rights. Afterward, the announcement of charge alleged or reason for detention based on evidence became part of human right fulfillment to obtain information in which guaranteed under Article 14 (1) of Law No 39 of 1999 on Human Rights stating that everyone has the right to communicate and obtain information they need to develop themselves an individual, Article 942 as stated before.

 “In light of this, according to human rights’ law and other references, we, I encourage the Court to assert or produce norms by repealing Provisions under Article 14 (1), 17, and Article 21 of KUHAP, especially regarding preliminary evidence phrase since it does not provide certainty and have potential toward human rights violation during its implementation,” he explained.

On his application, Bonaran seek to review constitutionality of Article 14 (1), Article 17, and Article 21 (1) of KUHAP. Applicant deemed his constitutional rights has been violated by the multi-interpreted regulations and the law has potential to create legal uncertainty since there was not clear definition regarding “sufficient preliminary evidence” and “sufficient evidence”. According to the applicant, investigators action to determine individual status as a suspect without evidence was considered as arbitrary action which violates constitutional rights of citizens. Moreover, Applicant assess that actually violation has occurred to the applicant when Corruption Eradicating Committee (KPK) stipulated applicant as a suspect and put detention without showing preliminary or sufficient evidence. According to these postulates, applicant asked the Court to declare provisions being reviewed as not legally binding as far as it does not interpreted as “sufficient preliminary evidence and sufficient evidence to declare suspect and detention”. Applicant also asked the Court to declare that the provisions were conditionally constitutional and to interpret that to declare preliminary evidence and sufficient evidence in obvious measure and it has to be given and/or presented before the suspect or defendant. (Lulu Anjarsari/ky)