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Applicant Windu Wijaya represented by his Attorney Hazmin A. ST Muda delivered petition arguments at first session on Act of the Indonesian National Police, on Thursday (12/02) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

Director of the Advocacy and Law Enforcement Monitoring Center (Pusat Advokasi dan Pengawasan Penegakan Hukum –PAPPH) Windu Wijaya filed petition on the provision of Police Chief dismissal and Acting Police Chief (Pelaksana tugas –Plt) appointment by the President in urgency which stated in Act of the Indonesian National Police (Undang-Undang Kepolisian Negara Republik Indonesia –UU Polri). First session of case listed in number 24/PUU-XIII/2015 was held on Thursday (12/2) at Plenary Room, the Constitutional Court Building. Hazmin A Sutan Muda AS Applicant’s Attorney explained petition points in front of Justice Panel led by Deputy Chief Anwar Usman.

In the petition a quo, Wijaya who declared as Indonesian citizen felt harmed or potentially harmed with Article 11 (5) Act of the Indonesian National Police. The norm contained in the article a quo considered had caused multiple interpretations and contrary with the principle of recognition, guarantee, protection and fair legal certainty as mandated in Article 28D (1) the 1945 Constitution. The article a quo also feared could violated the law if it interpreted that the President as government head and state leader who authorized to appoint Acting Police Chief didn’t provide reasons of urgency and without House of Representatives’ (Dewan Perwakilan Rakyat –DPR) approval. Therefore, the President could conduct appointment of Police Chief as if in accordance with the law. For more detail, Article 11 (5) Act of the Indonesian National Police stated:

Article 11

 (5) In urgency, the Presiden may temporary dismiss the Police Chief and appoints Acting Police Chief and further requested the House of Representatives’ approval.

 ((5) Dalam keadaan mendesak, Presiden dapat memberhentikan sementara Kapolri dan mengangkat pelaksana tugas Kapolri dan selanjutnya dimintakan persetujuan Dewan Perwakilan Rakyat)

The provision was sued after the Applicant felt the appointment of Deputy Police Chief, Comr. Gen. Badrodin Haiti as Acting Police Chief which under reason on Article 11 (5) Act of the Indonesian National Police was ineligible. It because the appointment considered by the Applicant wasn’t in urgency and previous Police Chief didn’t temporary dismissed.

“The article had open opportunity for the President to appoint Acting Police Chief without the DPR’s approval under reason that the appointment of Acting Police Chief was honorably and permanently conducted. The norm of Article 11 (5) Act of the Indonesian National Police cause multiple interpretations and potentially caused unconstitutional interpretations. Therefore, Article 11 (5) Act Number 2 Year 2002 of the Indonesian National Police had cause legal uncertainty and contrary with the principle of law state and harm Applicant’s constitutional rights as stipulated in the 1945 Constitution,” said Hazmin when delivered petition points in front of Justice Panel.

Moreover, the Applicant argued each individuals should be obey to limitation regulated by law, in accordance with Article 28J (2) the 1945 Constitution. The limitation such as in Article 11 Act of the Indonesian National Police was solely to ensure recognition and respect on other individuals’ rights. Moreover if Article 11 (5) Act of Indonesian National Police misinterpreted which could lead to authority abuse committed by the President in appointing Acting Police Chief under reason of in urgency or without House of Representatives’ approval. Therefore, Applicant requested the President should able to manifest legal certainty and legal order in carrying out his tasks and authorities.

Interlocutory Injunction

The Applicant considered the Court needed to issue interlocutory injunction (putusan sela) for this case, which needed to prevent legal uncertainty for the Applicant who assessed Acting Police Chief appointment was invalid because it wasn’t in urgency. “Provision decision in Applicant’s case, judicial review on Article 11 (5) Act Number 2 Year 2002 of the Indonesian National Police is very urgent to avoid violation towards Applicant’s rights if the norm applied. In case a quo, interlocutory injunction is needed to avoid potential constitutional loss suffered by the Applicant due to invalid authority used by the President,” Hazmin explained.

Realizing legal void could occurred if the Court declared Article a quo contrary to the Constitution, the Applicant in the petitum requested the Court to give constitutional interpretation of Article a quo. The Applicant also said Article a quo should be interpreted the appointment of Acting Police Chief conducted by the President considered valid if previous Police Chief resigned, permanently absent, and or temporary dismissed by the President in urgency circumstances and with House of Representatives’ approval. (Yusti Nurul Agustin/Prasetyo Adi N)

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