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The Applicant’s Attorney alternately stated petition arguments at judicial review session on Act of Criminal Code Procedures (Kitab Undang-Undang Hukum Acara Pidana) on Monday (23/3) at Plenary Room, the Constitutional Court Building (Gedung MK). Photo PR/Ganie

 

Central executive board of the Indonesian Prosperous Labor Union (Dewan Pengurus Pusat Serikat Buruh Sejahtera Indonesia –DPP SBSI) represented by Muchtar Pakpahan as chairman filed a judicial review on pretrial scope of authority provisions in Criminal Code Procedures (Kitab Undang-Undang Hukum Acara Pidana –KUHAP). First hearing of the case registered on No. 35/PUU-XIII/2015 was held on Monday (23/3) at Plenary Room, the Constitutional Court Building (Gedung MK). Eci Tuasikal as Applicant’s Attorney stated the petition main points that in essence asking the Constitutional Court (Mahkamah Konstitusi –MK) to declare Article 77 KUHAP legitimate according to the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945)   

At the hearing led by Constitutional Judge Suhartoyo, Eci Tuasikal stated that the Applicant filed judicial review towards pretrial scope of authority provisions as stipulated on Article 77 KUHAP. Article a quo states the district court (Pengadilan Negeri –PN) is authorized to examine and decide on validity of arrests, detentions, investigation termination or prosecution termination. On point b of the article a quo is also stated the district court is authorized to examine and decide on compensations and or rehabilitations for a suspect whose criminal case terminated at investigation or prosecution level.

Eci Tuasikal as Applicant’s Attorney at the hearing revealed the petition background which was Comr. Gen. Budi Gunawan’s case whose filed pretrial against the Corruption Eradication Commision (Komisi Pemberantasan Korupsi –KPK) at South Jakarta district court (Pengadilan Negeri Jakarta Selatan –PN Jaksel) after named as suspect. The Applicant concerned because PN Jaksel had received Budi Gunawan’s pretrial registration. Even later, PN Jaksel had granted that suspect determination on Budi Gunawan was invalid with several reasons.

One of the reasons that was used by PN Jaksel for granted Budi Gunawan‘s petition was suspect determination process was a part of the investigation. PN Jaksel also had stated the process of investigation led to the arrest and detention was also a part of pretrial. Still quoting PN Jaksel’s opinion, Eci Tuasikal said that while on Article 77, Article 82 (1), Article 95 (1) and 95 (2) KUHAP and Article 1 the number 10 KUHAP did not mention suspect determination included as pretrial object, but PN Jaksel argued it did not mean if it was not mentioned then considered not as pretrial authority. Citing Act of Judiciary (Undang-Undang Kehakiman), the judge overseeing the case said that Judge had the authority to hear a case that does not exist in the rules to give interpretations that can be accounted for.

According to the Applicant, since Article 77 KUHAP is an act, so the content of it is only could change by acts above it. So, the reason of PN Jaksel, particularly the judge who overseeing this case is cannot be justified. “Changes or additions towards Article 77 KUHAP are cannot be conducted by PN Jaksel through Verdict Number 04/PIT/Pra/2015/PN Jakarta Selatan (Verdict on Budi Gunawan pretrial case, red). PN Jaksel obligation is to obey the law,” justified Eci Tuasikal.

Whereas PN Jaksel indirectly set suspect determination includes on pretrial object, the Applicant considered that PN Jaksel by its verdict had damaged legal order. Therefore on his petitum, the Applicant asked to the Constitutional Court to declare Article 77 KUHAP valid in accordance with UUD 1945. Moreover, the Applicant asked the Court to declare all regulations and or verdicts that not suitable with Article 77 KUHAP, such as adding or subtracting the act a qou, are invalid and not binding.

Judges Advice

Responding the Applicant’s petition, Patrialis Akbar as judge panel member asked the Applicant to reaffirm the petition form, whether review norm constitutionality of Article 77 KUHAP or review norm implementation. “One of the Constitutional Court’s authorities is conducting judicial review on Act towards the 1945 Constitution. Matters considered contrary to the Constitution is what we review, whether it discriminative or harm the citizen rights towards the acts. So it is not on implementation matter, the Court has no authority to assess judicial process done by others judicial institutions,” said Patrialis firmly.

Similar statement was also said by Constitutional Judge Aswanto. He declared constitutional loss suffered by the Applicant had not seen yet in petition argumentation. Moreover, the Court cannot examine the conflict between Article 77 KUHAP filed by the Applicant with PN Jaksel pretrial verdict. "So between the acts with the verdict is clearly not the scope of the Court\\'s authority. You need to work hard to re-elaborate so the Court can be sure that things you reviewed are constitutional issues," Aswanto advised. (Yusti Nurul Agustin/Prasetyo Adi N.) 

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