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Constitutional Court (Mahkamah Konstitusi –MK) was held first session of judicial review on Act Number 8 Year 1981 of Criminal Code (Hukum Acara Pidana) on Thursday afternoon (9/4) at Plenary Room, the Constitutional Court Building. Case registered on number 41/PUU-XIII/2015 was filed by an advocate Muhammad Zainal Arifin. At the session, Applicant’s Attorneys –Heru Setiawan, Novi Kristianingsih, and Rosantika Permatasari Putri– said would examine pretrial provisions as stipulated on Article 1 number 10, Article 77, Article 78, Article 82, Article 95, and Article 96 Act a quo.

According to Heru, the Applicant felt detrimental by the provision because pretrial definition and object was quite limited. Pretrial definition and object stipulated on Article 1 number 10 Act a quo states:

Pretrial is District Court’s authority to examine and decide in the manner stipulated on this Act, considering:

1. the validity of an arrest and or detention at the request of the suspect or suspects’ family or any other party within the suspects’ authority;
2. b.     the validity of an investigation termination or prosecution termination at the request of the suspect for the sake of law and justice;
3. c.     compensation demand or rehabilitation by the suspect or suspects’ family or any other party within their authority whose case is not brought to trial.

(Praperadilan adalah wewenang pengadilan negeri untuk memeriksa dan memutus menurut cara yang diatur dalam undang-undang ini, tentang:

1. a.     sah atau tidaknya suatu penangkapan dan atau penahanan atas permintaan tersangka atau keluarganya atau pihak lain atas kuasa tersangka;
2. b.     sah atau tidaknya penghentian penyidikan atau penghentian penuntutan atas permintaan demi tegaknya hukum dan keadilan;
3. c.     permintaan ganti kerugian atau rehabilitasi oleh tersangka atau keluarganya atau pihak lain atas kuasanya yang perkaranya tidak diajukan ke pengadilan.)

Heru argued the validity of shakedown, confiscation, abroad-escape prevention, and bank account blocking was needed to be included on pretrial object. According to him, the Applicant whose profession as advocate was potentially charged with forceful measures; shakedown, confiscation, abroad-escape prevention, and bank account blocking. It was potentially occurred because advocates could consider having relation with suspects or defendants. Then, the Applicant will not be able to file a legal action because of the definition and object of pretrial was still constrained.

“If pretrial object is still constrained as the norms a quo reviewed, then Applicant as a person cannot file pretrial against forceful measures,” explained Heru in front of judge panel led by Constitutional Judge Wahiduddin Adams. 

In addition, Novi Kristianingsih said that there were several reasons why the Applicant requested shakedown, confiscation, abroad-escape prevention, and bank account blocking to be included as pretrial object. According to her, forceful measures conducted by law enforcers were not only consisted arrest and detention. The measures were also can be in form of shakedown, confiscation, abroad-escape prevention, and bank account blocking which potentially violating the human rights.

“When forceful measures are conducted arbitrarily and violates prevailing legislation, it potentially violates the human rights,” said Novi as one of the Applicant’s Attorneys

Based on the arguments, the Applicant requested in order to the provisions reviewed declared contrary to the 1945 Constitution (Undang-Undang Dasar 1945), had no legal binding and unconstitutional to the extent pretrial definition wasn’t be interpreted as the District Court’s authority to examine and decide the validity of shakedown, confiscation, abroad-escape prevention, and bank account blocking at the request of aggrieved party was included.

Responding the petition, Constitutional Judge Anwar Usman reminded the Applicant to notice some of the MK verdicts and cases that still in proceed at the MK. Anwar then elaborated some verdicts and cases related with the Applicant petition. According to Anwar, the verdicts and cases were important for comparison.

“So, some cases either had decided or still in proceed are at least could be used as references. It could be compared, in addition there are advices from Judge Panel of course,” said Anwar.

Constitutional Judge Suhartoyo was also stated that there were some cases which had similar characteristic with the Applicant petition, related with confiscation and shakedown. Moreover, Suhartoyo asked that the Applicant could be more notice on legal standing, which previously said by the Applicant that legal standing as advocates had been accepted at the Court. 

“You shouldn’t then generalize. At least you examine first in the verdicts that you referred, which then used as standard in making revision,” said Suhartoyo.

Moreover, Constitutional Judge Wahiduddin Adams requested to the Applicant to not only compared his legal standing with other prevailing verdicts, but also sharpen his constitutional loss. Moreover, Wahiduddin was also requested to the Applicant to sharpen the norms contradiction between articles reviewed with the review basis.  

“This article reviewed and the review basis is not only simply attached. (It need to) Sharpen on how the norms contradiction between the articles reviewed with the review basis –or you call it as touchstones–. So it isn’t enough only by describing the text,” said Wahiduddin. (Triya IR/Prasetyo Adi N.)  

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