(Left-Right) Maqdir Ismail and Dasril Affandi as Applicant’s Attorney shook hands after listening to judicial verdict on Act of Criminal Procedures (Undang-Undang Kitab Hukum Cara Pidana –KUHAP), on Tuesday (28/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie  

The Constitutional Court partially granted the judicial review petition on Act Number 8 Year 1981 of Criminal Code (Undang-Undang Kitab Hukum Cara Pidana –KUHAP) which filed by a convict of fictitious bioremediation corruption case of PT. Chevron Pasific Indonesia Abdul Fatah

“Adjudicates, declares grant the Applicant petition partially,” said Chief Justice Arief Hidayat declared the judicial verdict accompanied by other seven Constitutional Justices on Tuesday (28/4) at Plenary Room, the Constitutional Court Building. The verdict asserted pretrial provision as stipulated on Article 77 letter a KUHAP was contrary to the Constitution to the extent it didn’t interpret included the suspect naming, shakedown, and seizure.

Article 77 letter a KUHAP noted:

"A district court shall be competent to examine and decide, in accordance with the provisions set forth in this act concerning: a. the legality or illegality of an arrest, detention, termination of investigation or termination of prosecution;"

("Pengadilan negeri berwenang untuk memeriksa dan memutus, sesuai dengan ketentuan yang diatur dalam undang-undang ini tentang: a. sah atau tidaknya penangkapan, penahanan, penghentian penyidikan atau penghentian penuntutan;")

According to the Court, KUHAP had no check and balance system towards suspect naming by investigators because lack of review mechanism towards the legality of evidence acquisition. “Indonesia Criminal Procedures have yet to fully implement the principle of due process of law, because the action of law enforcers in searching and finding evidences cannot be reviewed its validity,” said Constitutional Justice Anwar Usman when read the Legal Consideration. 

The core of pretrial institution, according to the Court, was a form of supervision and objection mechanism towards law enforcement process which related to the human rights protection. However, pretrial institution wasn’t able to answer the problems occurred in the pre-adjudication process. “The function of supervision in pretrial institution is only post facto and the review is merely formal which emphasize objective elements, while the subjective elements aren’t supervised by the court,” added him.

Pretrial submission concerned on suspect-naming was limitedly constrained by the provision of Article 1 number 10 juncto Article 77 letter a KUHAP. Whereas, suspect-naming was a part of investigation process in which arbitrary actions done by investigators regarded as human rights violation. “Court assessed, the inclusion of supect naming validity as pretrial object is intended to give equal dignity and position for a suspect before the law,” Anwar affirmed.

Two Evidences

Moreover on the verdict number 21/PUU-XII/2014, the Court stated the phrase ‘initial evidence’, ‘sufficient initial evidence’ which stipulated on Article 1 number 14, Article 17, Article 21 (1) KUHAP should be interpreted as ‘at least two evidences’ as noted on Article 184 KUHAP.

The provision on KUHAP didn’t give explanation on amount limit from the phrase ‘initial evidence’, ‘sufficient initial evidence’, and ‘sufficient evidence’. The only article which determined minimal amount of evidence was Article 183 KUHAP which stated “A judge shall not impose a penalty upon a person except when with at least two evidences… etc”.

Therefore, interpretation of ‘at least two evidences’ assessed by the Court as the implementation of due process of law principle to protect human rights during criminal proceedings. As a formal law in the criminal proceedings in Indonesia, several phrases in KUHAP required explanation in order to be fulfilled its lex certa and lex stricta principles for protect suspect against arbitrary action done by investigators.

“Thus, an investigator in determining ‘initial evidence’, ‘sufficient initial evidence’, and ‘sufficient evidence’ as stipulated on Article 1 number 14, Article 17, and Article 21 (1) KUHAP, arbitrary action can be avoided,” affirmed Constitutional Justice Wahiduddin Adams.

Dissenting Opinion

Three Constitutional Justices –I Dewa Gede Palguna, Aswanto, and Muhammad Alim– stated dissenting opinions towards the verdict. According to Palguna, the Court supposed to reject the Applicant’s petition related to suspect-naming which exclude in pretrial scope due to it didn’t contrary to the Constitution. Referred to International Covenant on Civil and Political Rights (ICCPR), Palguna assessed the suspect-naming which didn’t include in pretrial scope wasn’t an internationally wrongful act that could be used as a basis for demand state responsibility.

Constitutional Justice Muhammad Alim assessed, when investigators abused their authority, subjectively named a person as suspect with no evidence for example, it wasn’t the Constitutional Court’s authority. It was a matter of legal implementation. Assessment of legal implementation is other judicial institutions authority, rather than the Constiutional Court authority.

Meanwhile Constitutional Justice Aswanto argued suspect-naming which didn’t include in pretrial scope was the authority of legislators. The provision which didn’t include in pretrial scope wasn’t cause Article 77 letter a contrary to the Constitution.

Previously, Bachtiar filed judicial review related to the provision of investigation, detention process, and proceedings in KUHAP. The Applicant –represented by Applicant’s Attorney Maqdir Ismail– reviewed Article 1 number 2, Article 1 number 14, Article 17, Article 21 (1), Article 77 letter a, Article 156 (2) KUHAP. The Articles a quo were considered had applied to the Applicant who named as suspect in the criminalization process; arrest and detention. Meanwhile Article 77 letter a Act a quo was applied to the Applicant in pretrial case.    

“The casualties between the Applicant‘s constitutional loss with the enactment of articles in KUHAP reviewed in the petition is obvious. The enactment of article reviewed in the petition had caused disadvantages to the Applicant’s constitutional rights regarding the recognition, security, equal legal certainty and constitutional right towards due process of law as stipulated on Article 28 (1) and Article 1 (3) the 1945 Constitution,” said Maqdir (Lulu Hanifah/Prasetyo Adi N.)