---

Applicant’s Attorney Achmad Rifai delivers petition points at preliminary session on Act of the Criminal Code Procedure, on Wednesday (9/9) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) holds preliminary judicial review session on Act Number 8 Year 1981 of the Criminal Code Procedure (Undang-Undang Kitab Undang-Undang Hukum Acara Pidana –UU KUHAP) and Act Number 30 Year 2002 of the Corruption Eradication Commission (Undang-Undang Komisi Pemberantasan Korupsi –UU KPK), on Wednesday afternoon (9/9), at Plenary Room, the Constitutional Court Building. The Applicant is Rusli Sibua, Morotai Regent for terms 2012-2016 who officially named as suspect by the KPK (Komisi Pemberantasan Korupsi –KPK) in bribery case regarding the winning of 2011 Morotai Election dispute.

The Applicant files petition which registered in Case Number 102/PUU-XIII/2015. He reviews Article 50 (2) and (3), Article 82 (1) letter d, Article 137, Article 143 (1) the KUHAP as well as Article 52 (1) and (2) Act of the Corruption Eradication Commission. Representing by Applicant’s Attorney Ahmad Rifai, the Applicant says the Articles reviewed are tend to be abused and misinterpreted by law enforcers, particularly in bribery case which alleged to the Applicant.

According to the Applicant, he occur law abuse. Due to the suspect naming, the Applicant files pretrial request. However, the Applicant assumes the KPK has deliberate intention to abort his pretrial request. “They deliberately want to abort the pretrial, under reason that the case is already handed over. In fact, we file pretrial before Regent Rusli examined as suspect, even there is no examination at that time. Thus, we assess it (case devolution, ed.) violates the law, the KUHAP, and even the KPK standard operating procedure,” said Rifai

As known, South Jakarta District Court declares Applicant’s pretrial request annulled by law, in accordance with Article 82 (1) the KUHAP. In Court’s consideration, the Court assesses Applicant case has been preceded by Corruption Court (Pengadilan Tindak Pidana Korupsi –Pengadilan Tipikor).

The Applicant then explains his constitutional loss. He assesses the word ‘immediately’ (‘segera’) in Article 50 (2) the KUHAP tends to be misinterpreted by investigators or general prosecutors by expediting file submission process in first stage –case files and in second stage –case files, the suspect, and evidences. He reveals the KPK expedites his case process by submitting second stage files without conducting witness examination. However according to him, examination process is Applicant’s right as stipulated in Article 65 and Article 116 (1), (2), (3), and (4) the KUHAP. He further argues the provision supposed to be interpreted as ‘if there is no pretrial request’ (‘sepanjang belum ada permohonan praperadilan’)   

The Applicant argues Article 82 (1) letter d the KUHAP regarding the cause of pretrial request annulled, Article 137 the KUHAP regarding case files devolution to authorized court, Article 143 (1) the KUHAP regarding case files devolution from general prosecutor followed with request to immediate court proceeding, and Article 52 (1) and (2) Act of the Corruption Eradication Commission regarding 14 days period of case files transfer from general prosecutors to district court, shall be interpreted ‘if there is no pretrial request’ (‘sepanjang belum ada permohonan praperadilan’).    

Based on above arguments, the Applicant requests the Constitutional Court to declare the Articles reviewed contrary to the 1945 Constitution if it doesn’t interpreted ‘before the pretrial’ (‘sebelum adanya gugatan praperadilan’). In petition demands (petitum), the Applicant requests the phrase ‘immediately proceeded in Court’ (‘segera dimajukan ke Pengadilan’) in Article 50 (2) and (3) the KUHAP contrary to the 1945 Constitution if it doesn’t interpreted ‘before the pretrial’ (‘sebelum adanya gugatan praperadilan’). 

Justice Input

Constitutional Justice I Dewa Gede Palguna as head of Justice Panel assesses the petitum obscure. Palguna advises the Applicant to clarify the petitum. “Please clarify your petitum intention. Our interpretation might be different if you state such obscure petitum,” said Palguna.

“Actually if we follow the intention of criminal code procedure throughout the world which use due process model, criminal cases are immediately submitted to court in order to provide protection. A proverb said ‘justice delay, justice deny’, which means delayed justice is denied justice,” said him.

Meanwhile, Constitutional Justice Aswanto advises the Applicant to shorten the petition, in order to ease the understanding. Aswanto also says the petition is still explain on matter of norm implementation. “There are many norm implementation matters in your petition. As known, the Constitutional Court doesn’t review norm implementation matter. The authority of the Constitutional Court is reviewing Act norms which consider contrary to the 1945 Constitution,” said Aswanto. (Nano Tresna Arfana/IR/Prasetyo Adi N)

---