---

Criminal law expert of Universitas Airlangga Nur Basuki Minarno delivers Applicant’s Expert testimony at judicial review session on the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana –KUHAP), on Wednesday (28/10) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

Quick justice principle as referred by the word ‘promptly’ as stated in Article 50 (2) and (3) Act Number 8 Year 1981 of the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana –KUHAP) has caused multiple interpretations, Criminal law expert of Universitas Airlangga Nur Basuki Minarno delivers the statement at judicial review session on the Criminal Procedure Code and on Act Number 30 Year 2002 of the Corruption Eradication Commission (Undang-Undang Komisi Pemberantasan Tindak Pidana Korupsi –UU KPK) on Wednesday (28/10) at Plenary Room, the Constitutional Court Building.

Minarno explains that the KUHAP is the example of Act that often reviewed because it considered irrelevant with recent legal condition, particularly regarding protection rights on suspects or defendants towards authority abuse conducted by law enforcers. Moreover, he considers the norms in the KUHAP are obscure. He argues that norm obscurity causes legal uncertainty and injustice. “The failure in providing legal certainty makes the State considered failed in providing protection to its citizens,” said Minarno in front of Justice Panel led by Deputy Chief Anwar Usman.

Minarno further says that the KUHAP supposes to provide protection to people, in order to prevent authority abuse conducted by law enforcers. Therefore, he assesses that injustice norms in the KUHAP shall be declared as unconstitutional.

Minarno then exemplifies several obscure norm formulations in the KUHAP. One of the obscure formulations is the formulation of quick, simple, and low-cost justice. He argues that the principle of quick justice in the KUHAP as referred in the word ‘promptly’ (‘segera’) has connotation of time, therefore it causes different interpretations. According to him, such multiple interpretations are stated in Article 50 (2) and (3) and Article 143 (1) the KUHAP. “The principle of quick justice as referred in the word ‘promptly’ causes multiple interpretations,” said Minarno.  

Minarno assesses the principle of quick justice supposes to be referred with evidentiary principles which consist of evidences, evidence gathering and evidentiary system. “If there is enough legal evidence, evidence gathering, and evidentiary system, a case then considered enough to be submitted to court. In the practice of law enforcement, the word ‘promptly’ (‘segera’) is interpreted carelessly, so cases will be promptly submitted to court without any consideration,” said Minarno. He also argues that the word ‘promptly’ in the KUHAP is often used as a tool or means to terminate pretrial request, as experienced by the Applicant.    

Pretrial Termination

At the session, Minarno also asserts that pretrial as stipulated in the KUHAP is aimed at providing legal protection towards arbitrary actions of law enforcers. However, Minarno says that the provision of Article 82 (1) letter d the KUHAP has removed pretrial aim.

Article 82 (1) stated, (1) Pretrial examination procedures in matter as intended by Article 79, Article 80, and Article 81 shall be stipulated as follows: (d) in the event that a case has already begun to be examinated at district court, whereas the examination of the request for pretrial review has not yet been completed then request aforementioned shall fail (Acara pemeriksaan praperadilan untuk hal sebagaimana dimaksud dalam Pasal 79, Pasal 80 dan Pasal 81 ditentukan sebagai berikut: ... (d) dalam hal suatu perkara sudah mulai diperiksa oleh pengadilan negeri sedangkan pemeriksaan mengenai permintaan kepada praperadilan belum selesai, maka permintaan tersebut gugur.).

According to him, pretrial termination is not relevant and unfounded if it is intended to quicken examination. It is because pretrial examination is limited within 7 days and the verdict immediately grants permanent binding, although reconsideration against the verdict allowed. “Basically, pretrial examination which conducted in the same time with case examination doesn’t hamper law enforcement, because pretrial examination only reviews the validity of law enforcers’ legal actions. While, case examination reviews on whether or not the alleged offense proven,” said Minarno.

After hearing Minarno’s testimony, Deputy Chief Anwar Usman who leads the session delivers that the next session will be held on Thursday November 5, 2015 at 11 a.m. with agenda hearing the House of Representatives’ and two Applicant’s Expert’s testimony.

As known, The Applicant is Rusli Sibua, Morotai Regent for terms 2012-2016 who officially named as suspect by the Corruption Eradication Commission (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) the KUHAP which regulate suspect rights of case submission promptness and defendant rights of case adjudication promptness. He also reviews Article 82 (1) the KUHAP which regulate pretrial termination due to court proceedings. Moreover, he also reviews Article 137 and 143 (1) the KUHAP and Article 52 (1) and (2) Act of Corruption Eradication Commission.

According to the Applicant, the Articles reviewed are misinterpreted by law enforcers, particularly regarding the handling of his bribery case. The Applicant claims that he has been filed pretrial request due to his suspect naming. However, the Applicant assumes the KPK has deliberate intention to terminate his pretrial request.  

“They (the KPK, ed.) 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 Applicant’s Attorney Ahmad Rifai at preliminary session on Wednesday (9/9). (Yusti Nurul Agustin/IR/Prasetyo Adi N)

---