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Criminal law expert of Universitas Muhammadiyah Jakarta Chairul Huda delivers Applicant’s Expert’s testimony at judicial review session on the Criminal Procedure Code and Act of the Corruption Eradication Commission (UU Komisi Pemberantasan Tindak Pidana Korupsi –UU KPK), on Thursday (5/11) at Plenary Room, the Constitutional Court Building.

 

 

 

A series of judicial review proceedings on Act Number 8 Year 1981 of the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana –KUHAP) and Act Number 30 Year 2002 of the Corruption Eradication Commission (Undang-Undang Komisi Pemberantasan Tindak Pidana Korupsi –UU KPK) enters the final stage on Thursday (5/11) after a fourth session. The Applicant summons a criminal law expert of Universitas Muhammadiyah Jakarta Chairul Huda. Huda delivers testimony in front of Justice Panel led by Chief Justice Arief Hidayat.

Huda delivers testimony regarding Applicant’s argument saying Article 82 (1) letter d the KUHAP contrary to the 1945 Constitution due to its ambiguity. Huda justifies the argument and says that the Article practically generates multiple interpretations.

Article 82 (1) letter d the KUHAP stated,

“In the event that a case has already begun to be examined by district court, whereas the examination of pretrial request hasn’t yet been completed, then the request shall fail.” (dalam hal suatu perkara sudah mulai diperiksa oleh pengadilan negeri sedangkan pemeriksaan mengenai permintaan kepada praperadilan belum selesai, maka permintaan tersebut gugur.)

 

“In my opinion, the provision seems simple. However, it generates multiple interpretations in law practice, particularly regarding the use of phrase ‘has already begun to be examined by district court’ (‘mulai diperiksa oleh pengadilan negeri’),” said Huda.

Huda explains that multiple interpretations on Article 82 (1) letter d the KUHAP generate problems in pretrial practice. He then exemplifies on the connection between the Article with Article 77 the KUHAP which stated that district court is authorized to examine and adjudicate pretrial. Considering the provision of Article 77 the KUHAP, Huda says the provision may imply that pretrial is authorized by district court.

“If pretrial is authorized by district court, why pretrial request annulled when a case begins to be examined by district court? Because of the phrase ‘has already begun to be examined by district court’, it seems like pretrial examination is not examined by district court,” Huda further said.

Moreover, Huda assesses that pretrial annulment provision in Article 82 (1) letter d the KUHAP will be ambiguous if it is linked with Article 147 the KUHAP which stated ‘after district court has received case transferring letter from general prosecutor, the district court head shall learn whether the case including in the court authority  which he led’ (‘setelah pengadilan negeri menerima surat pelimpahan perkara dari penuntut umum, ketua mempelajari apakah perkara itu termasuk wewenang pengadilan yang dipimpinnya’). According to Huda, the word ‘learn’ (‘mempelajari’) in Article 147 the KUHAP has similar meaning with ‘examine’ (‘memeriksa’).

“In more general sense, the word ‘learn’ (‘mempelajari’) in this Article (Article 147 the KUHAP, ed.) has similar meaning with the word ‘examine’ (‘memeriksa’). When the district court head learns an indictment, he basically examines whether or not the indictment including in the court’s relative competence. The meaning of ‘has already began to be examined by district court head’ may means ‘has already began to be examined by district court with regard to pretrial annulment,” explained Huda.

After linking Article 82 (1) letter d with several Articles in the KUHAP, Huda asserts pretrial annulment provision, which occurred because the case has begun to be examined by district court, is ambiguous. He then gives opinion that the phrase ‘has begun to be examined by district court’ in Article a quo shall be interpreted ‘after district court justice sets the date of session and commands general prosecutor to summon the defendant’ (‘setelah hakim menetapkan hari sidang dan memerintahkan penuntut umum memanggil terdakwa’).

“In my opinion, the phrase ‘has begun to be examined by district court’ in Article a quo shall be interpreted ‘after district court justice sets the date of session and commands general prosecutor to summon the defendant’. Thus, it is correct that a person has been defendant at the date of session and it is logically that the pretrial request shall be included in the case (that filed by prosecutor, ed). The pretrial then no longer adjudicated by pretrial justice,” said him.   

As known, Morotai Regent Rusli Sibua files petition which registered in Case Number 102/PUU-XIII/2015. He is named suspect by the KPK for committing bribery on 2011 Morotai regional election. He reviews several provisions, which are Article 50 (2) and (3) the KUHAP which regulate suspect rights to case promptness proceedings and  defendant rights to case promptness adjudication; Article 82 (1) the KUHAP which regulates pretrial annulment; Article 137 and Article 143 (1) the KUHAP. Moreover, he also reviews Article 52 (1) and (2) Act of the Corruption Eradication Commission.

According to the Applicant, the Articles reviewed have been misinterpreted in law enforcement, particularly in judicial process of bribery case he alleged into. He claims that he has filed pretrial request. However, the Applicant assumes the KPK has sabotaged his request, which cause his pretrial request annuled

“They deliberately want to annul 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 violates the law, the KUHAP, and even the KPK standard operating procedure,” said Rifai as Applicant’s Attorney at preliminary session on Wednesday (9/9). (Yusti Nurul Agustin/IR) 

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