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Principal Applicant represented by Sodikin, Okta Heriyawan, Bayu Segara and Syaugi Pratama deliver revision points at judicial review session on the Criminal Procedure Code, on Tuesday (10/11) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) holds revision session on Article 50 (1) and (2) Act Number 8 Year 1981 of the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana –KUHAP) on Tuesday (10/11), at Plenary Room, the Constitutional Court Building. On the session led by Constitutional Justice I Dewa Gede Palguna, the Applicant strengthens petition arguments.

The Forum of Law and Constitution Studies (Forum Kajian Hukum dan Konstitusi –FKHK) as Applicant cites several arguments from law experts, among others is Gustav Radbruch. According to Radbruch, there are three law ideas, which are certainty, usefulness, and justice. All three ideas aforementioned are citizen’s constitutional rights that shall be guaranteed and protected by the State, as stipulated in Article 28D (1) the 1945 Constitution.

Representing by Applicant’s Attorney Syaugi Pratama, the Applicant also cites Jimly Asshiddiqie’ argument saying regulatory language has traits of clarity, direct formulation, formal, and adherence to legal needs. “Based on several experts’ opinion, the word ‘promptly’ (‘segera’) in Article a quo doesn’t reflect modern criminal law which contains firm legal norms and humanity values. Thus, the word ‘promptly’ doesn’t provide legal certainty on time limit as intended by Article a quo,” said Pratama.

As known, Applicant’s petition is registered in Case Number 123/PUU-XIII/2015.

The Applicant further says that philosophically legal certainty shall contain justice. The issue of legal certainty has been appeared in Court Verdict Number 3/PUU-XI/2013. In Court’s Consideration stated in the verdict, the Court provides interpretation that the word ‘promptly’ in Article 18 (3) the KUHAP doesn’t provide legal certainty as stipulated in Article 28D (1) the 1945 Constitution.

“In our opinion, such legal certainty doesn’t provide justice for suspects. It is problematic that the word ‘promptly’ doesn’t provide certain time limit,” added him.

The Applicant then assesses Article 50 (1) and (2) need limitative formulation that provide time limit, likewise Article 88 (2) and (3) the KUHAP that provide time limit on case dossier (berkas perkara) filing. The Applicant believes that such time limit will support law enforcer’s professionalism, particularly for investigators and prosecutors in preparing case dossier before court proceedings. Thus, the Applicant requests the Court to declare the word ‘promptly’ in Article 50 (1) and (2) the KUHAP contrary to the 1945 Constitution and has no legal binding if it isn’t interpreted ‘not later than 60 days if the suspect arrested and 90 days if the suspect not arrested’ (‘tidak lebih dari 60 hari apabila tersangka ditahan, 90 hari apabila tersangka tidak ditahan’).

Previously, the Applicant assesses the word ‘promptly’ in Article 50 (1) and (2) the KUHAP doesn’t provide certain time limit that result on the lack of legal certainty. The Articles reviewed are:  

Article 50 (1)

“Suspects have rights to be examined promptly by investigators and thereafter have his case referred to general prosecutors.” (“Tersangka berhak segera mendapat pemeriksaan oleh penyidik dan selanjutnya dapat diajukan kepada penuntut umum.”)

Article 50 (2)

“Suspects have rights to have his case promptly submitted to court by general prosecutors.” (“Tersangka berhak perkaranya segera dimajukan ke pengadilan oleh penuntut umum.”)

 

“The reality is, a lot of suspects that have been named suspect, but they are yet prosecuted under reason investigation files still in completion,” said the Applicant on Tuesday (27/10). 

Without certain time limit, the Applicant argues, suspects may burdened by suspect status in their whole life. The Applicant assesses that such condition is contrary to suspect’s rights to obtain simple, quick and low-cost legal process. (Lulu Hanifah/IR/Prasetyo Adi N)

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