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Anugerah Rizky Azhari as the Expert presented by the Petitioners after delivering his expertise related to the judicial review of the Juvenile Justice System Law (SPPA Law), Tuesday (31/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The regulation on maladministration sanctions for Public Prosecutors as stipulated in Article 99 of Law No. 11/2012 on the Juvenile Justice System Law (SPPA Law)should only be on administrative level, not criminal level. Therefore, there should be no criminalization of the public prosecutor who handle the juvenile cases due to excessive duration of child detention in the prosecution process.

This was conveyed by Anugerah Rizky Azhari as the Expert presented by Noor Rachmad and others, as Petitioners of Case No. 68/PUU-XV/2017 on the material review of the SPPA Law. Anugerah said that the relationship built by Article 99 of the SPPA Law is only on administrative level. The authority of detention during the prosecution process does exist with the public prosecutor.

"However, physically in the SPPA Law, detention is carried out by a temporary detention agency and if there is none, it is done by a welfare social institution. This problem indicates that it does not involve criminal law, but only administrative and technical levels," he explained at the hearing on Tuesday (31/10).

Anugerah continued, criminal sanctions against public prosecutors result in imperfect legal logic. "If the article is to prevent the violation of the time limit of child detention in the prosecution process, the choice to criminalize law enforcers shows imperfect legal logic," he added before the justices led by the Chief Justice Arief Hidayat.

In addition, Anugerah also proposed a solution to avoid criminalization of public prosecutors in the juvenile justice, especially related to the violation of the time limit of detention in the prosecution process. He mentioned the need for availability of access to information systems for all parties concerned. Such access can be established through coordination between the public prosecutor and the correctional facility officers.

"This issue can be resolved between the public prosecutor and the correctional facility officers who coordinate well on the notice of the detention period or extension of detention. This coordination should be built on an updated information system that is accessible to the public prosecutors, legal counsels, families of suspects, and the general public. The availability of information will be beneficial to all parties above," he said.

In the hearing, Director of Litigation of Legislation of the Ministry of Law and Human Rights Ninik Hariwanti representing the Government argued that the SPPA Law contains rules that protect the rights of children against violation, even by law enforcers.

Noor Rachmad and others, who are public prosecutors and are also registered as members of the Indonesian Prosecutors Association (PJI), argue that their constitutional rights are violated by the enactment of Article 99 of the SPPA Law. Article 99 of the SPPA Law reads, "The Public Prosecutor who deliberately fails to perform the obligations as referred to in Article 34 paragraph (3) shall be sentenced to a maximum of 2 (two) years imprisonment."

According to the Petitioners, Article 99 of the SPPA Law may potentially convict public prosecutors who conduct maladministration in exercising their authority in a juvenile case. The article is considered interfering with the independence of the public prosecutor, when the administrative mistakes of the public prosecutor should be accounted to the supervisor within the structure and level of supervision provided by the laws and regulations as stipulated in the Public Prosecution Law.

In addition, the Petitioners claim that the criminalization of administrative offenses should not be supervised and corrected by the judicial authority (in this case criminal justice). Supervision of correction by a criminal justice for such offenses can be regarded as power intervention. For this reason, the Petitioners requested that the Constitutional Court revoke the enactment of Article 99 of the SPPA Law. (Lulu Anjarsari/Yuniar Widiastuti)

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