The Petitioners after attending the preliminary hearing of the judicial review of Article 70 paragraph (1) of the Criminal Procedure Code (KUHAP), Thursday (16/11) in the Courroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held the preliminary hearing of the judicial review of Article 70 paragraph (1) of the Criminal Procedure Code (KUHAP) on Thursday (16/11). Khaeruddin and Alungsyah, both advocates, are registered as Petitioners for Case No. 92/PUU-XV/2017. Both of them challenge the phrase \'at any time\' in Article 70 paragraph (1) of KUHAP. The a quo article reads, "The legal adviser referred to in Article 69 shall be entitled to contact and speak with the suspect at any level of examination and at any time for the defense of his case."

In the hearing, the two Petitioners were present without legal counsel representation. Alungsyah considers the phrase \'at any time\' to be contradictory to Article 1 Paragraph (3) and Article 28D Paragraph (1) of the 1945 Constitution. He explained about a legal counsel who wished to visit his client during investigation process and [kept from doing so] due to the enactment of the a quo regulation. This is not only felt by the Petitioners as advocates, but also for all other legal counsels in Indonesia.

"In the petitum, we requested that the phrase \'at any time\' not have binding legal force as long as it is not interpreted as having no time limit, including holidays, provided for the benefit or defense of the case," he said in the hearing led by Justice Manahan M.P. Sitompul.

Justices’ Advice

In response to the Petitioners\' petition, Constitution Justice M.P. Sitompul sees that there is no problematic norm in this case, but the implementation in the field that may be problematic. He sees that the interpretation of the norm in the phrase \'at any time\' is quite broad. However, in its application it may be related to the institution\'s internal regulation, which may become a constraint. "It means that due to your interest as a legal adviser, you should go there, but the correctional facility has a time schedule for visits," he explained.

Similarly, Constitutional Justice Maria Farida Indrati stated that the petition is an issue of the implementation of the norm. The Petitioners who feel they cannot visit at any time feel that their constitutional rights are violated, even though each institution has a different schedule for visits. (ARS/LA/Yuniar Widiastuti)