Plenary ruling hearing of judicial review of the Criminal Code on Tuesday (12/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) finally rejected the petition for the review of the Criminal Code (KUHP) filed by Sugihartoyo, a lecturer from Banyuwangi. "The ruling hears, rejects the Petitioner’s petition entirely," said plenary chairman Arief Hidayat in the presence of the other constitutional justices in the ruling hearing of Case No. 83/PUU-XV/2017.

In the legal considerations read by Constitutional Justice Saldi Isra, the Court is of the opinion that the positioning of the criminal act of embezzlement in the offices as a regular crime is a form of legal protection by the state to citizens of all possible abuse of office.

"By determining it as not a litigated crime, then the Criminal Code actually minimizes the opportunity to commit embezzlement in the office. Therefore, Article 374 of the Criminal Code is not contradictory to Article 28D paragraph (1) of the 1945 Constitution," said Constitutional Justice Saldi Isra who read the opinion of the Court.

According to the Court, Justice Saldi continued, at the same time, the positioning of embezzlement in office as a regular crime is very unreasonable to be judged or placed as a discriminatory norm.

"Because the qualification of the crime is only related to its categorization and not related to different application to certain people based on race, ethnicity, sex, color, religion, and so on as defined by discrimination in Article 1 number 3 of Law No. 39/1999 on Human Rights," Justice Saldi said.

Justice Saldi further explained that the Court considered that if the Petitioner’s basic argument was followed or even granted, the opposite would happen, which is further from legal certainty. It was based on the consideration that considering that the report of any crime must be done by the victim suffering material loss, he continued, almost every crime causes material losses for the victims. So this is what will damage the qualifications of litigated crime and regular crime, because all criminal acts will be litigated crimes. So when placed in the context of corruption, for example it is required that the party who can file a report is that who was materially harmed, it potentially keeps the public from reporting any indication of corruption.

"Considering based on the above considerations, the Petitioner’s petition for Article 374 of the Indonesian Criminal Code to be declared contradictory to Article 28D paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution is unreasonable according to law," Justice Saldi said. (Nano Tresna Arfana/LA/Yuniar Widiastuti)