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M. Soleh as attorney of the Petitioner delivering the principal points of the petition for the judicial review of the Criminal Procedure Code (KUHAP) on Monday (15/1) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held a preliminary hearing of case No. 4/PUU-XVI/2018 petitioned by Sutarjo, an advocate, on Monday (15/1). Through his attorney, Muhammad Sholeh, the Petitioner requested the review of Article 20 paragraphs (1) and (2) Law No. 8/1981 on the Criminal Procedure Code (KUHAP). 

In the hearing led by Constitutional Justice Maria Farida Indrati accompanied by Constitutional Court Justices I Dewa Gede Palguna and Suhartoyo, Sholeh claimed that the a quo article harms the constitutional rights of the Petitioner. Article 20 paragraph (1) reads, "In the interest of investigation, the investigator or assistant investigator on order of the investigator as intended in Article 11 has the authority to make a detention." Article 20 paragraph (2) reads, "In the interest of prosecution, he public prosecutor has the authority to make a detention or further detention." 

Sholeh explained that the Petitioner is the attorney of a person named Khoyanah who has a land sale dispute case in Gresik Regency. In this case, the Petitioner was called as a witness, and then was declared a suspect, and even detained by the Investigator by the Investigation Order No. SP.Gas/2104/XI/2015/Direskrimun dated November 30, 2015 and Detention Order No. SP.Han/02/I/2016/Ditreskrimun, of East Java Police Criminal Investigations Directorate on January 16, 2016. 

The Petitioner stated that the detention by the East Java Police Investigator had impaired his constitutional rights when he is an advocate who has immunity right in carrying out his profession, either in court or outside the court in the framework of the client\'s defense. The Petitioner believes he should have earned that right. Even in relation to his arrest, he had filed a pre-trial lawsuit, but lost. Consequently, the Petitioner claimed the provision of Article 82 paragraph (1) of the Criminal Procedure Code, which he also considered to be related, potentially impairing his constitutional rights. Thus, Sholeh stated that the Petitioner has met the qualifications as meant in the provision of Article 51 paragraph (1) letter a of the Constitutional Court Law. 

Furthermore, Sholeh elaborated that the article being reviewed had been previously reviewed in the Constitutional Court, but that petition which was registered as No. 94/PUU-XIV/2016 was not granted because the Petitioner had no legal standing. "It means that in the previous case, the Constitutional Court did not conduct material judicial review of the a quo article that is now being reviewed by the Petitioner. So, naturally the a quo case is not nebis in idem," Sholeh said. 

On the Petitioner\'s detention, Sholeh shared his view that when a suspect or defendant is arrested or detained, it is as if they were in a dark room and powerless. In essence, it equals as eliminating one\'s independence. According to Sholeh, if a defendant that was previously detained by the investigator or public prosecutor is declared guilty by a judge, the verdict only serves to encourage the investigator and public prosecutor. "It means that the judge is [an enabler] for the detention by the investigator and public prosecutor," Sholeh said. 

Sholeh added that the legislators are unfair. On the one hand, the investigator is authorized to seize goods, but the a quo authority received approval of the court to act as a means of control. Whereas according to the Petitioner, the authority of detention is the absolute authority of the judge, not the investigator or public prosecutor. That is because, according to the Petitioner, the judge is authorized in the name of justice to deprive a suspect or defendant of independence. "So, the a quo article contains legal uncertainty as affirmed in Article 28D paragraph (1) of the 1945 Constitution," said Sholeh. 

Although this petition was filed for the Petitioner’s benefit, Sholeh stated that if the a quo petition is granted by the Court, the provision of the a quo article will be applicable to the public so that investigators and prosecutors will not have the authority to arrest a suspect. In addition, according to the Petitioner the a quo provision also applies to the Corruption Eradication Commission (KPK). 

Justices’ Advice 

Based on the explanation by the Petitioner\'s attorney, Justice Maria gave advice on the article being reviewed. She observed that the Petitioner\'s petition explains the concrete cases experienced associated with the articles in the Criminal Procedure Code. Therefore, Justice Maria requested that the Petitioner re-examine that if case is granted it could lead to great changes in the Criminal Procedure Code. "That is the draft of the Criminal Procedure Code. This a quo article does not stand alone and refers to Article 11 of the Criminal Procedure Code Law. So, eliminating it, which is very closely related to other articles, will impact not only that article," Justice Maria explained. 

Similarly, Justice Palguna also observed that when this article is considered contradictory, it will dismantle the Criminal Procedure Code. "Now when you imagine departing from a concrete case, what would happen to the judiciary? Is the construction of the Perppu [(government regulation)] already considered because then the president\'s duty would just be making Perppu?" he asked. 

At the end of the hearing, the Panel gave [the Petitioner] the time until Monday, January 29, 2018 at 10.00 a.m. to revise his petition. (Sri Pujianti/LA/Yuniar Widiastuti) 

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