Lecturer of the Faculty of Law of Jember University, Nurul Ghufron, as expert presented by the Petitioner lending his expertise in the hearing of material judicial review of Criminal Procedure Code, Monday (5/3) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The detention of a suspect must still take into account certain requirements in order to avoid violation the suspect\'s human rights. The notion was conveyed by a lecturer of the Faculty of Law of Jember University, Nurul Ghufron, an Expert for the Petitioner presented in the hearing of case No. 4/PUU-XVI/2018 on Monday (5/4) in the Plenary Courtroom of the Constitutional Court. 

In his statement, Ghufron emphasized detention that protects human rights based on the 1945 Constitution. In connection with the judicial review of Article 20 paragraphs (1) and (2) of Law No. 8/1981 on the Criminal Procedure Code (KUHAP) claimed inconsistent with the 1945 Constitution by the Petitioner, Ghufron saw the importance of implementing the principle of proportionality and necessity when detaining a suspect or defendant. 

According to Ghufron, in the two principles, he saw three elements, first legislation that must be created to protect the human rights of every human fairly without discrimination. However, he continued, there should be restrictions on human rights in accordance with the general principle to protect the public interest, security, and order and to protect the fundamental rights of others. Then, restrictions must be in accordance with existing laws and is the final instrument solely for urgent public interest. 

"So, do not aim to protect the rights of citizens, but then violate the constitutional rights of other citizens," said Ghufon in the presence of the Chief Justice of the Constitutional Court, Arief Hidayat. 

Detention Period

On the consequences of the detention period, Ghufron saw the facts on the field that the detention period is counted as part of imprisonment period. This, according to Ghufron, will lead to confusion in the determination of the imprisonment period that should be the authority of the judge. This reduced authority is due to the need to accommodate for detention period of that has been imposed on by the investigator or the public prosecutor. There is even the impression that the investigator or prosecutor has trapped the judge, both to determine the guilt and the imprisonment period that is the authority of the judge. However, later, [the judge’s authority] is structurally reduced by the authority of detention by investigator and prosecutor. "The detention period reduces the imprisonment period though it is the jurisdiction of the judge and must be with the permission of the judge. If not, then the investigator has reduced the authority of the judge," Ghufron explained. 

Sutarjo, a lawyer, filed the petition because of his detention by the East Java Police investigators. Previously, the Petitioner reported Mashudi, a notary public (PPAT), regarding dispute on the sale and purchase of brackish water land involving the Petitioner’s client. Afterwards, the Petitioner received an arrest warrant because Mashudi had reported him and his client for alleged fraud and/or slander and/or false complaint. The Petitioner argues that the form of protection of one\'s dignity manifests, among others, by the guarantee of the right of a person not to be arbitrarily arrested and detained. As stipulated by Article 9 of the Universal Declaration of Human Rights (UDHR) 1948.

According to the Petitioner, detention is the deprivation of a person\'s of freedom, and that legislators should provide control over law enforcement officials in the event of detention in order to avoid human rights violations. When a suspect does not hinder the investigation, does not escape, investigators or public prosecutors can still detain them. In fact, the authority of detention is often used for transaction, depending on whether the investigator or the prosecutor detains the suspect or not. The suspect is [often] not granted the right to defend himself against arrest. (Sri Pujianti/LA/Yuniar Widiastuti)