Petitioners Jonlesvik Marulitua Sinaga, AAMSI Secretary General Herwanto, and Jelani Christo (left to right) attending the revision hearing of the material review of Law Number 8 of 1981 on Criminal Procedure Code (KUHAP), Tuesday (9/18) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) once again held the material review of Law No. 8/1981 on Criminal Procedure Code (KUHAP), Tuesday morning (9/18). The petition No. 66/PUU-XVI/2018 was filed by Minola Sebayang and Herwanto, General Chairperson and Secretary General of the All Indonesian Youth Advocates Association (AAMSI). 

In the hearing led by Constitutional Justice Suhartoyo accompanied by Constitutional Justices Arief Hidayat and Manahan Sitompul, the Petitioners explained that they had made improvements in accordance with the advice of the panel of justices in the previous session. One of the improvements made by the Petitioners was to change the legal counsels to Jelani Christo and Jonlesvik Marulitua Sinaga. 

Then, the Petitioners also revised their argument. They affirmed the argument that the pretrial\'s dismissal due to the commencement of a trial that was being examined in the judiciary in essence had violated the principle of the right of due process manifested in a pretrial mechanism. 

The Petitioners reviewed the provision on pretrial contained in Article 82 paragraph (1) letters c and d of the Criminal Procedure Code that reads, "Said examination shall be carried out speedily and within seven days at the latest the judge must have passed his verdict; and in the event the trial of a case has already been started by the court of first instance (district court), while the examination of the motion for a pretrial hearing has not yet been completed, the motion shall be dropped." 

The Petitioners had said that delay in the pretrial hearing is often used as an attempt to stall so that a case in the district court could begin trial. As such, the trial for the pretrial motion is dropped. In addition, they claimed that the pretrial process that is dropped at the start of the first trial of a case as contained in the provision of Article 82 paragraph (1) letter d of the Criminal Procedure Code, is not caused by the pretrial applicant\'s negligence, but is caused by the time limit arrangement for the start of the first pretrial hearing, which can result in a long process. Thus, the a quo article becomes a norm whose content is uncertain and unfair, because someone who does not commit negligence must bear the consequences of legal uncertainty in the ongoing pretrial process which is declared null and void. 

Then, the Petitioners had said that ongoing pretrial proceedings could be declared null, when the first hearing of the case begins. Pretrial institutions are not "second class" institutions that can be negated, because in essence pretrial institutions are a form of supervision and a mechanism of objection to the law enforcement process that is closely related to the guarantee of protection of human rights. According to them, when the first hearing of the case begins and the pretrial process has not been completed, the case hearing should be postponed until the pretrial verdict is completed in order to create fair legal certainty. In fact, he added, pretrial institutions are as important as other judicial institutions in guaranteeing the protection of human rights.

Therefore, in the petitum, the Petitioners requested that the Court declare Article 82 paragraph (1) letter c of the Criminal Procedure Code contradictory to the 1945 Constitution and not have binding legal force, insofar as the requirement is not fulfilled that "Said examination shall be carried out speedily and within seven days at the latest the judge must have passed his verdict" not interpreted "in the event the motion of a case has already been examined while the examination of the case at the district court has not yet been completed, the district court must postpone the examination of the case until the pretrial verdict" and declare Article 82 paragraph (1) letter d of the Criminal Procedure Code contrary to the 1945 Constitution mutatis mutandis if letter c has been declared contradictory and conditionally does not have legal binding power. (Lulu Anjarsari/Yuniar Widiastuti)