Chief Justice of the Constitutional Court Anwar Usman reading out the verdict of the judicial review of the Law on Criminal Procedure Code (KUHAP), Tuesday (30/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) rejected the petition for the judicial review of Law No. 8/1981 on Criminal Procedure Code (KUHAP) for the whole, Tuesday afternoon (30/10). The decision 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). "Rejects the petition of the Petitioners for the whole," said Chief Justice of the Constitutional Court Anwar Usman, accompanied by other constitutional justices. 

The Petitioners reviewed the provision on pretrial contained in Article 82 paragraph (1) letters c and d of the Criminal Procedure Code (KUHAP). 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.

Speedy Trial 

In the opinion of the Court read out by Constitutional Justice Suhartoyo, the Court was of the opinion that the provision limiting the process of examining pretrial motions to seven days had reflected the principle of a speedy trial. A pretrial motion is only to test the formal validity of the process carried out by the investigators or public prosecutor related to the provisions of Article 77 of the Criminal Procedure Code juncto the Constitutional Court Decision No. 21/PUU-XII/2014 dated April 28, 2015. 

"The provision referred to has provided certainty by explicitly limiting the duration of pretrial motion examination. If the norm is declared unconstitutional, or a condition is set that the trial of the case can only start after the verdict of a pretrial motion, it would actually lead to legal uncertainty that is not in accordance with the Constitutional Court Decision No. 102/PUU-XIII/2015," said Suhartoyo. 

Regarding the Petitioners\' argument, the Court was of the opinion that it was merely an issue of implementation, which is indeed difficult to avoid and all comes down to the spirit and integrity of the law enforcers. However, observing the spirit of the Constitutional Court Decision No. 102/PUU-XIII/2015 mentioned above, there should be no more reason for pretrial judges not to decide on pretrial motions whose examination have already begun because it is in accordance with the deadline of case examination set by the panel of judges for the first trial of the case. 

"Likewise with the panel of judges examining the case should not immediately carry out the first trial if it is indeed known that pretrial examinations have begun, because it only takes seven days to wait for a pretrial motion to be terminated and the grace period should be minimal or at least that which is considered reasonable and sufficient by the panel of judges in determining the first trial in an ordinary case. This requires coordination and synergy between law enforcers without interfering in their respective authorities," Suhartoyo said. (Lulu Anjarsari/Yuniar Widiastuti)