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Petitioner’s attorney explaining the subject of the petition in the preliminary hearing of the judicial review of Law Number 36 of 1999 on Telecommunication, Wednesday (21/11) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The preliminary hearing of the judicial review of Law No. 36 of 1999 on Telecommunication was held by the Constitutional Court (MK) on Wednesday (21/11) afternoon. The case registered as No.  94/PUU-XVI/2018 was submitted by Sadikin Arifin to review Article 42 paragraph (2) of the Telecommunication Law.

Mar’ruf, The Petitioner’s Attorney, explained that in the a quo petition the Petitioner had constitutional interest because the enactment of Article 42 paragraph (2) of the Telecommunication Law was deemed contrary to the principles of a rule of law and to the Petitioner’s constitutional rights as guaranteed by Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia.

The Petitioner claimed that Article 42 paragraph (2) of the Telecommunication Law limited the legal subjects who can receive audio recording to the Attorney General and/or the Chief of the National Police of the Republic of Indonesia, and investigators of specific criminal offenses. This provision does not allow other subjects, the suspect and/or defendant in casu the Petitioner, in the trial process to obtain audio recordings.

Therefore, Ma’ruf said, the a quo provision does not give the Petitioner opportunity to submit evidence in criminal trial for the the Petitioner’s defense. In addition, the implications of the a quo provision have injured the Petitioner\\'s right to a fair trial in the criminal justice process that the Petitioner is undergoing.

Meanwhile, the other attorney of the Petitioners, Dominggus Christian, responded to the Petitioner\\'s petition that the provision of Article 42 paragraph (2) of the Telecommunication Law had contradicted the principle of due process of law because it did not open room for suspects or defendants to request audio recordings, so it was contrary to Article 1 paragraph (3) of the 1945 Constitution. 

In addition, said Dominggus, the Constitutional Court in the legal considerations of Decision Number 65/PUU-VII/2010 dated August 8, 2011 stated, "Criminal procedural law serves to limit state power to individuals and/or the community, especially suspects and defendants involved in the process." 

"In criminal procedural law, verification in essence has an important role to determine whether a person can be convicted or not for an offense that they committed when the alleged offense is an offense that has been determined in writing to be against criminal law. Because, it is through verification that the state can determine the defendant\\'s guilt for the offense they committed," said Dominggus. 

Dominggus explained that verification is a process to determine and declare one\\'s offense and a very crucial part of the criminal procedural law. In the Petitioner\\'s trial process in the North Jakarta District Court, the public prosecutor stated that he was unable to grant the Petitioner\\'s request to present audio recording and transcript.

Revise Format of Petition 

Constitutional Justice Aswanto highlighted the format of the petition. "We already understand the format of your petition, although there is something unusual about the unusual petition. The introduction is unusual. In a judicial review petition, there are four parts that are most important," said Justice Aswanto. 

"I have not been able to grasp the constitutional loss [due to] the norm that you requested for review. You should re-elaborate so the denial of the right to request audio recording seem to have violated the Constitution," Aswanto added. 

Constitutional Justice I Dewa Gede Palguna advised the Petitioner not to make the Constitutional Court\\'s authority too complicated, but to quote from the 1945 Constitution, the Constitutional Court Law, and the Judicial Power Law. Likewise, he advised that in the legal standing, the Petitioner start with the norm being requested for review. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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