Panel judicial review hearing of the Criminal Procedure Code (KUHAP), Thursday (7/2) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) held the second judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Thursday afternoon (7/2/2019). The case No. 9/PUU-XVII/2019 was petitioned by advocates and Muslim activists in the Alliance of Citizen Movements (Aliansi Anak Bangsa).

The Petitioners requested the judicial review of Article 77 letter a of the Criminal Procedure Code along the phrase “termination of an examination.” Article 77 letter a of the Criminal Procedure Code reads, “whether or not an arrest, detention, termination of an examination or prosecution is valid.” The Petitioners argued that they had been harmed by the enactment of the Code along the phrase “termination of an examination.” This is because the norm had limited and eliminated the meaning of the control function in the law enforcement of criminal procedure, because in essence examination is inseparable from investigation. The enactment of the phrase was deemed to have eliminated the legal guarantee and protection of the Petitioners as witness who reported a criminal offense.

“Article 77 letter a along the phrase ‘termination of an examination’ will narrow the room for pretrial control in the law enforcement. The Petitioners have lost the right to control in the investigation process, that the law enforcement can use loopholes by stopping the report of a criminal offense being investigated,” legal counsel Arvid Martdwisaktyo said before the panel led by Constitutional Justice I Dewa Gede Palguna.

The Petitioners reported an alleged blasphemy incident committed by Sukmawati Soekarno Putri in a concrete case dated April 4, 2018. However on July 9, 2018, the examination of the Petitioners\' report was terminated on the grounds that the case was not deemed a criminal act. After the investigation was stopped by the National Police Criminal Investigation Unit, the Petitioners submitted a pre-trial application in the South Jakarta District Court, which was later rejected by the panel of judges, who argued that the termination of the investigation was not included in the pre-trial object as stated in Article 77 of the Criminal Procedure Code. Because the court ruling, the Petitioners argued that the phrase "termination of an examination" must also be interpreted as termination of examination to protect the rights of the Petitioners as reporting witnesses, whose reports were dismissed during the investigation process, must allow them to claim their rights to obtain legal defense through pre-trial institutions that have control function in the examination of criminal cases.

Based on those arguments, the Petitioners requested that the Court declare the impugned article not having legal force and contrary to the 1945 Constitution.

Constitutional Loss

Justice Palguna suggested that the actual reason for the petition be elaborated is the explanation of the constitutional loss. “Part of the incident elaborated would better be put in the explanation of the constitutional loss because it is the right place, because [it is] the condition to prove the actual loss, right? There you will connect it to part of the reason that is now already in your elaboration or the legal standing of the Petitioners,” he advised.

Constitutional Justice Suhartoyo requested that the Petitioners consider the changes in the Criminal Procedure Code taking place in the House of Representatives. Following the development of the Criminal Procedure Bill, he explained that the investigation would be eliminated. Therefore, he asked that the Petitioners consider whether to request a legislative review or judicial review. “Will it then be more suited for legislative review or will it be faster here [(the Constitutional Court)] first? This should be a recommendation for the House that forms legislation and the Government, who is now discussing the Criminal Procedure Bill,” he affirmed.

The panel of justices gave the Petitioners 14 days to improve the petition. The next hearing was scheduled to hear the petition revision. (Lulu Anjarsari/Yuniar Widiastuti)