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The Petitioner’s attorney Beni Dikty Sinaga reading out the subject of petition in the material review hearing of Law Number 35 on Narcotics, Tuesday (10/9) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held the preliminary judicial review hearing of Law Number 35 on Narcotics on Tuesday (10/9/2019). The Petitioners of case No. 44/PUU-XVII/2019 are Andi a.k.a. Aket bin Liu Kim Liong, who requested the judicial review of Article 132 paragraph (1) of Law Number 35 of 2009.

Article 132 paragraph (1) of the a quo law reads, “Any attempt for or evil conspiracy to commit criminal conduct of Narcotics and Narcotics Precursor as referred to in Articles 111,112,113,114,115,116,117,118,119,120,121,122,123, 124,125,126, and 129, the perpetrator shall be charged under the same imprisonment punishment pursuant to clauses as referred to the said articles.”

The Petitioner’s attorney Beni Dikty Sinaga explains that the Petitioner is an individual Indonesian citizen who had been charged with conspiracy without rights or against the law as an intermediary in the selling of narcotics group I based on Banten High Court Decision Number 109/PID/2018/PT BTN dated January 9, 2019 giving death penalty to the Petitioner.

The enactment of Article 132 paragraph (1) of Law Number 35 of 2009, according to the Petitioner, resulted in legal injustice and uncertainty that harm the constitutional rights and authorities of the public, including the Petitioner.

"It cannot be denied that the fact that the norm of Article 132 paragraph (1) of Law Number 35 of 2009 was passed by state administrators so that any attempt for or evil conspiracyto commit criminal conduct of narcotics and narcotics precursor [is imposed with maximum punishment]. This clearly results in legal injustice and uncertainty that harm the constitutional rights and authorities of the public, including the Petitioner,” Beni conveyed to the panel of justices led by Constitutional Justice I Dewa Gede Palguna.

Therefore, Beni said, the Petitioner has a legal standing in the petition for judicial review of Article 132 paragraph (1) of Law Number 35 of 2009, which, according to the Petitioner, does not provide a guarantee of legal certainty.

Beni reasoned that, first, the phrase imprisonment punishment in Article 132 paragraph (1) of Law Number 35 of 2009 contradicts Article 28D paragraph (1) of the 1945 Constitution because it causes legal uncertainty. It has caused legal uncertainty for the Petitioner because of the absence of a clear interpretation of the challenged phrase in a quo article.

Beni also argued that the enactment of the a quo article had harmed the Petitioner as he had been given death penalty for the crime while prison sentence also exist in the criminal law in Indonesia pursuant to Article 10 of the Criminal Code (KUHP). "However, the phrase imprisonment punishment was misinterpreted by some law enforcers such as judges and prosecutors, at least in the case experienced by the Petitioner," he  said.

Format of Petition

Constitutional Justice Suhartoyo commented on the format of the petition. "The format is nearly adequate. However, [please] emphasize the argument. You argue your constitutionality loss, but in fact you are not balancing [it] with the actions committed by your Principal [Petitioner]. If the Principal [Petitioner]\'s wishes can then be fulfilled by the Court, what was the action done substantially by your Principal [Petitioner], how much is the proof, how many hundred kilograms? Do you still remember?" he said.

Constitutional Justice Arief Hidayat focused more on the judicial review. "In terms of completeness as a petition for judicial review, I see that in the legal standing section, the Petitioner\'s constitutional loss needs to be strengthened so that we can argue or conclude that there is indeed constitutional loss," he said.

The panel of justices gave the Petitioner 14 working days to make revision to the petition. (Nano Tresna Arfana/LA)

Translated by: Yuniar Widiastuti

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