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Principal Petitioner Erko Mojra delivering the subjects of the petition in the material judicial review of the Criminal Procedure Code (KUHAP), Tuesday (19/11) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—State civil apparatus (ASN) Erko Mojra, who was charged with defamation, challenged Article 197 paragraph (1) letters b, c, d, e, f, h, and paragraph (2) of Law Number 8 of 1981 on the Criminal Procedure Code (KUHAP). The preliminary hearing of Case No. 69/PUU-XVII/2019 was held on Tuesday (19/11/2019) in the Plenary Courtroom of the Constitutional Court.

In his petition, Erko conveyed that he was an Indonesian citizen who was a Defendant based on the Decision of the Kasongan District Court No. 99/Pid.Sus/2018/PN.Ksn dated April 29, 2019, affirmed by the Decision of the Palangkaraya High Court Number 35/PID.SUS/2019/PT.PLK dated June 13, 2019, and reaffirmed by the Decision of the Supreme Court of the Republic of Indonesia Number 3303 K/Pid.Sus/2019 dated October 17, 2019. He felt his constitutional rights were violated by the enactment of the phrase "batal demi hukum" ("null and void") in Article 197 paragraph (2) in conjunction with Article 197 paragraph (1) letters b, c, d, e, f, h of the Criminal Procedure Code.

Without a legal counsel, Erko said that he had not yet received a copy of the cassation decision. When a copy has been sent and received by the litigating parties, the decision will have permanent legal force (inkracht van gewijsde). According to him, the phrase "null and void" in Article 197 paragraph (2) in conjunction with Article 197 paragraph (1) l letters b, c, d, e, f, h of the Criminal Procedure Code is unclear, indecisive, ambiguous, and multi-interpretative, thus counterproductive to the objectives, one of which is to provide protection for human rights. The phrase does not provide certainty and fair legal protection for the Petitioner.

Erko also stated that if the a quo article was declared unconstitutional and not legally binding by the Constitutional Court insofar as it was not interpreted as a decision that had originally been considered non-existent, then the potential harm that the Petitioner was concerned about would not happen. This, Erko added, would not result in delayed justice and petitioners would get legal certainty and even fair legal protection.

Therefore, in his petitum, Erko requested that the phrase "null and void" in Article 197 paragraph (2) in connection with Article 197 paragraph (1) letters b, c, d, e, f, h of the Criminal Procedure Code be declared unconstitutional. "And does not have binding legal force insofar as it is not interpreted ‘as a decision that from the beginning was considered non-existent, has no legal value, has no legal force and cannot be executed by prosecutors,’" he said.

Justices’ Advice

The bench, led by Constitutional Justice Manahan M. P. Sitompul gave recommendation that the Petitioner revise the format of the petition following the Constitutional Court Regulation (PMK). Constitutional Justice Wahiduddin Adams advised the Petitioner to study the petitions submitted to the Court. He also requested that the article be focused on the violation of the constitutional right and adjusted to the petitum. He also requested that the constitutional loss be elaborated, not only the concrete case. “In the petitum, [elaborate] whether there is any Constitutional Court decision that ordered the prosecutor office or the police,” he said.

Meanwhile, Constitutional Justice Enny Nurbaningsih advised that the Petitioner elaborate on the constitutional loss due to the enactment of Article 197 paragraph (2). “There is no need to quote it verbatim and repeatedly,” she said.

The bench requested that the Petitioner revise the petition in 14 working days. The next hearing will be in session on Tuesday, November 19, 2019 to revise the petition. (Lulu Anjarsari)

Translated by: Yuniar Widiastuti

 

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