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Petitioner H. R. Abdussalam in the ruling hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Thursday (27/8) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) dismissed the judicial review petition of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP), which was filed by police retiree, lecturer, researcher and author Prof H.R. Abdussalam and Samsudin, an employee of a private company. The pronouncement of Decision No. 46/PUU-XVIII/2020 was held on Thursday afternoon, August 27, 2020 under health protocols on COVID-19. “The [Court] adjudicated, declares the petition of Petitioner I and Petitioner II not accepted," said Chief Constitutional Justice Anwar Usman along with the other constitutional justices.

The Court is of the opinion that Petitioner I had his legal standing and already elaborate his constitutional loss to the enactment of Article 109 paragraph (2) of the Criminal Procedure Code, while Petitioner II didn’t.

On number 2 of the petitum, the Petitioners requested that the Court declare Article 109 paragraph (2) of the Criminal Procedure Code unconstitutional. On number 3, they requested that the material of Article 109 paragraph (2) be replaced with other material.

"However, it is impossible for the two petitum to be submitted in one cumulative unit as it would have different legal consequences. With a petitum requesting the a quo article to be declared unconstitutional, the consequence would be that it be revoked. Meanwhile, the petitum requesting that the article be changed or replaced would have a legal consequence in that the article still existed, with the addition of a formula [as intended] by the Petitioners and [it would] contain the material of other articles. This would cause inconsistency between the posita, which mostly describes the implementation of norms, and the petitum. Therefore, the petition becomes vague," said Constitutional Justice Enny Nurbaningsih, who read out the opinion of the Court. 

Also read:

Justice Says Petition on Criminal Procedure Code Focus Too Much on Concrete Cases

Additional Petitioner Challenges Criminal Procedure Code

H.R. Abdussalam and Syamsudin (Petitioners I and II) in case No. 46/PUU-XVIII/2020 challenged Article 109 paragraph (2) of the Criminal Procedure Code, which reads, "In the event that the investigator has ended an investigation in the absence of sufficient evidence or the does not constitute a criminal act or the investigation has been terminated by law, the investigator informs the public prosecutor, the suspect, or his/her family about the matter."

Petitioner I is a former National Police investigator, a former Kopkamtib (Operational Command for the Restoration of Security and Order) investigator, and a former investigator of corruption directly under the Attorney General, as well as a researcher and author, who resided in an apartment. He made a report No. LP/05/I/2015/Bareskrim of fraud regarding a tenement unit to the police on January 6, 2015, which was then handed over to the Jakarta Police Chief with letter No. B/37/Ops/I/2015/Bareskrim on January 7, 2016 regarding Transfer of Police Report.

However, the Jakarta Police Investigator then issued an Investigation Termination Letter No. S.Tap/566/VII/Ditreskrimum on July 13, 2015 without giving him a copy to date, leading him to deem the investigation process violating existing procedures. Upon termination of the investigation of the report, the Petitioner filed a pre-trial motion but was rejected by the Decision of the South Jakarta District Court No. 88/PidPraper/2015/PN.Jkt.Sel dated October 6, 2015.

Then the Petitioner filed a case review petition to the Chief Justice of the Supreme Court through the Chairman of the South Jakarta District Court and based on the Case Review Decision No. 39 PK/PID/2016 the petition was dismissed. He then received a copy of the letter from the Jakarta Police Police Criminal Investigations Directorate (Ditreskrimum) No. R/1529/II/2020/Ditreskrimum dated February 29, 2020 regarding Notification of Termination of Investigation, without a stipulation letter of termination of the investigation. He then used this to file a pre-trial motion to the Head of the South Jakarta District Court on March 12, 2020. The South Jakarta District Court rejected the motion with Decision No. 28/Pid.Pra/2020/PN.Jkt.Sel, dated April 28, 2020.

Writer: Nano Tresna Arfana
Editor: Nur R.
PR: Raisa A.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 8/31/2020 17:14 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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