Tuesday, April 27, 2021 | 13:00 WIB
Constitutional Justice Suhartoyo opening the preliminary hearing of the Ombudsman Law virtually, Tuesday (27/4/2021) from the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations—Depok City civil servant (PNS) Hendry Agus Sutrisno filed for the judicial review of Article 36 paragraph (1) letter b of Law No. 37 of 2008 on Ombudsman. The preliminary hearing of case No. 7/PUU-XIX/2021 was held by the Constitutional Court (MK) on Tuesday, April 27, 2021 in the panel courtroom.
Article 36 paragraph (1) letter b of the Ombudsman Law reads, “The Ombudsman shall reject the Grievance as specified under Article 35 point a in the event: … b. The substance of Grievance is currently under and has become the object of judicial proceedings, except such Grievance is related to maladministration in the process of court examination.” The Petitioner claimed it violated Article 28D paragraph (1), Article 28G paragraph (1), and Article 28I paragraphs (2) and (4) of the 1945 Constitution.
Before the panel chaired by Constitutional Justice Suhartoyo, Hendry stated that under the a quo article, the Ombudsman cannot receive any grievance from the people that is and has become the object of judicial proceedings, including pretrial, except if it is related to maladministration in judicial examination, including pretrial. Meanwhile, pretrial institutions can only adjudicate and rule the formal aspect of cases.
Meanwhile, Hendry added, under Article 2 paragraphs (2) and (4) of the Supreme Court Regulation No. 4 of 2016 on Prohibition against Reviewing Pretrial Decisions, investigators has the full authority concerning the material aspect of the implementation of criminal provisions on a criminal case. consequently, no other institutions can correct the implementation of a criminal provision on a criminal case that they’re examining. The Petitioner believes this is highly subject to violations and abuse of authority.
The Petitioner has experienced this issue. He revealed that he reported a case to the Profession and Internal Security Division (Propam) of the Depok City precinct police (Polres), who only examined his report on violation of code of ethics, and disregarded that on the change of articles. He suspected that there had been maladministration in the National Police, where there had been violation of the law and that the police investigators had abused their full authority to determine the felony to be charged to a suspect. He then filed a grievance to Ombudsman on October 7, 2020, which Ombudsman received the next day. However, Ombudsman couldn’t examine it, citing that the Petitioner’s report had been examined by a pretrial institution as referred to in the Ombudsman letter No. B/1075/PV.02.03/9016.2020/XI/2020 dated November 9, 2020.
“Therefore, I request that the Court add a phrase to Article 36 paragraph (1) letter b of the Ombudsman Law to read, ‘The Ombudsman shall reject the Grievance as specified under Article 35 point a in the event: … b. The substance of Grievance is currently under and has become the object of judicial proceedings, except such Grievance is related to maladministration in the process of court examination or is related to the material aspect of a pretrial examination.’ When a citizen file a grievance to the Ombudsman and it is being examined in court, the Ombudsman cannot deny it,” Hendry said from his residence in Depok, West Java.
Justices’ Advice
Constitutional Justice Enny Nurbaningsih advised the Petitioner to observe the structure of a petition—the Court’s authority including new provisions on it, the articles that are the object of the case, the articles in the 1945 Constitution as touchstones, and the Petitioner’s legal standing. She said that he would need to elaborate his constitutional rights that were violated by the enactment of the norm.
“You must elaborate on your constitutional loss [due to the enactment of the norm] in the concrete case [to affirm your] legal standing, so they will be obvious,” she advised.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked that the Petitioner remove his closing, which was irrelevant according to the Constitutional Court Regulation (PMK) No. 2 of 2021. He reminded the Petitioner to read cases No. 46/PUU-XV/2017 and 33/PUU-XVII/2019. “[Hopefully] these decisions can inspire [you] in revising the petition” he said.
Constitutional Justice Suhartoyo asked that the Petitioner affirm his legal standing. “It is imperative that the correlation between the loss and the norm petitioned be included in the legal standing. The Court’s authority and [the Petitioner’s] legal standing are key,” he said.
The Petitioner is to revise the petition by 14 working days and submit it to the Registrar’s Office on Monday, May 24, 2021 before 10:00 WIB.
Writer: Sri Pujianti
Editor: Lulu Anjarsari P.
PR: Tiara Agustina
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 4/27/2021 20:40 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Tuesday, April 27, 2021 | 13:00 WIB 438