Constitutional Justices Manahan M. P. Sitompul (front), Suhartoyo (center), and Daniel Yusmic P. Foekh (back) examining the judicial review petition of the Criminal Code and the Human Rights Law, Thursday (22/07/2021). Photo by Humas MK/Ilham W. M.
Thursday, July 22, 2021 | 20:56 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of Article 76 paragraphs (1) and (2) of the Criminal Code (KUHP) and Article 18 paragraph (5) of Law No. 39 of 1999 on Human Rights on Thursday afternoon, July 22, 2021 virtually. Naturalized Indonesian citizen Lee Sang Hyun, originating from South Korea, is the Petitioner of the case No. 31/PUU-XIX/2021.
Before the panel chaired by Constitutional Justice Suhartoyo, attorney Sunggul Hamonangan Sirait said the Petitioner, a businessman in Indonesia, had received unfair legal treatment and been denied legal certainty. The issue started with a dispute he had with business partner Yos Soetanto Theosabrata over the management of PT Eles Jaya Abadi. The Petitioner was reported to National Police’s Criminal Investigation Department (Bareskrim) on an allegation of letter forgery and/or scam/fraud and/or embezzlement in office and/or money laundering, as referred to Article 263 and/or 378 and/or 374 of the Criminal Code and/or Articles 3, 4, 5, and 6 of Law No. 8 of 2010 on the Prevention and Eradication of the Criminal Acts of Money Laundering.
“The Petitioner as an Indonesian citizen […] had been suspected twice, indicted and charged twice, imprisoned/detained twice, and tried twice on the basis of the same police report by the same plaintiff with the same tempus [and] locus delicti. Of course [he] have concerns because [he] could potentially be treated similarly—be suspected, indicted and charged, detained, and tried—numerous times according to the investigators or public prosecutors’ whim,” Sirait said.
He added that there was no certainty in the enforcement of the law as regulated in the Criminal Code and the Human Rights Law due to the shift of values regarding the ne bis in idem principle as regulated in Article 76 paragraphs (1) and (2) of the Criminal Code as well as Article 18 paragraph (5) of the Human Rights Law. He further explained that ne bis in idem is a basic principle in the criminal justice systems in countries that adopt the continental Europe system. Meanwhile, in countries that adopt the common law, there is double jeopardy, in which a person cannot be charged twice for the same crime.
“In law enforcement, the government should not talk about the same criminal incident continuously, leading to a number of decisions on a criminal incident that will reduce the people’s trust in the government. The enactment of Article 76 paragraphs (1) and (2) of the Criminal Code as well as Article 18 paragraph (5) of the Human Rights Law do not protect citizens who are made the reported, suspects, and defendants because the articles of those laws make it possible for those in power—such as investigators, public prosecutors, and judges—to investigate, charge and indict, detain and extend detainment, and try [a person] multiple times based on the same act and the same locus delicti based on the whims of the public prosecutors and judges on the grounds that there is no judge’s decision that has permanent legal force(inkracht van gewisdje),” Sirait explained.
In the petitum, the Petitioner requested that the Court declare Article 76 paragraphs (1) and (2) of the Criminal Code as well as Article 18 paragraph (5) of the Human Rights Law in violation of Article 28D paragraph (1) of the 1945 Constitution. In addition, he requested that the Court declare it necessary to consider removing the phrase “decision that becomes permanent” or “a court decision that has permanent legal force” from the criminal justice system.
“[The Petitioner] requests that there be very strict restrictions on the validity of the articles in question so as not to be interpreted and enforced following the whims of the investigators so that the articles do not violate or contradict human rights guaranteed in the 1945 Constitution, and that legal certainty [is guaranteed] for everyone, especially the Petitioner, who is dealing with law,” Sirait said.
Justices’ Advice
In response, Constitutional Justice Manahan M. P. Sitompul advised that the Petitioner revise his legal standing. “It is not clear whether [the Petitioner] is an individual, a legal entity, or individuals with common interest,” he said. He also highlighted the fact that the Petitioner didn’t elaborate on the unconstitutionality of the norms.
Meanwhile, Constitutional Justice Suhartoyo (panel chair) asked the Petitioner to reconsider his argument on the constitutionality or implementation of the norm. He believes the Petitioner only detailed potential impairment. Not to mention, there is not any decision with permanent legal force yet on the concrete case.
“Please review the backgrounds to the petition in the posita, whether it concerns actual or potential loss. If potential, for example you have been detained twice, elaborate that [the norms] could be misused. However, does the issue lie with the norm? You must convince the Court, as [Justice] Manahan expressed earlier,” he advised.
Lastly, Constitutional Justice Daniel Yusmic P. Foekh highlighted the Petitioner’s citizenship. The attorney, he said, must ensure that the Petitioner’s naturalization is legitimate, in order to meet the legal standing requirement.
“It is not important how many years. Please attach it, whether the naturalization process followed the procedure or not. We would like to know. Please include it to reinforce the legal standing,” he said.
Before concluding the hearing, Justice Suhartoyo reminded the Petitioner to revise the petition within 14 working days after the hearing and submit it to the Registrar’s Office by Wednesday, August 4, 2021.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/23/2021 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.
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Thursday, July 22, 2021 | 20:56 WIB 303