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The counsel of Petitioner Lee Yang Hun conveying the revisions to the petition at the judicial review hearing of the Criminal Code and the Human Rights Law, Wednesday (4/8/2021). Photo by Humas MK.

Wednesday, August 4, 2021 | 18:30 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review 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 virtually on Wednesday afternoon, August 4, 2021. The case No. 31/PUU-XIX/2021 was filed by Lee Sang Hyun, a businessman.

At the petition revision hearing chaired by Constitutional Justice Suhartoyo, counsel Sunggul Hamonangan Sirait conveyed 10 points of the revision. First, the petition has been adjusted to follow the Constitutional Court Regulation (PMK) No. 2 of 2021 on the Constitutional Court’s authority, legal standing, arguments of the petition, and the things that the Petitioner requests.

“The legal bases for the Court’s authority [have been explained to be] Article 24C of the 1945 Constitution, Article 10 paragraph (1) of Law No. 24 of 2003 on the Constitutional Court, Article 29 paragraph (1) letter a of Law No. 48 of 2009 on Judicial Power, Article 9 paragraph (1) of Law No. 12 of 2011 on Lawmaking as amended by Law No. 15 of 2019,” Sirait explained.

He also said that the Petitioner had elaborated on his legal standing following Article 51 paragraph (1) of Law No. 24 of 2003 on the Constitutional Court and Article 4 paragraph (2) letters a-i of PMK No. 2 of 2021.

The Petitioner has elaborated on his actual and potential constitutional impairment and on two similar legal cases on locus delicti-locus delicti that he has been involved in at the Bekasi District Court. “The Petitioner also elaborates on the restrictions to the application of the principle ne bis in idem,” Sirait said.

Also read: Detained for the Same Case, Naturalized Citizen Challenge Criminal Code

At the preliminary hearing, the Petitioner’s counsel explained that the Petitioner is a naturalized Indonesian citizen who has been doing business in Indonesia. However, he has received unfair legal treatment and been denied legal certainty. He has 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. This, he believes, could potentially lead to a similar treatment—be suspected, indicted and charged, detained, and tried numerous times according to the investigators or public prosecutors’ whim.

The Petitioner argued 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.

Therefore, in the petitum, he 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.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/4/2021 23:50 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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