Chief Justice Anwar Usman striking the gavel after reading out the verdict of the judicial review of the Criminal Code and Law No. 39 of 1999 on Human Rights, Thursday (9/30/2021). Photo by Humas MK/Ilham W.M.
Thursday, September 30, 2021 | 14:53 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) rejected the judicial review petition 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 in its entirety in Decision No. 31/PUU-XIX/2021 on Thursday, September 30, 2021 virtually in the plenary courtroom. It was filed by Lee Sang Hyun, a businessman and naturalized citizen.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman alongside the other eight constitutional justices.
In the legal considerations read out by Constitutional Justice Suhartoyo, the Court asserts that Article 76 of the Criminal Code and Article 18 paragraph (5) of Law No. 39 of 1999 contains the ne bis in idem principle that applies universally, including in Indonesia. In the civil law, it is known as res judicata or exceptie van gewijsde zaak, meaning that a case that has been ruled by a court with a decision that is final cannot be filed and adjudicated for the second time. This also means that no legal measure (appeal, cassation, or judicial review) can be taken to change the decision, with a consequence that a defendant cannot be charged for the same case that has been ruled with a decision that is final. However, as long as the decision has not been final, said defendant potentially can be reported and charged again by law enforcers in a different or the same case, although whether it is ne bis in idem will only be obvious after a ruling that is final.
“In relation to the a quo case, according to the evidence and facts in the hearings, without intending to judge and relate it to the concrete case experienced by the Petitioner, the Court has not found any evidence of a court decision that is final (inkracht Van gewijsde) in the Petitioner’s case,” Justice Suhartoyo said.
Based on facts in the hearings and the Petitioner’s testimony in the petition, the case had been ruled by the Bekasi District Court in Decision No. 583/Pid.B/2020/PN.Bks on April 12, 2021, against which cassation is still ongoing.
“Meanwhile, the second case that the Petitioner argued as being the same as case No. 583/Pid.B/2020/PN.Bks is currently ongoing in the Bekasi District Court. as such, there has not been any decision that is final on those two cases,” Justice Suhartoyo said.
Also read: Detained for the Same Case, Naturalized Citizen Challenge Criminal Code
Providing Legal Protection and Certainty
Justice Suhartoyo further explained that Article 28D paragraph (1) of the 1945 Constitution guarantees the right to fair recognition, guarantee, protection, legal certainty, and equality before the law, which are also contained in Article 76 of the Criminal Code and Article 18 paragraph (5) of Law No. 39 of 1999.
The phrases “with a decision that has become final” in Article 76 of the Criminal Code and “if the decision becomes final” in Article 18 paragraph (5) of Law No. 39 of 1999 actually provide any defendant legal protection and certainty not to be charged for the second time on the same allegation of crime that is tempus delicti, locus delicti because there has been a decision that is final and cannot be changed through any legal avenue.
“If the Court accepted the Petitioner’s argument by declaring the phrases ‘with a decision that has become final’ in Article 76 paragraph (1) and ‘if the decision becomes final’ in Article 76 paragraph (2) of the Criminal Code, as well as ‘a court decision that is final’ in Article 18 paragraph (5) of Law No. 39 of 1999 in violation of Article 28D paragraph (1) of the 1945 Constitution, it would lead to legal uncertainty to defendants because when the case has been ruled and the decision is declared final, if the defendant is then reported, suspected, and charged with tempus delicti, locus delicti with the same criminal offense, it would be a clear violation of the constitutional rights as guaranteed by Article 28D paragraph (1) of the 1945 Constitution,” Justice Suhartoyo.
As such, what the Petitioner experienced, the Court asserts, is not the issue of the constitutionality of those three norms. Such a thing could have happened due to an issue in their implementation.
Not Constitutionality Issue
In its considerations, Justice Suhartoyo added, the Court asserts that it was irrelevant to respond to the Petitioner’s argument that the charging of the Petitioner for the second time with the same offense tempus delicti or locus delicti by law enforcement officials violated Article 28D paragraph (1) of the 1945 Constitution.
The Court also asserts that the Petitioner’s argument that the a quo phrases had allowed investigators to “break up” the articles to report him violated Article 63 paragraph (1), Article 64 paragraph (1), and Article 65 paragraph (1) of the Criminal Code does not correlate with the constitutionality of the three phrases in question. This is because if the Petitioner’s assumption was valid, it would not be under the Court’s jurisdiction and can be petitioned separately as long as there is prove of their contradiction and the Petitioner can argue their conflict with the 1945 Constitution.
Based on the abovementioned considerations, the Court asserts that those three articles have not led to legal uncertainty in the enforcement of the law and, thus, does not conflict with Article 28D paragraph (1) of the 1945 Constitution as the Petitioner argued. Therefore, the Petitioner’s entire petition was legally unfounded.
Also read: Naturalized Citizen Revises Petition on 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 is final” from the criminal justice system.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/1/2021 15:26 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, September 30, 2021 | 14:53 WIB 165