The Petitioner’s legal counsel, Alvin Lim, reading out the merit of the petition virtually at the preliminary hearing of Law No. 8 of 1981 on the Criminal Procedure Code, Thursday (10/21/2021). Photo by Humas MK/Ifa.

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Thursday, October 21, 2021 |1 6:31 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held a preliminary hearing for the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Thursday, October 21, 2021. The petition No. 53/PUU-XIX/2021 was filed by Anita Natalia Manafe, who challenges Article 77 letter a of the KUHAP, which reads, “A court of first instance has the authority to examine and decide, in line with the provisions contained in this law: a. whether or not an arrest, detention, termination of an examination or prosecution is valid.”

Represented by legal counsels Alvin Lim and colleagues, the Petitioner asserted her constitutional loss due to the provision of Article 77 letter a of the KUHAP in relation to the authority of the district court (Pengadilan Negeri) to conduct a pretrial. She was disadvantaged by the termination of investigation by investigators based on the Notification of the Investigation No. B/2817/VIII/RES.1.11/2021/Ditreskrimum in the police report No. LP/1860/IV/YAN2.5/2021/SPKT PMJ dated April 7, 2021 as the a quo article doesn’t mention the district court’s authority to examine and terminate an investigation by investigators in a pretrial.

“In the a quo article, the district court is only authorized to examine and terminate an investigation, but it doesn’t mention the district court’s authority to examine and terminate an investigation as evidenced by an investigation termination warrant,” Lim said to the justice panel led by Constitutional Justice Manahan M. P. Sitompul.

Based on Article 77 letter a of the KUHAP, the district court is only authorized to examine and decide on an SP3 (investigation termination warrant). However, it doesn’t mention the district court’s authority to examine and decide on an SP2 Lid (investigation termination warrant). This provision has violated the Petitioner’s constitutional rights as a request for pretrial can be filed in an investigation to check whether there is a formal violation. However, amid a police investigation, a request for pretrial cannot be filed to the district court, so there is no fair legal certainty in the event that a formal mistake occur during a police investigation, as the Petitioner had experienced.

The Petitioner filed an objection to an investigation termination warrant due to alleged formal violation, one of which being the Greater Jakarta Metropolitan Regional Police (Polda Metro Jaya) investigators rejecting to examine the Petitioner’s key witness. Therefore, the Petitioner feels that the Police investigators were acting arbitrarily when they actually have a duty to find out whether a criminal element has occurred and an investigation is to be carried out.

Justices’ Advice

In response to the petition, Constitutional Justice Arief Hidayat highlighted the legal counsels. “In terms of the orthography for the legal counsels’ academic titles, please pay attention to the government regulation on the orthography for academic titles. There is also a regulation by the Minister of Education and Culture on [it]. Non-official titles cannot be used in a petition,” he said.

In relation to the Petitioner’s legal standing, he asked that the Petitioner’s constitutional loss be elaborated. “Please elaborate the Petitioner’s loss, whether it was caused by Article 77 letter a of Law No. 8 of 1981,” he said. He also requested that the Petitioner’s concrete case be elaborated.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to take into account the Constitutional Court Regulation (PMK) No. 2 of 2021 and the orthography for legal terms, for example, articles are capitalized and terms in foreign languages be italicized.

Next, Constitutional Justice Manahan M. P. Sitompul observed that only 11 of the Petitioner’s legal counsels signed the power of attorney, when there were 28. “Please review this,” he said to the legal counsels, who appeared before the Court virtually. He also advised that the Petitioner study the petition format through the latest PMK No. 2 of 2021.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/22/2021 14:28 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.

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