Constitutional Justice Suhartoyo opened the preliminary hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code alongside Constitutional Justices Daniel Yusmic P. Foekh and Saldi Isra, Thursday (3/17/2022). Photo by Humas MK/Ifa.

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Thursday, March 17, 2022 | 13:54 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) in the panel courtroom on Thursday, March 17, 2022. The case No. 28/PUU-XX/2022 was filed by Umar Husni, Director of PT Karya Jaya Satria.

Wahyu Budi Wibowo, one of the Petitioner’s legal counsels, asserted that Article 143 paragraph (3) of the KUHAP contradicts Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. Article 143 paragraph (3) of the KUHAP reads, “An indictment that does not meet the provision as intended in paragraph (2) letter b shall be legally invalid.”

The Petitioner received indictments that had been declared legally invalid in a criminal case on taxation. He received three indictments, one from the District Court of Purwokertwo, two from the High Court of Semarang. He believes he could one day receive the fourth, fifth indictments and so on without any clear limits on the revision of indictments that are declared legally invalid by a court. However, Wahyu added, the issue in this concrete case is that those invalid indictments could then be revised by the public prosecutor or be returned to an investigation.

“Reflecting on the criminal case process with the three previous indictments, we believe it shows that the public prosecutor is deadlocked in making improvements. The impasse must be broken or can only be resolved if the investigation process is restarted and a comprehensive case file is organized and compiled so that the indictment is not declared legally invalid this time,” he said before Constitutional Justices Suhartoyo (panel chair), Saldi Isra, and Daniel Yusmic P. Foekh.

The Petitioner also believes the a quo law has been interpreted to mean that there has not been any limitation for the public prosecutor in revising and bringing the indictment that has been declared null and void. They could also contest the court’s decision, following Article 156 paragraph (3) of the KUHAP. That way, swift, simple, and cost-effective trial process did not happen and the Petitioner has not obtained legal certainty.

“The lack of limitation in the revision of indictment could impair the sense of justice and legal certainty because the public prosecutor could file an indictment for the fourth time and there could be a counter for the fourth time,” Wahyu said.

Therefore, the Petitioner requested that the Court declare the phrase “legally invalid” in Article 143 paragraph (3) of the KUHAP conditionally unconstitutional and not legally binding insofar as not be interpreted “the case be returned to the investigator with revision limited to only 1 (one) time.”

Legal Standing

Constitutional Justice Saldi Isra advised the Petitioner to review and simplify the argument of legal standing. He said that the constitutional impairment and touchstones in the Constitution that it was based on had not been explained well. Simplification would be necessary to affirm the Petitioner legal standing in the case.

“Next, on the elaboration of [how] the norm contradicts the 1945 Constitution can be included in the background of the petition, starting from the philosophical explanation to the comparison. The petition mentions many ideas from experts. There must be philosophical references and, if necessary, the transcript of the discussion of the formation of the norm being reviewed,” he explained.

Then, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to add the Constitutional Court Regulation (PMK) No. 2 of 2021, on which the petition revision could be based on. The Petitioner, he said, should also note the background of the petition, which detailed experts’ opinions, and provide comparisons that would convince the justices on the argument.

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

Translation uploaded on 3/18/2022 09:08 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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