The preliminary hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code, Tuesday (5/24/2022). Photo by Humas MK/Panji.
Tuesday, May 24, 2022 | 14:11 WIB
JAKARTA, Public Relations—The preliminary hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) was held by the Constitutional Court (MK) on Tuesday, May 24, 2022. The case No. 61/PUU-XX/2022was filed by Octolin H. Hutagalung and 11 other petitioners.
The twelve advocates challenge Article 54 of the KUHAP, which reads, “In the interest of defense, a suspect or defendant shall have the right to legal assistance from one or more legal advisers during the period and at every level of examination, according to the procedure determined by this law.”
The Petitioners, represented by legal counsel Janses E. Sihaloho, conveyed the subjects of the petition virtually. They believe that in a criminal case, advocates are often hired to assist someone who reports a crime, the reported, a witness, a suspect, or a defendant.
“However, the rights of an advocate to perform their profession are often restricted by law enforcement officers due to differing interpretations of Article 54 of the KUHAP, including within the law enforcement itself,” Sihaloho said before the panel chaired by Constitutional Justice Suhartoyo.
The Petitioners believe that the enactment of Article 54 of the KUHAP has led to legal uncertainty for advocates in performing their profession since there are no provisions in the KUHAP that regulates the rights of a witness or a person of interest to legal aid and assistance from a legal counsel in offering testimony before investigators in the police, the prosecutor’s office, or the KPK (Corruption Eradication Commission).
They alleged that in pretrial investigation/research stage, a witness may help determine whether a crime has occurred. The purpose of an investigation is to collect a body of evidence to ensure several things, among other things, to determine whether the act being investigated constitutes a crime, who committed it, and whether the act has met the conditions of a crime, etc.
However, in practice, investigators often bar legal counsels from providing assistance to their clients and allow them only to passively participate in the examination. Any comments or inputs from the legal counsel to their client, who acts as a witness, are often returned with warning or request that the counsel leave the examination room.
Therefore, in the petitum, the Petitioners requested that the Court declare Article 54 of the KUHAP conditionally constitutional insofar as it be interpreted to include the witness and the person of interest.
Justices’ Advice
In response to the Petitioners’ arguments, Constitutional Justice Arief Hidayat highlighted that they mentioned the material judicial review of the interpretation to the KUHAP in the Constitutional Court’s authority. “The material judicial review of an interpretation is not known in Article 24C of the 1945 Constitution and the latest Constitutional Court Law. Only formal or material judicial review are,” he said.
He also requested that the Petitioners explain the contradiction between the norm being petitioned and the Constitution. “The 1945 Constitution is the touchstones to gauge whether Article 54 of the KUHAP is against Article 28 of the 1945 Constitution or not. It must be understood. Then, to be granted legal standing, are the Petitioners suspects or defendants? Only suspects or defendants have the legal standing to file the petition. Advocates could be granted legal standing only if they are suspects or defendants themselves. Therefore, it must be elaborated clearly whether the Petitioners have legal standing [in the case] or not,” he stressed.
Then, Constitutional Justice Daniel Yusmic P. Foekh commented that the petition was verbose. He also advised them to study the format of a judicial review petition in Article 10 of the Constitutional Court Regulation (PMK) No. 2 of 2021 on Procedural Law for Judicial Review Cases—starting from the petitioner’s profile until the petitum.
Meanwhile, Constitutional Justice Suhartoyo said that the petition was too long, as it attached the Law and power of attorney. “Litigating in the Constitutional Court is the same as doing so in other courts. It shall be simple, swift, and economical. Therefore, the Petitioners could simplify the petition following the Constitutional Court Regulation,” he stressed.
The panel gave the Petitioners 14 weekdays to revise the petition and submit it by Monday, June 6.
Writer : Nano Tresna A.
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 5/25/2022 09:00 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.
Tuesday, May 24, 2022 | 14:11 WIB 449