The virtual material judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code to hear the Government’s testimony, Thursday (6/9/2022). Photo by Humas MK/Ifa.
Thursday, June 9, 2022 | 20:32 WIB
JAKARTA, Public Relations—The Elucidation to Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) stipulates that it is the judge’s jurisdiction to declare a court decision null and void. This provision is not absolute, but it is in place so that any court decision that is repealed is repealed formally with a court ruling based on the legislation.
This statement was made by Lucky Agung Binarto, an expert staff of the Minister of Law and Human Rights, on behalf of the president at the judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) in the plenary courtroom on Thursday, June 9, 2022. The case No. 28/PUU-XX/2022 was filed by Umar Husni, Director of PT Karya Jaya Satria, who asserted that Article 143 paragraph (3) of the KUHAP contradicted 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 implementation of Article 143 paragraph (3) of the KUHAP is the judge’s discretion, where a judge has the authority to rule with a ruling based on examinations that are in accordance with their stance and belief,” he said before the hearing chaired by Chief Justice Anwar Usman.
Also read: Provision on Indictment in Criminal Procedure Code Challenged
The Petitioner had 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.
Lucky said that the Purwokerto District Court and the Semarang High Court had made a ruling to repeal the provision, which had provided protection and fair legal certainty to the Petitioner.
“So, it has been in line with the constitutional protection in Article 1 paragraph (3) of the 1945 Constitution and prioritized due process of law as per Article 28D paragraph (1) of the 1945 Constitution,” he explained.
Lucky further said that Article 197 paragraph (2) of the KUHAP stresses that a ruling that declares something null and void is no more than a verdict, while the investigation report (BAP) remains valid and has legal force, thus cannot be canceled. “Therefore, the examination trials are permanent and have power as the court’s BAP so the prosecutor’s charge and defendant’s defense remain products and events of the trial,” he explained.
Also read: House: Criminal Procedure Code Does Not Regulate Deadline for Prosecutor’s Indictment
Authority and Cooperation
Lucky also explained the positions of judges, prosecutors, and police in their respective jurisdictions while cooperating so that no one’s authority would be infringe upon. In particular, the close and intensive relationship between the police and prosecutors, in which there is an element of coordination, despite their responsibilities cannot be misused, either directly or indirectly, to eliminate the impunity of the judiciary, be it judges, prosecutors, and police in carry out their duties in court.
This, Lucky added, has also been emphasized in the implementation of the KUHAP, prosecutors have a duty to carry out investigations expect for certain criminal offenses, which since the enactment of the KUHAP had been shifted to the police. In the KUHAP, this means the compartmentalization of criminal cases. Investigation and research are under the police’s purview, prosecution is the authority of the prosecutor, and examination in court is the authority of the judge.
In their petition, the Petitioners 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.”
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/10/2022 11:06 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, June 09, 2022 | 20:32 WIB 421