Deputy Attorney General for Civil and State Administrative Court Affairs Feri Wibisono testifying virtually at the material judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code, Thursday (6/16/2022). Photo by Humas MK/Ifa.
Thursday, June 16, 2022 | 14:51 WIB
JAKARTA, Public Relations—The provision on indictment as regulated in Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) emphasizes the defendant’s rights to be indicted with an indictment that meets the formal and material requirements, said Deputy Attorney General for Civil and State Administrative Court Affairs Feri Wibisono on behalf of the Attorney General’s Office (AGO) as the Relevant Party at the fourth judicial review hearing of Law No. 8 of 1981 on the KUHAP in the plenary courtroom on Thursday, June 16, 2022. The case No. 28/PUU-XX/2022 was filed by Umar Husni, Director of PT Karya Jaya Satria.
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The Petitioner alleged that the KUHAP determined that a prosecutor may refer a case to the court one time by replacing an old indictment that had been null and void with a new, revised one so that the indictment would meet the requirements set in Article 143 paragraph (2) of the KUHAP. Feri said the argument was inaccurate and legally groundless because the one-time limit to replacing the indictment only referred to one that had not been filed to the court, pursuant to Article 144 paragraphs (1) and (2) of the KUHAP, in that a public prosecutor can revise the indictment before the court schedules the trial.
“The indictment replacement can only be done one seven days before the trial commenced at the most, so it only refers to the replacing of the indictment,” Feri said.
In response, Constitutional Justice Suhartoyo asked the AGO’s response to the Petitioner’s request regarding the filing of the indictment in the a quo article as the Petitioner had received three indictments—one from the District Court of Purwokertwo, two from the High Court of Semarang. Justice Suhartoyo believed the defendant had felt his constitutional rights impaired due to the repeated filing of the indictment.
“In the interest of a person that has been indicted multiple times, although it was conveyed that the second and third [indictment] didn’t result in detention, fundamentally the person is restricted by the status of a suspect or defendant,” Justice Suhartoyo explained.
Feri requested time so that the AGO could write a written response to that question. However, he stated that the Petitioner’s experience was a one-time case and rarely happened to any defendant.
“So, as a result of the differing considerations in the decisions, the first and second prosecutions had different considerations. Meanwhile, it is rare in other cases that [the indictment was filed] twice or three times. Usually, after [the prosecution] revises [the indictment], it can be processed to examine the subject matter of the case. However, in this case, there had not been any examination to the subject matter to determine whether the Petitioner was guilty or not, while there had been real impairment due to the crime based on the investigation and must be resolved,” Feri stressed.
Also read: House: Criminal Procedure Code Does Not Regulate Deadline for Prosecutor’s Indictment
Civil Lawsuit
Feri also conveyed the AGO’s response to the Petitioner’s complaint of the public prosecutor as part of the law enforcement. He asserted that the Petitioner could legally file a civil lawsuit to the prosecutor’s office, pursuant to Article 1365 of the Civil Code in conjunction with Article 163 of the Revised Regulation for Indonesians (Het Herziene Indonesisch Reglement/HIR).
Feri also asked that the Petitioner differentiate between the judicial review of a norm of a law and the issues arising from its implementation. The latter is within the scope of a civil lawsuit or a constitutional complaint in several countries. Thus, based on Article 24C paragraph (1) of the 1945 Constitution, he added, the Constitutional Court has emphasized its authority to examine, adjudicate, and rule on a case to review it against the Constitution (constitutional review). Meanwhile, he said, the 1945 Constitution does not regulate constitutional complaints.
“Because the Petitioner’s petition in essence refers to the failure of a public official to do something, which is a public prosecutor to revise an indictment and not to indict defendants, one of them being the Petitioner, the Attorney General’s Office of the Republic of Indonesia as the Relevant Party appeals to the Constitutional Court who examine, adjudicate, and rule [on the case] to reject the Petitioner’s judicial review petition in its entirety or at least to declare the petition inadmissible,” Feri requested.
Also read: Govt: Implementation of Provisions on Indictment under Judge’s Purview
The Petitioner 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.” In his petition, 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.”
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/17/2022 09:21 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 16, 2022 | 14:51 WIB 316