Rocky Marbun and Margarito Kamis testifying as experts for the Petitioner of case No. 28/PUU-XX/2022 virtually at the material judicial review hearing of the Criminal Procedure Code, Monday (7/4/2022). Photo by Humas MK/Ifa.
Monday, July 4, 2022 | 20:25 WIB
JAKARTA, Public Relations—There will be legal uncertainty if the re-filing of an indictment that has been declared legally invalid pursuant to Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) is limited because the court decision that declares it “legally invalid” only examines the formal requirements, but not the subject matter. This statement was made by Mustamin on behalf of the Supreme Court (MA) as the Relevant Party at the sixth hearing for case No. 28/PUU-XX/2022 on Monday, July 4, 2022, where the litigants appeared before the court virtually.
“The Supreme Court is of the opinion that if the re-filing of an indictment which has been declared null and void as stipulated in Article 143 paragraph (3) of the KUHAP is limited, it can create legal uncertainty in handling a case because the decision which declares [an indictment] ‘null and void’ only assesses the formal requirements and has not examined the subject matter of the case,” he said before the hearing chaired by Chief Justice Anwar Usman.
The statement was made in response to the Petitioner’s claim that the lack of interpretation of the a quo article would mean that in revising the indictment, the public prosecutor cannot return the case to investigation. In addition, the Petitioner alleged that the public prosecutor can re-file revisions to an indictment that has been declared null and void indefinitely, leading to the case dragging on without any clear resolution and, thus, to legal uncertainty.
In addition, the Supreme Court refuted the Petitioner’s allegation that in the event that an indictment is declared null and void, the dossier will be returned to the investigator with revision limited to only one time in a new investigation. Mustamin relayed the Supreme Court’s opinion that the provision of Article 143 paragraph (3) of the KUHAP only stipulates that when an indictment is null and void, the dossier will not, mutatis mutandis, be invalid. In addition, he added, an investigation into the suspect with the issuance of a notice of commencement of investigation (SPDP), the investigator and the public prosecutor coordinate until the case is declared complete or P21.
“When the dossier is declared complete or P21 by the public prosecutor, the investigator’s authority is finished and is turned over to the public prosecutor. Thus, when any dossier that has been declared complete is re-investigated, it will cause legal uncertainty,” Mustamin explained virtually.
Also read: Provision on Indictment in Criminal Procedure Code Challenged
Indefinitely
Meanwhile, in response to the Petitioner’s argument that there are no restrictions for re-filing an indictment that has been declared null and void as stipulated in Article 143 paragraph (3) of the KUHAP meaning the public prosecutor can return the dossier to the investigator indefinitely before the dossier is declared complete by the public prosecutor pursuant to Article 138 of the KUHAP, the Supreme Court asserted that the restriction will result the case and its resolution dragging out. Thus, the length of time for which the public prosecutor re-file an indictment that is “null and void” is at the prosecutor’s discretion based on the principle dominus litis as long as the case does not exceed the expiration date for prosecution as regulated in Articles 78 and 79 of the Criminal Code (KUHP).
“Therefore, the Supreme Court concludes that Article 143 paragraph (3) of the KUHAP does not restrict the public prosecutor in requesting revisions to an indictment as long as it does not exceed the expiration date of the prosecution,” Mustamin explained.
Also read: Petitioner of Provision on Indictment in Criminal Procedure Code Strengthens Arguments
Through Court
Constitutional law expert Margarito Kamis, who the Petitioner presented, had a different opinion. He said that he had not found any provisions that stipulated that a chief judge was authorized to return an indictment for not being complete and clear. He asserted that the court must carry out the trial to examine the case nonetheless.
“The examination is the court’s only way, be it thanks to the defendant and/or their attorney through their exception, to find any material inaccuracy, ambiguity, and incompleteness of the indictment. No other way is available,” he said. he reasoned that an indictment must be declared null and void by a court. The invalidity of an indictment requires a positive judicial action in a court ruling.
“The problem is whether after a verdict that declares the indictment null and void the public prosecutor can still indict again for a second or third time? That is the real and biggest constitutional issue in this case—the obscurity of the status of null and void. The problem is, is it logical to say “null and void” only limited to an indictment as a fact?” he asked.
Also read: House: Criminal Procedure Code Does Not Regulate Deadline for Prosecutor’s Indictment
Practical Interpretation
In response to Margarito’s statement, Constitutional Justice Suhartoyo requested him to clarify his statement because the justice believed he interpreted “null and void” practically, meaning that the defendant’s act was declared nonexistent and that the case cannot be re-filed.
“Mr. Margarito’s statement is very bold. So, the [criminal] act is considered nonexistent, [so what is there] to re-file. This is my interpretation of your conclusion. So, what if there are rights that must be protected? If through only one indictment that is declared null and void by a judge then the act is deemed nonexistent (ex nunc, ex tunc), there may still be a chance to re-file it. However, if the act is declared nonexistent, Sir, I believe this needs to be explained at this hearing; is it not dangerous, Mr. Margarito?” he asked.
Margarito responded by asserting that Article 143 paragraph (3) of the KUHAP did not qualify as a norm as it was interpreted differently by different people according to their point of views and interests.
“All those subjective things were cut down to become objective so that the Court and I, other people and I, and everyone else see things in one way and one view with one intention, unlike today. A judge said this, a judge said that, the prosecutor said this, the government said that. That’s why once again, this norm for me does not qualify as a legal norm, it is not objective enough because it allows people to interpret it in more than one way. There is even no rigid understanding. That’s why it needs to be interpreted, it needs to be given a concrete form; what exactly is this thing? So that everyone has certainty. And thus, it will qualify as guidelines, a reference, a compass, a controller, a pointer. Currently, it doesn’t meet that requirement,” he answered.
Also read: Govt: Implementation of Provisions on Indictment under Judge’s Purview
Legitimacy of Authorities
Meanwhile, Rocky Marbun said the meaning of the concept of “indictment by law” has been reduced into the opposite of the original. In the reduction process, it gains legitimacy and justification linguistically the authorities. In Indonesia, this is reflected in the act of submitting to the civil law system, so that the reduction dialectic is no longer based on speech acts, as it will always be in the form of written communication, that is, the Circular Letter of the Deputy Attorney General for General Crimes and the Regulation of the Deputy Attorney General on Administrative and Technical Governance of Special Crime Cases, which hide behind the principle of functional differentiation. As a result, Marbun added, the Prosecution Office did an epistemological error by determining the impact of the interlocutory decision in a ruling that stated “the indictment is null and void” was the same as “the indictment is inadmissible,” which can be corrected by the public prosecutor and transferred back to the district court. The cause of the emergence of epistemological errors as truth games, Marbun asserted, was due to ethical problems through interpretation of existing concepts and in the end became misguided thinking.
“Therefore, the interpretation of legal invalidity cannot be left to the institution with interest because its trinity of power will be controlled by its interference and interest to act as a superior binary opposition, which will lead to uncertainty and injustice,” Marbun explained.
Also read: Attorney General’s Office Says Indictment Defends Defendant’s Rights
The Petitioner of case No. 28/PUU-XX/2022, Umar Husni, Director of PT Karya Jaya Satria, asserted that Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) was in violation of 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 7/6/2022 08:18 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.
Monday, July 04, 2022 | 20:25 WIB 307