Criminal procedure law expert Muhammad Arif Setiawan taking oath virtually before testifying at the judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code, Thursday (7/21/2022). Photo by Humas MK/Ifa.
Thursday, July 21, 2022 | 15:13 WIB
JAKARTA, Public Relations—The phrase ‘legally invalid’ in Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) is not merely a matter of norm implementation. In legal practice, this can be done by the public prosecutor many times, even up to three prosecutions for the same case as the revised indictment, after previously being declared null and void. This shows that the KUHAP does not clearly define the phrase ‘legally invalid’ for an indictment based on an interlocutory decision.
This statement was made by Muhammad Arif Setiawan, a criminal procedure law expert from the Law Faculty of the Islamic University of Indonesia (FH UII), for the Petitioner of case No. 28/PUU-XX/2022 at the seventh hearing on Thursday, July 21, 2022 in the plenary courtroom.
Arif said the KUHAP clearly allows revising an indictment after the prosecution process is carried out by the public prosecutor even though the trial process has not yet started, as shown in Article 144 paragraph (1), which reads, “A public prosecutor can change an indictment before day for the court session is decided, whether with the aim to improve it or to continue its termination,” as well as paragraph (2), which reads, “A change in the indictment can be made only once at the latest seven days before the trial begins.”
Although Article 144 is not given an elucidation, it does not necessarily result in the loss of the constitutional rights of the parties in criminal cases, Arief said.
“Because Article 144 of the KUHAP allows changing an indictment for two reasons, to improve or perfect it, or to discontinue the prosecution. Likewise, in terms of time and number of revision, it is very clearly stated that revision can only be made no later than seven days before the trial, and can only be made once,” Arif explained before Chief Justice Anwar Usman and the other eight constitutional justices.
Also read:
Provision on Indictment in Criminal Procedure Code Challenged
House: Criminal Procedure Code Does Not Regulate Deadline for Prosecutor’s Indictment
No More Than Once
Arif also said there was a violation of the requirements for sentencing decision in Article 197 paragraphs (1) and (2) of the KUHAP, in that prosecution should no be carried out a second time. It would result in ne bis in idem because the decision is made after the completion of the examination of the subject matter of the case. However, this does not apply to decisions on the same exception that declares an indictment ‘legally invalid’ because the material requirements are not met, as regulated in Article 143 paragraph (2) letter b in conjunction with Article 143 paragraph (3 ) KUHAP with the arguments that the subject matter of the case has not been examined.
“Therefore, the phrase ‘legally invalid’ in Article 143 paragraph (3) of the KUHAP is contrary to Article 28D paragraph (1) of the 1945 Constitution and it is also very reasonable that the Court states legally in its decision that the a quo article does not have binding legal force or at least state that it is contrary to Article 28D paragraph (1) of the 1945 Constitution conditionally by specifying the conditions that must be met so that the phrase ‘legally invalid’ does not conflict with Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia, such as by providing a time limit for the public prosecutor to revise an indictment and the maximum number of re-submission of the prosecution against the defendant in question so that the Petitioner or defendant can get fair legal treatment and legal certainty,” Arif explained.
Also read:
Govt: Implementation of Provisions on Indictment under Judge’s Purview
Attorney General’s Office Says Indictment Defends Defendant’s Rights
Lengthy, Everchanging Legal Process
The Petitioner also presented Ali Rofi as witness to testify to a legal case the Petitioner had experienced since 2015. It was transferred by the investigators to the Prosecutor’s Office at the Purwokerto District Court on February 12, 2020. The investigation took three years. Since the first warrant and the final decision of the Semarang High Court on February 21, 2022, the legal process went on for more than five years. This, he said, reflects unprofessionalism, uncertainty, and lack of sense of justice, and resulted in exhaustion and great loss.
“I myself began to be investigated based on Letter No. PRIN004.DIK/WPJ.32 dated July 23, 2019 almost 3 years after the same process for Mr. Umar Husni. Then Mr. Umar Husni and I took turns attending every summons for examination, pretrial process twice, where the case was finally transferred to the Purwokerto District Court on Wednesday, February 12, 2020. Of course, this case troubled many parties, not just me as a fact witness and especially Mr. Umar Husni, but also other parties around us who have been bothered and troubled by this case, which drained the energy and emotions of all parties,” Rofi said.
Rofi also mentioned a concrete case where his status as the person in charge of the operational activities of PT Karya Jaya Satria was changed in the second indictment to one of the administrators. Then, in the third indictment, his status again was changed to the person in charge of operational activities. He found more changes during the examination of state losses. He questioned this.
“The legal process should uphold objectivity of data and information as well as professionalism. At the time of the interlocutory decision dated March 10, 2020, legal counsel informed us that it was only an interlocutory decision and the prosecutor was still trying to fight back, and our legal status was still waiting for a high court decision on the prosecutor’s resistance. When we received a decision from the Semarang High Court, which rejected the prosecutor’s resistance and upheld the decision of the district court, we were all grateful. We thought once the charges were dropped, there would be nothing more, but it turns out that’s not the case. Long story short, we were tried again as defendants for the second time, even for the third time,” Rofi said.
Also read: Supreme Court: Limitation to Re-filing of Indictment Causes Legal Uncertainty
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 7/25/2022 10:00 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.
Thursday, July 21, 2022 | 15:13 WIB 308