Deputy Chief Justice Saldi Isra giving advice for revision at the judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code, Tuesday (3/28/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The provisions on pretrial in Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) has been challenged materially in the Constitutional Court (MK). Advocate M. Yasir Djamaludin filed the petition No. 27/PUU-XXI/2023 to challenge Article 82 paragraph (1) letter d of the KUHAP. The preliminary hearing took place on Tuesday, March 28, 2023 in the plenary courtroom.

Legal counsel Imelda said at the hearing that the Petitioner asserted that Article 82 paragraph (1) letter d of the KUHAP had violated his constitutional rights. He had performed his professional responsibilities by providing legal assistance, for instance, in a pretrial motion No. 1/Pid.Pra/2023/PN.Jap dated February 24, 2023 in the District Court of Jayapura, which had been declared null and void since it had been transferred to the District Court of Jayapura as the criminal cases No. 2/Pid.Sus-TPK/2023/PN.Jap and No. 3/Pid.SusTPK/2023/PN.Jap, both dated March 1, 2023.

“However, the Petitioner suffered constitutional impairment since the pretrial motion was not processed by the District Court of Jayapura. There has been no examination and decision of the pretrial case. Instead, it was declared null and void since the dossier has been transferred and the case has been investigated by the District Court of Jayapura,” Imelda explained before Constitutional Justices Manahan M. P. Sitompul (panel chair), Saldi Isra, and Enny Nurbaningsih.

The Petitioner asserted that Article 82 paragraph (1) letter d of the KUHAP had led to legal uncertainty for the advocate in performing their profession due to the lack of emphasis on the interpretation of the phrase “the motion is null and void.” Therefore, pretrial motions were not examined while the dossier has been transferred and the case examined by the district court. Thus, the motion was declared null and void.

“This has caused legal uncertainty since the pretrial motion or process must be completed first before or after the dossier is transferred to the district court to be examined, for the sake of legal certainty. Then, the district court must delay the examination on the subject of the case so that the ongoing pretrial motion or process can be ruled first,” Imelda stressed.

Next, legal counsel Reza Setiawan said the nullification of the pretrial motion was a violation of the Petitioner’s constitutional rights and human rights as an advocate and the legal counsel of the defendant/petitioner of the pretrial. Thus, when any pretrial motion is nullified because it is not examined and the dossier is transferred to be examined by the court, it means the article a quo has not provided protection of or fulfilled the Petitioner’s human rights as referred to in Article 28I paragraph (4) of the 1945 Constitution.

“Therefore, based on the aforementioned elaboration, the Petitioner requests that the Court declare Article 82 paragraph (1) letter d along the phrase “the motion shall be dropped” in Law No. 8 of 1981 on the Criminal Procedure Code of the 1945 Constitution and not legally binding if not interpreted as ‘the pretrial motion shall continue until the issuance of a decision by delaying examination of the subject matter,’” said Putra Rezeki Simatupang while reading out the petitum.

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih advised the Petitioner to observe the Constitutional Court Regulation (PMK) No. 2 of 2021 on judicial review. “Please review again PMK No. 2 of 2021. [The petition] mentioned the old PMK. Please study the format of the petition, which is actually very simple. Detail all according to the format: the subject, the Constitutional Court’s authority, the [Petitioner’s] legal standing, the posita or background of the petition, and the petitum. Other things should be included in those parts,” she explained.

Next, Deputy Chief Justice Saldi Isra said that the Court could not examine and rule concrete cases, so the Petitioner was to elaborate the background of the petition so that the Court could change its stance in previous decisions.

“We do not adjudicate concrete cases but norms, in this case, the norm in Article 82 paragraph (1) of the KUHAP. It has been ruled by the Constitutional Court. If we must adjudicate, you should give us strong reasons for us to change our stance. This is lacking from the petition. So, my advice is, read the four previous decisions. If you think that [they] accommodated [your request] and what happened to you in the concrete case is a matter of implementation, you might have a different stance in this case,” he emphasized.

Before adjourning the session, Constitutional Justice Manahan M. P. Sitompul informed the Petitioner that he had 14 workdays to revise the petition and submit it by Monday, April 10 at 13:00 WIB. 

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

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.

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