Advocate Challenges Prosecution’s Investigative Authority

One of the Petitioner’s legal counsels, Imelda, at the preliminary hearing of the judicial review of the Prosecution Office, Wednesday (3/29/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — On Wednesday, March 29, 2023, the Constitutional Court (MK) held a preliminary hearing of the judicial review of three laws: Article 30 paragraph (1) letter d of Law No. 16 of 2004 on the Prosecution Office; Article 39 of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption; as well as Article 44 paragraphs (4) and (5) on the phrase “or the Prosecution Office,” Article 50 paragraphs (1), (2), and (3) on the phrase “or the Prosecution Office,” and Article 50 paragraph (4) on the phrase “and/or the Prosecution Office” of Law No. 30 of 2002 on the Corruption Eradication Commission. The petition No, 28/PUU-XXI/2023 was filed by M. Jasin Jamaluddin, an advocate.

Through legal counsels Imelda, Reza Setiawan, and Putra Simatupang, he argued that the articles were in violation of Article 28D paragraph (1) of the 1945 Constitution. Simatupang explained that the granting of investigative authority on certain offenses to the Prosecution has led it to become a superpower. In addition to prosecution, it can also investigate.

The authority, which was granted by Article 30 paragraph (1) letter d of the Prosecution Law, has enabled the Prosecution to conduct investigation arbitrarily. In addition, since pre-prosecution over investigations carried out by prosecutors is also carried out by prosecutors, so there is no control over investigations carried out by prosecutors by other institutions. In the absence of such control, prosecutors often ignore requests for the rights of suspects, such as requests for the examination of witnesses/experts for suspects to shed light on a case.

If the request is ignored by the prosecutor as an investigator and submitted by the pre-prosecution prosecutor who is clearly within the same institution as the investigator, it will be ignored by the pre-prosecution prosecutor due to lack of external supervision that ensures the investigation process runs well and reflects justice for justice seekers. In this case, as an attorney of a suspect investigated by the prosecutor, the Petitioner has become a victim of the prosecutor’s arbitrariness as the investigator.

Simatupang revealed that on February 21, 2023, a prosecutor declared the Petitioner’s client’s dossier incomplete and that a follow-up investigation would be carried out. However, despite the investigating prosecutor not having carried out that investigation, on February 23, the pre-prosecution prosecutor declared the dossier complete and transferred it to the public prosecutor. During the investigation, the Petitioner’s client asked that his witnesses and experts be examined to shed light on the case. however, the investigator and pre-prosecution prosecutor ignored the request.

Therefore, in the petitum, the Petitioner requested that the Court declare all the petitioned articles in violation of Article 28D paragraph (1) of the 1945 Constitution.

Justices’ Advice

Constitutional Justice Daniel Yusmic P. Foekh recommended that the legal standing be elaborated in more detail if the Petitioner had had a concrete case on the phrases being petitioned, so that the justices be convinced that the enactment of the norms had harmed the Petitioner. He also advised the Petitioner to explain the correlation between the touchstone and the petitioned articles.

“In addition, the Petitioner has not explained the original intent of the laws being petitioned, or at least the legal politics. Do explain those three norms, as every law has characteristics. Elaborate on the original intent,” he said.

Next, Constitutional Justice M. Guntur Hamzah asked the Petitioner to elaborate his legal standing by explaining the relations between his profession as an advocate and law enforcement officer and the issues related to the articles.

Meanwhile, Constitutional Justice Suhartoyo requested that the Petitioner strengthen his argument on the actual and potential constitutional impairment. Before adjourning the session, he informed the Petitioner that he was to submit the revised petition by Tuesday, April 11 at 13:00 WIB.

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Raisa Ayudhita
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.

Wednesday, March 29, 2023 | 17:47 WIB 269