Constitutional Justices Manahan M. P. Sitompul, Daniel Yusmic P. Foekh, and M. Guntur Hamzah opening the panel preliminary hearing of the material judicial review of Law No. 8 of 1981 on Criminal Procedure Code, Monday (4/10/2023). Photo by MKRI/Ifa.

---

JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Monday, April 10, 2023 in the plenary courtroom. The petition No. 33/PUU-XXI/2023 was filed by two entrepreneurs from Garut Regency, West Java Province, Asep Muhidin and Rahadian Pratama.

The Petitioners challenge Article 80 of he KUHAP, which reads, “The request for an examination whether or not the termination of an examination or prosecution is legal can be submitted by the investigator or public prosecutor or a third interested party to the chairman of the court of first instance by mentioning the reason.”

The Petitioners, who attended the hearing virtually, explained that they had filed a pretrial motion three times, whose conclusions rejected the motion because the Prosecution Office had not conducted any examination in responding to public complaints so the judges deemed the motion premature.

“The Petitioners have been constitutionally harmed due to the absence of legal certainty from the Prosecution Office on public complaints that were not immediately followed up on with a series of examination according to the standard operating procedure (SOP),” Asep said before Constitutional Justices Manahan M. P. Sitompul, Daniel Yusmic P. Foekh, and M. Guntur Hamzah.

He requested that the Prosecution Office of Garut take a legal action in line with its main duty to respond to public complaints. The lack of follow-up and notification to the Petitioners had harmed the Petitioners, who had to ask for information to the High Prosecution Office.

“So, the Petitioners’ right to legal certainty from law enforcement institutions as Indonesian citizens is not guaranteed,” he asserted.

Asep explained that criminal acts of corruption led to widespread losses. The victims are all citizens. Thus, there must be control over the law enforcement process by the Prosecution Office regarding reports of criminal acts of corruption by the citizens.

“Therefore, all losses resulting from the lack of legal certainty on the duration of the response to public complaints on criminal acts of corruption are incurred by all citizens of Indonesia, especially that complainants cannot file a pretrial motion if the investigators or public prosecutors of the Prosecution Office of the Republic of Indonesia cannot follow up on [the complaints], thus making the pretrial motion premature as an investigation has not started,” he explained.

Asep believes that public participation in the prevention and elimination of criminal acts of corruption can be realized through seeking, obtaining, and providing data or information on criminal acts of corruption as well as the right to express recommendations and opinions on the prevention and elimination of criminal acts of corruption responsibly. Disregarding such reports for over a year is inappropriate and is against the principle of legal certainty.

The petition detailed that the Petitioners and other members of the community had submitted complaints on alleged criminal acts of corruption at several institutions to the Prosecution Office of Garut. These institutions include Village Government-Owned Enterprise (BUMDes) Trimitra Abadi, Garut Regency DPRD (Regional Legislative Council), Sukanagara Village, Garut Regency Inspectorate, and Garut Regency Housing and Settlement Office. To explain their legal standing, it was revealed that the Petitioners had filed pretrial motions to Bandung District Court, which were denied because the Prosecution Office had not started an examination to respond to public complaints.

Therefore, the Petitioners felt constitutionally harmed due to the lack of legal certainty from the Prosecution Office, who did not respond to public complaints on alleged criminal acts of corruption by those institutions. They also requested that the Court declare the phrase “termination of an examination” unconstitutional and not legally binding if not interpreted to include termination of an examination if the law enforcement officers do not carry out any examination until over a year since a report is made.

Justices’ Advice

In response, Constitutional Justice Daniel Yusmic P. Foekh said that the norms relating to the touchstones must be mentioned. “If it is only Article 28D paragraph (1), then it has been sufficient. However, if more articles in the Constitution [are used as touchstones], they must be elaborated one by one,” he said.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul requested that the Petitioners observe petitions filed to the Court. “Read past petitions,” he said. 

Before adjourning the session, Justice Manahan announced that the petition should be revised and submitted to the Registrar’s Office by Wednesday, April 26, 2023 at 13:00 WIB. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Raisa Ayuditha
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.

---