Chief Justice Anwar Usman reading out the verdict for the material judicial review of Law No. 11 of 2021 on Prosecution, Friday (4/14/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The addition of the authority to file judicial review petition for prosecutors as referred to Article 30C letter h of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Prosecution and its elucidation was declared unconstitutional. The Constitutional Court (MK) pronounced its ruling in Decision No. 20/PUU-XXI/2023 on Friday, April 14, 2023 in the plenary courtroom.

“[The Court] grants the Petitioner’s petition in its entirety; declares Article 30C letter h of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Prosecution and its elucidation in violation of the 1945 Constitution and not legally binding; orders the inclusion of this decision in the State Report of the Republic of Indonesia as it should be,” said Chief Justice Anwar Usman alongside the other eight constitutional justices.

In its legal considerations, read out by Constitutional Justice Manahan M. P. Sitompul, the Court asserted that in Decision No. 33/PUU-XIV/2016 it had stressed that Article 263 paragraph (1) of the Criminal Procedure Code (KUHAP) was constitutional if not interpreted other than that judicial review can only be petitioned by convicts or their heirs and may not be submitted to an acquittal and be free from all lawsuits. In addition, the Court emphasized that if there was a different interpretation of the norm of Article 263 paragraph (1) of the KUHAP, it would actually lead to legal uncertainty and injustice, in turn making the norm unconstitutional.

The Petitioner argued that the fact that Article 30C letter h of the Prosecution Law and its elucidation had authorized prosecutors to file judicial review petitions led to legal uncertainty, thus was against Article 28D paragraph (1) of the 1945 Constitution. He also believed that in the criminal case he had been convicted in, the Prosecution Office filed a judicial review petition although he had been exonerated based on a judicial review decision that he had filed, thus resulting in legal uncertainty. He also alleged that the Prosecution’s judicial review petition was based on a prosecution that was retroactive because it was filed by the prosecutor after the Supreme Court’s decision that exonerated him, which was pronounced on September 15, 2021. Meanwhile, Article 30C letter h of the Prosecution Law and its elucidation was promulgated on December 31, 2021 so that the content was contrary to Article 28I paragraph (1) of the 1945 Constitution on the right not to be prosecuted on the basis of retroactive legal bases.

Expanding Prosecutors’ Authority

In its considerations, the Court also asserted that Article 30C letter h of Law No. 11 of 2021 and its elucidation was a new article included in between Articles 30 and 31 of Law No. 16 of 2004, i.e. point 27 in Chapter III on The Prosecution’s Duties and Authority. Law No. 16 of 2004 did not regulate the prosecutors’ authority to file a judicial review petition. However, in Article 35 letter d of Law No. 16 of 2004 (“The Attorney General has the duties and authority: … d. to file a cassation appeal for the sake of law to the Supreme Court in criminal, civil, and state administrative cases”) the Prosecution in casu Attorney General was given the authority to file a cassation appeal.

The Court, Justice Manahan added, believed that the inclusion of Article 30C letter h and its elucidation in the Prosecution Law had expanded the prosecution office’s authority, in casu the authority to file a judicial review petition without any clear explanation on the substance and grating of the authority. It also asserted that not only would the expansion lead to legal uncertainty, but also potentially lead to authority abuse by prosecutors in relation to judicial review petition on cases where the defendants had been exonerated. In addition, the Court had ruled on the constitutionality of judicial review in Decision No. 16/PUU-VI/2008, which was affirmed by Decision No. 33/PUU-XIV/2016.

“The Court believes that, based on those decisions, the legislatures ought to understand that giving the Prosecution Office an additional authority to file a judicial review petition would lead to violation of justice and legal certainty, which is guaranteed in the 1945 Constitution,” Justice Mahanan said.

Not In Line with KUHAP

Justice Manahan added that Article 30C letter h of the Prosecution Law was not in line with Article 263 paragraph (1) of the KUHAP, as was affirmed by the Court in Decision No. 33/PUU-XIV/2016, where the Court ruled that prosecutors do not have the authority to file a judicial review petition and only convicts or their heirs do.

Therefore, said article and its elucidation was not in line with the four bases for filing a judicial review petition as referred to in Article 263 paragraph (1) of the KUHAP, which the Court had ruled to be conditionally constitutional. It means that the expansion of the prosecutors’ authority in said article and its elucidation would not only lead to legal disharmony and ambiguity over the filing of judicial review petition, but also lead to violation of the right to recognition, guarantee, and protection of fair legal certainty as guaranteed in Article 28D paragraph (1) of the 1945 Constitution.

“Based on the aforementioned considerations, the Petitioner’s argument that Article 30C letter h of Law No. 11 of 2021 and its elucidation has led to unfair treatment and legal uncertainty and, thus, in violation of Article 28D paragraph (1) of the 1945 Constitution, was legally grounded so Article 30C letter h of Law No. 11 of 2021 and its elucidation must be declared unconstitutional and not legally binding,” Justice Manahan stressed.

Also read:

Notary Public Questions Prosecutor’s Authority to File Judicial Review Petition 

Notary Public Adds Touchstones for Petition on Prosecutor’s Authority to File Judicial Review Petition

At the preliminary hearing on Thursday, February 23, 2023, through legal counsel Singgih Tomi Gumilang, the Petitioner revealed a concrete case where he had been convicted in a criminal case and declared guilty by the District Court of Gianyar, Bali and sentenced to two years of prison time. On November 15, 2019, the Petitioner appealed the verdict, after which the High Court of Denpasar exonerated him. This verdict was appealed by the public prosecutor to the Supreme Court on January 21, 2020. The judicial review verdict exonerated him.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
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.

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