House’s View on Prosecution’s Authority to Investigate

The material judicial review hearing of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption to hear the House’s testimony, Wednesday (5/17/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The Constitutional Court (MK) held a judicial review hearing 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 (KPK) on Wednesday, May 17, 2023 in the plenary courtroom. This third hearing for case No. 28/PUU-XXI/2023 had been scheduled to hear the Government and the House of Representatives (DPR).

On behalf of the House, Habiburokhman delivered several points on the Petitioner’s arguments. He said that the Criminal Procedure Code (KUHAP) had implemented proportional law enforcement with differentiation to the components so that each apparatus has clear limits of duty, eliminating authority overlap. In addition, he added, differentiation was needed to share investigative role between the police and the prosecution.

“Although each component has a certain authority for a different role, in order to realize a whole justice system, all components must coordinate well. However, there could be the provision of special authority for a specific reason, so good and clear coordination on such exception is required,” Habiburokhman said at the hearing chaired by Chief Justice Anwar Usman.

Optimum Enforcement of Law

Habiburokhman further explained that aside from the KUHAP, the Prosecution Law, the Police Law, the KPK Law, and the Anti-Corruption Law make exceptions or special authority. He compared Article 30 paragraph (1) letter b of the Prosecution Law as amended by Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Prosecution Office. Simply put, the prosecutor’s authority to conduct investigations in this norm is not a general provision. In other words, there is an exception and this is very common and might be required when dealing with special matters.

Meanwhile, where efforts to eradicate increasing corruption in Indonesia cannot be done in the usual way, special law enforcement is needed, Habiburokhman said. This is done by authorizing investigations by more than one legal institution, so that the law can be enforced optimally. The prosecutor as an investigator can remove the chain of pre-prosecution so that case resolution can be more efficient. The prosecutor’s authority to conduct investigation will accelerate the prosecutor’s control of the case and the proving will not be lengthy.

“As for the Petitioner’s assumption that with this investigation authority the prosecution will be even more of superpower, the House considers that the prosecution is the controller in law enforcement because only it can determine whether a case can be submitted to the court or not. Although the prosecutor is given the authority to prosecute on behalf of the state, it is inseparable from supervision in its implementation, namely the president, ethics council, the prosecutor’s commission, and the House,” Habiburrohman explained. 

Also read:

Advocate Challenges Prosecution’s Investigative Authority 

Advocate Revises Petition on Prosecution’s Investigative Authority

The petition No. 28/PUU-XXI/2023 was filed by M. Jasin Jamaluddin, an advocate. At the preliminary hearing on Wednesday, March 29, 2023, he asserted that the a quo articles were in violation of Article 28D paragraph (1) of the 1945 Constitution and 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.

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.  

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, May 17, 2023 | 15:51 WIB 130
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