Imelda, the Petitioner’s counsel, at the ruling hearing of the material judicial review of Law No. 8 of 1981 on the Criminal Procedure Code, Thursday (5/25/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire material judicial review petition of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) in Decision No. 27/PUU-XXI/2023 read out on Thursday, May 25, 2023 in the plenary courtroom. Advocate M. Yasir Djamaludin filed the petition to challenge Article 82 paragraph (1) letter d of the KUHAP.

He questioned the dismissal of his pretrial motions because his case had been forwarded to the district court, so the examination was not continued. Responding to this, the Court through its legal considerations read out by Constitutional Justices Enny Nurbaningsih and Manahan M. P. Sitompul stated that the Court had interpreted the norm in Decision No. 102/PUU-XIII/2015.

In that decision, the Court declared the article unconstitutional and not legally binding if the phrase ‘the examination of a case has begun’ not interpreted as ‘the pretrial motion shall fall through if the subject matter of the case has been transferred and the first trial on the subject matter of the case on behalf of the defendant/pretrial petitioner has begun.’

“With this decision, the Court emphasizes that the interpretation of the deadline referred to in the article means that the pretrial motion is declared as dismissed when the first trial on the subject matter of the case petitioned has begun, regardless of the agenda,” Justice Manahan said.

Controlling Implementation of Authority

In line with this, the Court has also affirmed its stance in Decision No. 66/PUU-XVI/2018. The a quo petition’s substance was contrary to the Court’s stance in those decisions. Although it has a different background from previous petitions, if granted, it would lead to legal uncertainty since pretrial examination is limited to seven days for the sake of speedy trials for legal certainty. Pretrial serves to control any forced action by investigators and public prosecutors before a case is examined by the court.

“Based on these legal considerations, the Court declares [the assertion that] Article 82 paragraph (1) letter d of the KUHAP contradictory to legal certainty as guaranteed by the 1945 Constitution legally groundless in its entirety,” Justice Manahan said alongside Chief Justice Anwar Usman and the other seven constitutional justices.

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At the preliminary hearing, the Petitioner explained that 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 was transferred and the case was investigated by the District Court of Jayapura.

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.

Therefore, the Petitioner requested 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.’

Author       : Sri Pujianti
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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