A material judicial review hearing of Law No. 16 of 2004 on Prosecution to hear the House and the Government, Monday (6/12/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Attorney General (AG) is the highest leader and person in charge of the Prosecution Office. The AG acts as the controller of the implementation of the duties and authority of the Prosecution Office in Indonesia. In exercising judicial power and as part of a government institution, the Prosecution Office is directly responsible to the president.
This statement was made by DPR (House of Representatives) Commission III member Arteria Dahlan on behalf of the House at the material judicial review hearing of Article 1 point 3, Article 19 paragraph (2), Article 20, and Article 21 of Law No. 16 of 2004 on the Prosecution on Monday, June 12, 2023. The fifth hearing for case No. 30/PUU-XXI/2023 had been scheduled to hear the House and the President/Government. The petition was filed by Jovi Andrea Bachtiar, a prosecution analyst and prospective prosecutor at the Tojo Una-Una Prosecution Office, Central Sulawesi Province.
Arteria further revealed that Article 24 paragraph (3) of the 1945 Constitution essentially places the public prosecutor as controller of a case and the executor of prosecution. In carrying out this task, the prosecutor can determine whether a case continues to court or not. This, Arteria added, is important in balancing existing rules. This arrangement was made to harmonize the prosecution’s functions and that of international instruments.
“The changes to the law were made to strengthen independence in the prosecution process and to provide better protection to prosecutors. In carrying out their duties, the AG is appointed and dismissed by the president. This arrangement is the result of the lawmakers’ agreement. Therefore, the president will not appoint people who are not professional and competent to the position of AG. Although there is no standard mechanism for appointment, the AG cannot be free from many parties’ supervision, including accountability to the president and the House so that checks and balances be fulfilled,” he explained before Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other constitutional justices.
Limit to Prosecution’s Authority
The Law and Human Rights Ministry’s advisor on the reinforcement of bureaucratic reform Asep Kurnia testified on behalf of the President/Government. The Government asserted that Article 1 point 3 of the Prosecution Law is a general provision that provides definition and regulates general matters and reflect intent. Prosecution is carried out by public prosecutors, but if the Petitioner wishes that the authority of the AG is expanded to prosecution, appointment of judges, and other matters, the definition would change and it could lead to changes in other norms, Asep added.
He said that, following lawmaking technique, the AG is appointed and dismissed by the president. The constitutional basis for this is Article 24 paragraph (3) of the 1945 Constitution. Meanwhile, Article 19 paragraph (2) of the Prosecution Law stipulates that the fact that the AG is appointed and dismissed by the president is a measured regulation that has been suited to the institution’s characteristics and the legal needs within that institution. “So, based on the characteristics of law enforcement, the appointment of the AG by the president only requires the House’s approval, with the priority being the checks and balances mechanism,” Asep explained.
Political Office
Within Article 20 of the Prosecution Law, Asep said, the AG is a political office that serves to follow legal and societal developments for the sake of achieving state goals. In other words, it is a special legal policy and, as long as it is measurable, it is not discriminatory, unlike what the Petitioner alleges.
“The Government believes the absence of prohibition against the AG also serving as a member of any political party must be adjusted to the substance regulated in measurable prohibitions. The absence of a prohibition against the AG joining a political party has not had any potential to hinder the execution of the AG’s duties,” Asep added.
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Prospective Prosecutor Requests Revision of Definition of Public Prosecutor
Prospective Prosecutor Affirms Background of Petition on Prosecution Law
Different Explanation
Constitutional Justices Suhartoyo and Daniel Yusmic P. Foekh and Deputy Chief Justice Saldi Isra responded to the House’s and the Government’s testimonies. Justice Suhartoyo highlighted three clusters that the Petitioner mentions in the petition: that the AG’s authority does not necessarily make them a public prosecutor, how the House’s checks and balances in the dismissal of the AG works, and the AG’s position as a political party member.
“There are differences in the prosecutor’s and the AG’s authority as a public prosecutor. Please explain the differences in the definitions in the [KUHAP (Criminal Procedure Code)] and the Prosecution Law,” he asked them.
Meanwhile, Deputy Chief Justice Saldi Isra asked the House’s checks and balances function in relation to the AG in terms of law enforcement. He also asked the Government the AG’s position as a member of the cabinet. “Please [explain] whether the AG remains part of the cabinet or not because of their position within our administration system,” he said.
Before adjourning the session, Chief Justice Anwar Usman informed the litigants that the hearing would resume on Tuesday, June 20 at 11:00 WIB to hear the AGO’s testimony.
At the preliminary hearing, the Petitioner requested that the Court provide a constitutional interpretation to revise the definition of public prosecutor in Article 1 point 3 of the Prosecution Law to also include the Attorney General aside from civil servant (PNS) prosecutors as the Attorney General is a retired prosecutor who is no longer a civil servant. Therefore, the a quo norm would not be in violation of Article 18 paragraph (1) of the Prosecution Law. He also requested that the Court provide interpretation of the appointment of the Attorney General that is without a fit and proper test by the House of Representatives (DPR), which is a form of checks and balances. This, he asserted, could jeopardize the Attorney General’s Office’s independence as a law enforcement institution.
The Petitioner also alleged that Article 20 of the Prosecution Law had allowed anyone who had not had any experience as a prosecutor to become an Attorney General. He revealed that he had worked very hard to build a career as a prosecution analyst for 1-2 years and participated in prosecutor education and training (PPPJ) for months so that he could become a prosecutor. He argued that the norm was in violation of Article 27 paragraph (1), Article 28D paragraph (1), and Article 28H paragraph (2) of the 1945 Constitution.
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.
Monday, June 12, 2023 | 15:53 WIB 1360