Constitutional Justice Suhartoyo reading out the Court’s legal considerations at the ruling hearing of the material judicial review of Law No. 1 of 2023 on the Criminal Code, Thursday (6/15/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) handed down a ruling for the material judicial review of Article 509 Law No. 1 of 2023 on the Criminal Code (KUHP) on Thursday, June 15, 2023. The petition was filed by Mohamad Anwar, an advocate.

The ruling hearing for Decision No. 47/PUU-XXI/2023 in the plenary courtroom was presided over by Chief Justice Anwar Usman and seven other constitutional justices. In its verdict, the Court declared the petition inadmissible.

Criminal Code of 2023 Not in Effect

In its legal considerations delivered by Constitutional Justice Suhartoyo, the Court asserted that the norm being petitioned is in Law No. 1 of 2023, which has been ratified and promulgated on January 2, 2023. Nevertheless, Article 624 stipulates that Law No. 1 of 2023 will be in effect three years after its promulgation, meaning that it will come into effect on January 2, 2026 while the petition was filed on April 26 and registered by the Court’s Registrar’s Office on May 3. Thus, the law had not in effect yet by then.

Justice Suhartoyo added that Article 509 in Law No. 1 of 2023 was not in effect yet and, thus, not legally binding, in line with Article 87 of Law No. 12 of 2011 Lawmaking as last amended by Law No. 13 of 2022, which reads, “Laws and Regulations shall come into force and have binding force on the date of promulgation, unless otherwise specified in relevant Laws and Regulations.” In relation to that, Article 624 of Law No. 1 of 2023 reads, “This Law shall be in effect 3 (three) years since it is promulgated.” Therefore, the a quo Law has not had any impact on the Petitioner’ potential, not to mention actual, constitutional impairment.

Assumed Constitutional Impairment

Justice Suhartoyo added that based on those legal facts, the Petitioner’s assumption of constitutional impairment was unfounded as the requirements referred to in Decisions No. 006/PUU-III/2005 and 11/PUU-V/2007 were not met.

As such, other requirements relating to assumption of specific constitutional impairment and causality between the constitutional rights and the a quo norm were no longer relevant since the requirements for constitutional impairment are cumulative.

Petitioner’s Legal Standing

To grant the Petitioner with legal standing, the Court must consider absolute and cumulative requirement of a legal subject as referred to in Article 51 of the Constitutional Court Law and the requirements for assumed constitutional impairment as referred to in the in Constitutional Court Decisions No. 006/PUU-III/2005 and 11/PUU-V/2007.

Judging the Petitioner’s legal standing could not be separated from the constitutionality and enactment of the a quo norm. As such, the Court could give different considerations on the legal standing of petitioners in different cases.

The Court concluded that the Petitioner did not have the legal standing to file the petition but even if he had and that it could consider the petition’s subject matter, since Article 509 in Law No. 1 of 2023 was not in effect nor legally binding, it held on that the petition was premature.

The Court declared it had the authority to adjudicate the case, but since the Petitioner did not have legal standing, it did not consider the petition further. 

Also read:

Criminalization of Advocates on Duty Questioned

Petitioners Revise Petition on Criminal Punishment on Advocates

The Petitioner challenged Article 509 of the Criminal Code, which reads, “Shall be sentenced to a maximum imprisonment of 1 (one) year or a maximum fine of category III:

a. An advocate who includes or requests to include in a letter of claim or petition for divorce or petition for bankruptcy information regarding the location of residence or the residence of the defendant or debtor, when it is known or reasonably suspected that the information is contrary to the actual situation;

b. A husband or a wife who files a lawsuit or petition for divorce that provides information that is contrary to the actual situation to the advocate as referred to in letter a: or

c. A creditor who submits a petition for bankruptcy that provides information that is contrary to the actual situation to the advocate as referred to in letter a.”

At the preliminary hearing on Tuesday, May 16, legal counsel Galang Brilian Putra, said the Petitioner challenges Article 509 of the Criminal Code in order to prevent the criminalization of advocates on duty so that there would be no undue casualty when the a quo norm takes effect in the next two years.

He argued that advocates had immunity while on duty with a power of attorney from their clients based on good faith. This would mean that as long as the advocates receive the power of attorney to defend their clients based on good faith in and out of court, they cannot be sued civilly or criminally.

Galang explained that Article 509 letters a, b, and c of the Criminal Code are correlated and if an advocate committed an act referred to in letter a, they could be criminalized. If a husband or wife committed an act referred to in letter b, the advocate handling the case could also be criminalized even if the client’s husband or wife provided the advocate with a false information.

He emphasized that Article 509 of the Criminal Code had led to legal uncertainty and threat to and fear in advocates when performing the duties of their profession and had threatened advocates’ dignity and honor. This, he argued, was contrary to Article 1 paragraph (3), Article 28D paragraph (1), and Article 28G paragraph (1) of the 1945 Constitution. Therefore, in the petitum, the Petitioner requested that the Court declare Article 509 of the Criminal Code unconstitutional and not legally binding. 

Author       : Utami Argawati
Editor        : Nur R.
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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