Legal counsel Viktor Santoso Tandiasa reading out the subject matter of the petition at the material judicial review hearing of Law No. 23 of 2014 on Regional Government, Monday (6/19/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing for the material judicial review of Law No. 23 of 2014 on Regional Government as last amended by Law No. 9 of 2015 on the Second Amendment to Law No. 23 of 2014 on Regional Government on Monday, June 19, 2023. The petition No. 60/PUU-XXI/2023 was filed by Johannes Rettob, acting regent of Mimika, Central Papua Province.

The Petitioner challenged Article 83 paragraph (1) of the Regional Government Law, which reads, “The Head of Region and/or Deputy Head of Region shall be suspended without going through the DPRD proposal for having been convicted of a felony punishable by imprisonment for a minimum of 5 (five) years, corruption, terrorism, treason, an offense against the state security, and/or other actions that may divide the Republic of Indonesia.”

At the on-site hearing chaired by Constitutional Justice Daniel Yusmic P. Foekh, legal counsel Viktor Santoso Tandiasa said the Petitioner was the acting regent of Mimika but on March 1, 2023 the he was charged with a criminal act of corruption without detention. The court then issued an interlocutory decision that ruled that an indictment handed down by the High Prosecution Office of Papua was null and void.

“Then the High Prosecution Office filed a new indictment registered as No. 9/Pid.Sus-TPK/2023/PN Jap dated May 8, 2023 and the Petitioner was not detained, Your Honor. So, it means that according to legal reasoning, the Prosecution Office was not worried about the Petitioner not being cooperative. However, then the Papua High Prosecution Office submitted a letter to the acting governor to carry out temporary dismissal while in the first indictment the panel of judges requested that the Petitioner continue carrying out his duties. In this context, the Papua Prosecution Office submitted a letter to the acting governor, even in the third point, it was said that the request was based on the fact that the defendant was still actively leading the region and had not been detained thus was suspected of mobilizing the masses, making opinions on social media seeking political support and justification for his actions. We see this as a mere assumption,” Tandiasa explained.

The Petitioner believes Article 83 paragraph (1) does not differentiate between defendants who are detained and not, thus leading to legal uncertainty and reduced the Petitioner’s constitutional right to recognition, guarantees, protection, and fair legal certainty. As for the non-arrest of the Petitioner in 2 (two) indictments for corruption cases, he still had rights and freedoms as a private citizen and can still carry out his authority, duties, obligations, and responsibilities as acting regent of Mimika to organize the local government in Mimika Regency with the authority, duties, obligations, and responsibilities based on appointment by the Decree of the Ministry of Home Affairs.

These authority, duties, obligations, and responsibilities would not be hindered by his non-arrest. So, the Petitioner believes while the a quo case is ongoing, the Court should hand down an interlocutory decision by delaying the implementation of the article until it hands down a final decision. He also requests that the Court declare Article 83 paragraph (1) of the Regional Government Law unconstitutional and not legally binding if not interpreted to make exception for defendants who are not arrested.

Justices’ Advice

Constitutional Justice Manahan M. P. Sitompul requested that the Petitioner include the Constitutional Court Regulation (PMK) No. 2 of 2021 in explaining the Court’s authority. “I recommend that in the Court’s authority, PMK No. 2 of 2021 is included,” he said. He also said that in the provisional petition the Petitioner provide a compelling reason for the Court to consider granting the petition if this is deemed emergency, not only for the Petitioner but also for the interest of erga omnes,” he said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to elaborate the transcripts of the discussion of the law. “Do, according to the transcripts, the suspicion applies only to the regent or also to the acting regent. This must be explained. There must be an expert statement on this, whether in a book, a journal, or others. There might also need to be comparison to other countries because this norm not is not standalone [but] related to the [KUHAP (Criminal Procedure Code)] on the authority of investigators. Strengthen the elaboration,” he said.

Before adjourning the session, Justice Foekh announced that the Petitioner had 14 days to revise the petition and submit it to the Registrar’s Office on Monday, July 3, 2023. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Andhini S. F.
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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