The preliminary judicial review hearing of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption for case No. 64/PUU-XXI/2023, Wednesday (7/5/2023). Photo by Humas MK/Ilham W.M.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing for the material judicial review of Article 21 of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption on Wednesday, July 5, 2023 in the plenary courtroom. The case No. 64/PUU-XXI/2023 was filed by Marion, an advocate.

Article 21 of the Anti-Corruption Law reads, “Any person intentionally preventing or obstructing, or directly or indirectly sabotaging investigations, prosecution, and examinations of suspects or defendants or witnesses in corruption cases in a court of justice shall be liable to a prison term of not less than 3 (three) years and not exceeding 12 (twelve) years and/or a fine of Rp150,000,000 (one hundred and fifty million rupiahs) and not exceeding Rp600,000,000 (six hundred million rupiahs).”

Before the panel chaired by Constitutional Justice Arief Hidayat, the Petitioner said Article 21 of the Anti-Corruption Law had harmed his constitutional rights as an individual Indonesian citizen and an advocate with a firm as well as the constitutional rights of Stefanus Roy Rening, an advocate, who has been named a suspect of obstruction of justice (Article 21 of the Anti-Corruption Law). Therefore, he argued that the implementation of the article was not in line with Article 16 in conjunction with Article 31 of Law No. 18 of 2003 on Advocates.

Article 16 of the Advocate Law reads, “Advocates may not be prosecuted civilly or criminally if they perform their profession in good faith for the interest of defending a client in trial.”

The Petitioner said the KPK (Corruption Eradication Commission) investigators who named the aforementioned advocate a suspect of obstruction of justice had committed violation of human rights, more specifically of the advocate’s rights, which is against Article 28D paragraph (1) of the 1945 Constitution, which is the legal foundation for advocates in Indonesia.

He also explained that what the KPK investigators did to Stefanus Roy Rening was unprofessional and an inappropriate implementation of Article 21 of the Anti-Corruption Law, given that Stefanus is an advocate who has met requirements as set by law. He argued that advocates also have legal standing in law enforcement as law enforcement apparatuses equal to KPK investigators and other law enforcement apparatuses such as police investigators, public prosecutors, and judges.

“[I] concluded that the material of Article 21 of Law No. 31 of 1999 is strictly and clearly… a violation of human rights and human freedoms of advocates as an honorable profession (officium nobile) who in carrying out their profession is under the protection of the law, legislation, and code of ethics, have freedom based on the honor and personality of advocates who uphold independence, honesty, confidentiality, and transparency, and in the Indonesian criminal justice system, the rule of law explicitly states that the advocate profession is a law enforcer/law enforcement apparatus (APH) that is equal to other law enforcement agencies,” the Petitioner emphasized.

Therefore, in the petitum, he requested that the Court declare Article 21 of the Anti-Corruption Law unconstitutional and not legally binding.

Justices’ Advice

In response, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to ensure whether he petitions Article 21 of the Anti-Corruption Law or Article 16 in conjunction with Article 31 of Law No. 18 of 2003 on Advocates. “Please confirm this in the subject of the petition since it relates to the touchstones in the Constitution. Also, there must be an issue of norm constitutionality, but you talked about a concrete case more,” he said.

Meanwhile, Constitutional Justice Arief Hidayat advised the Petitioner to revise his authority and legal standing. “The authority has not mentioned Article 29 of the Judiciary Law,” he said.

He also commented on the legal standing. “Such elaboration of legal standing will make it obscure, when it is the entryway into the examination of the subject matter. Without legal standing, [the petition] will be dismissed,” he explained.

Before adjourning the session, Justice Arief announced that the Petitioner had 14 workdays to revise the petition and submit it to the Registrar’s Office by Tuesday, July 18, 2023 at 10:00 WIB. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Muhammad Halim
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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