Legal counsels Harseto Setyadi Rajah and Melani Aulia Putri Jasinta at the ruling hearing of the material judicial review of Law No. 23 of 2014 on Regional Government, Tuesday (7/18/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the material judicial review petition of Article 83 paragraph (1) of Law No. 23 of 2014 on Regional Government, filed by Johannes Rettob, acting regent of Mimika, Central Papua Province. The Decision No. 60/PUU-XXI/2023 was read out at a ruling hearing on Tuesday, July 18, 2023 in the plenary courtroom.
“[The Court] rejects the Petitioner’s provisional petition; rejects the Petitioner’s petition,” said Chief Justice Anwar Usman reading out the verdict.
In its opinion, delivered by Constitutional Justice Daniel Yusmic P. Foekh, the Court referred to its legal opinion Decision No. 024/PUU-1/2005, which stressed that a temporary dismissal of a head of region or their deputy is a state administrative law action that is in motion after a criminal law process proceeds towards a head of region or their deputy. In addition, he added, the dismissal requires that the case is registered in court. This is in line with Article 83 paragraph (2) of Law No. 23 of 2014, which reads, “The regional head and/or deputy regional head of the accused referred to in paragraph (1) shall be suspended by the register of the court.”
Meanwhile, Justice Foekh added, the detention of a head of region or their deputy accused of a crime as referred to in Article 83 paragraph (1) of the Regional Government Law, based on Articles 20 and 21 of the Criminal Code, can be done by an investigator, public prosecutor, or judge to a suspect or a defendant strongly suspected of a criminal offense based on sufficient evidence—in the event that there are circumstances that raise concerns that the suspect or defendant will escape, damage or eliminate evidence, and/or repeat a criminal offense. Thus, detention can only be declared valid if certain conditions are met, such as when it is valid (rechtsvaardigheid) and necessity (noodzakelijkheid).
Meanwhile, Justice Foekh said, the validity of detention is objective and absolute, in that as long as the requirements set in statutory law on criminal offenses whose suspect can be detained are met. Meanwhile, absolute means it cannot be determined by law enforcement officers. Another requirement is that the detention is relative/subjective, in that it is a matter of choice and depends on the assessment of law enforcement officials who will carry it out.
“Therefore, the Court holds that whether or not a head of region or their deputy is charged with a criminal offense as mentioned in the a quo article cannot stop the state administrative law process of temporary dismissal because whether or not they are detained is not an element that determines the administrative temporary dismissal as meant in the a quo article,” said Justice Foekh reading out the decision.
New Interpretation
Justice Foekh added that in the petitum, the Petitioner requested that the Court give a new interpretation of Article 83 paragraph (1) by excluding heads of region or their deputies who are charged with a criminal offense punishable by imprisonment of at least five years, criminal acts of corruption, criminal acts of terrorism, treason, criminal acts against state security, and/or other acts that cause division of the Unitary State of the Republic of Indonesia (NKRI) who are not detained nor are not in a suspended detention status. The Petitioner’s petition has apparently eliminated the main essence of Article 83 paragraph (1) of the Regional Government Law, i.e. the provisions related to the temporary dismissal of the head of region or their deputy who is charged with a criminal offense.
The Court held that with the loss of the essence and purpose of the regulation in Article 83 paragraph (1) of the Regional Government Law, there would be damage to the a quo article, even though the provisions related to the a quo article are closely related to the norms of the following articles. Thus, eliminating the essence of temporary dismissal of regional heads/deputy regional heads who commit criminal offenses as referred in Article 83 paragraph (1) of the Regional Government Law will damage the order of norms and eliminate guarantees of legal certainty in handling legal cases for regional heads/deputy regional heads suspected of committing criminal acts of corruption, criminal acts of terrorism, treason, criminal acts against state security, and/or other acts that can divide the Republic of Indonesia.
“Based on all of the abovementioned legal considerations, the Court believes Article 83 paragraph (1) of Law No. 23 of 2014 has provided fair legal certainty and protection of honor and dignity as guaranteed by Article 28D paragraph (1) and Article 28G paragraph (1) of the 1945 Constitution. Thus, the Petitioner’s petition was legally groundless. [The Court] considered that other matters were not further considered because they are deemed irrelevant,” Justice Foekh stressed.
Also read:
Mimika Acting Regent Challenges Temporary Discharge
Mimika’s Acting Regent Revises Petition on Temporary Dismissal in Regional Govt Law
The Petitioner argued that 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. He believed that as had been inaugurated as acting regent based on a decree of the Minister of Home Affairs, with authority, duties, rights, obligations, and responsibilities as a head of region in casu acting regent of Mimika, these authority etc. would not be obstructed because he was not detained by the law enforcement.
The Petitioner believed while the a quo case was 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.
Author : Utami Argawati
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.
Tuesday, July 18, 2023 | 15:06 WIB 109