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Abdul Chair Ramadhan testifying as an expert for the House at a material judicial review hearing of the Prosecution and KPK Laws, Monday (8/21/2023). Photo by Humas MK/Fauzan.
JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of three laws: Article 30 paragraph (1) letter d of Law No. 16 of 2004 on the Prosecution Office; Article 39 of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption; as well as Article 44 paragraphs (4) and (5) on the phrase “or the Prosecution Office;” Article 50 paragraphs (1), (2), and (3) on the phrase “or the Prosecution Office;” and Article 50 paragraph (4) on the phrase “and/or the Prosecution Office” of Law No. 30 of 2002 on the Corruption Eradication Commission (KPK). The ninth hearing for case No. 28/PUU-XXI/2023, filed by advocate M. Jasin Jamaluddin, took place on Monday, August 21, 2023 in the plenary courtroom with Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other seven constitutional justices presiding.
The session had been scheduled to hear the House of Representatives’ (DPR) expert, Abdul Chair Ramadhan, and the president/Government’s expert, Hibnu Nugroho.
Considering Benefits
Abdul Chair Ramadhan testified that the Prosecutor’s authority in corruption investigation is to accelerate corruption eradication and the efforts to recover state financial losses as a result of corruption. He asserted that investigation and prosecution are integrated in a functional, interdependent relationship in the legal system. In essence, corruption law, he said, also requires a legal system and its integration requires substance, institutional, and cultural factors.
“In this regard, law enforcement against corruption is not equal to that of other criminal offenses. The law also provides specificity to the Prosecution’s authority. Its authority to investigate corruption is an exception and in the process of can be justified as long as it brings benefits,” he explained.
In line with this view, Abdul said, the Constitutional Court in Decision No. 28/PUU-V/2007 also emphasized the Prosecution’s authority that only applies to certain criminal offenses. The articles in it are not general but common exception to handle special matters if necessary. Abdul also argued that public prosecutors and their role as investigators is actually based on anticipatory and predictive concepts. In short, he explained, if the police investigation function into corruptions case was seen to be optimal, there would be a definite separation of the investigation and prosecution where the prosecutor no longer performs investigation because the investigation would then become the police’s jurisdiction.
“Investigation by the Prosecution Office is still needed with the consideration of greater benefits. If this function was separated, there would be injustice and uncertainty, which would lead to [disruption] in corruption eradicating and restoration of state finances,” Abdul said.
Swift Trial
Meanwhile, Hibnu Nugroho testified that criminal law policy or politics means how to formulate good legislation. In this case, crime prevention policy is part of law enforcement serving as a guideline for law enforcers when countering crimes. It is also an integral part of community protection and efforts to achieve community welfare.
Therefore, he argued, the formulation, application, and execution of penal means are necessary. In the implementation of this policy, synergy between those three existing stages is needed so that everything will work properly.
He further explained that the investigation stage is at the heart of law enforcement and an effort to prove whether or not a criminal offense has been committed. Then, the public prosecutor will make a prosecution letter and believe it is proven or otherwise. Basically, an investigation aims to gather evidence and find suspects. This long process from the beginning of the investigation will lead to the truth, so each stage must be carried out efficiently and carefully. Therefore, investigation is an important part of the legal process and is related to human rights, thus cannot override the principles of swiftness, economy, and time-limit.
“The public prosecutors in this case is an illustration of how the principle of swiftness is applied. The investigation stage continues to develop and thus it must also be followed by effective management. So, that corruption cases, the police and public prosecutors who work together provide an illustration of the increasingly serious government’s legal politics in handling corruption crimes. As such, it is unusual for it to only be handled by a single institution. Cooperation will implement low-cost and swift justice,” Hibnu said.
Also read:
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Advocate Revises Petition on Prosecution’s Investigative Authority
House’s View on Prosecution’s Authority to Investigate
Govt: 1945 Constitution Does Not Prohibit Prosecution Office’s Dual Authority
Different Functions of Police, Prosecution, KPK in Corruption Eradication
Investigators of Police, Prosecution, KPK Synergize in Corruption Eradication
Law Enforcement Overlap over Corruption Cases
Witnesses Deliver Accounts on Investigation Process
At the preliminary hearing on Wednesday, March 29, 2023, the Petitioner asserted that the a quo articles were in violation of Article 28D paragraph (1) of the 1945 Constitution and that the granting of investigative authority on certain offenses to the Prosecution has led it to become a superpower. In addition to prosecution, it can also investigate.
The authority, which was granted by Article 30 paragraph (1) letter d of the Prosecution Law, has enabled the Prosecution to conduct investigation arbitrarily. In addition, since pre-prosecution over investigations carried out by prosecutors is also carried out by prosecutors, so there is no control over investigations carried out by prosecutors by other institutions. In the absence of such control, prosecutors often ignore requests for the rights of suspects, such as requests for the examination of witnesses/experts for suspects to shed light on a case.
On February 21, 2023, a prosecutor declared the Petitioner’s client’s dossier incomplete and that a follow-up investigation would be carried out. However, despite the investigating prosecutor not having carried out that investigation, on February 23, the pre-prosecution prosecutor declared the dossier complete and transferred it to the public prosecutor. During the investigation, the Petitioner’s client asked that his witnesses and experts be examined to shed light on the case. however, the investigator and pre-prosecution prosecutor ignored the request.
Therefore, in the petitum, the Petitioner requested that the Court declare all the petitioned articles in violation of Article 28D paragraph (1) of the 1945 Constitution.
Author : Sri Pujianti
Editor : Nur R.
PR : Raisa Ayudhita
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, August 21, 2023 | 13:51 WIB 105