Henning Rainer Glaser and Fachrizal Afandi testifying for the Indonesian Prosecutors Association at a material judicial review hearing of the Prosecution and KPK Laws, Monday (9/4/2023). Photo by MKRI/Ifa.

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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 tenth hearing for case No. 28/PUU-XXI/2023, filed by advocate M. Jasin Jamaluddin, took place on Monday, September 4, 2023 in the plenary courtroom to hear two experts for the Indonesian Prosecutors Association (PJI).

Fachrizal Afandi explained that new institutions authorized to investigate special offenses are the National Commission on Human Rights (Komnas HAM) and the Attorney General, pursuant to Articles 18 and 21 of Law No. 26 of 2000 on the Human Rights Court; the Corruption Eradication Commission (KPK), pursuant to Article 6 of the KPK Law; naval (TNI AL) investigators, pursuant to Article 73 paragraph (1) of the Fisheries Law and Article 340 of the Shipping Law; the National Narcotics Agency (BNN), pursuant to Article 71 of Law No. 35 of 2009 on Narcotics; and the OJK (Financial Services Authority), pursuant to Article 49 paragraph (5) of Law No. 4 of 2023.

He added that based on Article 30 paragraph (1) letter e of the Prosecution Law, the prosecution’s authority to conduct additional examination on investigation by the investigators allow public prosecutors to complete prolonged investigation that investigators cannot complete.

“This meaning shift of investigation is inseparable from the meaning of prosecution, which can be seen in Law No. 1 of 2023 on the Criminal Code, especially in Article 132, that is, prosecution is a judicial process that starts from investigation. This means that prosecution is not limited to the public prosecutor’s prosecution in court, but also includes a series of investigative processes carried out by investigators in seeking evidence in criminal trials,” said Fachrizal, a legal scholar focusing on criminal law review, the criminal justice system, and socio-legal studies, before the plenary hearing chaired by Chief Justice Anwar Usman.

Therefore, he added, the public prosecutors’ authority of investigation into corruption crimes in Article 30 paragraph (1) letter d of the Prosecution Law; Article 39 of the Anti-Corruption Law; 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 the KPK Law is constitutional

Prosecution-Police Collaboration

Meanwhile, Henning Rainer Glaser, a lawyer who graduated from Münster University in Germany, said the nature and role of prosecution has historically evolved. The design of prosecution’s functions and powers vary strongly by country. Adversarial systems in criminal justice in common law countries restrict the prosecutor’s investigative role. Today, however, even many adversarial jurisdictions provide some form of investigative powers for the prosecution; some others, like Switzerland, even considerable powers.

The specific design of the prosecutor’s role and its exact scope and powers in investigation process vary significantly across countries and the same applies in the relationship between the police and the prosecution office in investigations. “And so far relations between prosecution and police in investigations might be designed on a more collaborative or complementing or advising on supervising terms, respectively,” Glaser said as interpreted by Indra Blanquita Danudiningrat at the plenary courtroom.

Investigative Authority

Constitutional Justice Suhartoyo asked the two experts a question. He revealed that some literature mentions that Indonesia maintains partial presumption of innocence, so in relation to investigative authority where the investigation by the prosecution and police is separate, collaboration and supervision between the two is possible. However, it is often said that investigation by a single institution is more effective.

“In the context of the protection of human rights in the inquisitorial system, which method is more appropriate? Is it where the investigation and prosecution are combined, or rather one where they are separate so that there is a gap for control?” he asked.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh stated that the prosecution has been given vast investigative powers. He asked whether the powers are only allowed in corruption crimes or in limited cases.

Next, Deputy Chief Justice Saldi Isra asked how the Federal Constitutional Court of Germany decides cases relating to multiple investigation bodies. “According to the expert, in the context of corruption cases, having multiple investigative bodies can be beneficial. Which countries use the combination of the police and the prosecution in investigation and how has this benefitted the fight against corruption?”

Also read:

Advocate Challenges Prosecution’s Investigative Authority 

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 

House’s, President’s Experts Testify on Prosecutor’s Authority as Corruption Investigators

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.

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