Legal counsel Hosnika Purba conveying the petition at the preliminary material judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code, Tuesday (10/3/2023) Photo by MKRI/Ifa.

---

JAKARTA (MKRI) — On Tuesday, October 3, 2023, the Constitutional Court (MK) held the preliminary hearing of Article 1 point 18 and Article 32 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) in one of the Court’s panel courtrooms. The case No. 115/PUU-XXI/2023 was filed by Leonardo Siahaan. The on-site hearing was presided over by Constitutional Justices Suhartoyo (panel chair), Enny Nurbaningsih, and Wahiduddin Adams.

The Petitioner, represented by his legal counsel Hosnika Purba, stated his concern that the implementation of Article 1 point 18 and Article 32 of the KUHAP would encourage the police to use their right and authority to check the mobile phone of a rider/driver or someone they suspect, citing evidence of a criminal offense, even though they must obtain a permit from the local court to do so.

Article 1 point 18 of the KUHAP reads, “Body search is an act by an investigator of inspecting the body and! or the clothes of a suspect to find goods which are strongly suspected of being present on his body or being carried by him, for confiscation.”

Article 32 of the KUHAP reads, “In the interest of investigation, the investigator can perform house search or clothes search or body search according to the procedure stipulated in this law.”

The Petitioner argues that the police cannot immediately conduct a phone inspection based on suspicion. According to Trisakti University criminal law expert Abdul Ficar Hadjar, the police must first obtain a warrant from the chief judge of the court at the place where they carry out the inspection.

“On the pretext of protection of the interests of the investigators, the police are allowed to freely inspect citizens’ cellphones, whereas based on Article 37 of the KUHAP, the police are restricted by law in conducting inspection. In the event of forced search by the police without a court warrant or while not caught red-handed, the police officer can be prosecuted for conducting an unlawful search. Therefore, the police cannot arbitrarily carry out forced searches without a court warrant,” he said.

Therefore, in the petitum, the Petitioner asks the Constitutional Court to declare Article 1 point 18 and Article 32 of the KUHAP unconstitutional and not legally binding insofar as not interpreted to mean “In the interest of investigation, the investigator can perform house search or clothes search or body search according to the procedure stipulated in this law; while the inspection of mobile phones or other similar devices that is not part of personal identity and the inspection of mobile phones or other similar devices is lawful as long as evidence of crime or evidence of unlawful conduct is found.”

Justices’ Advice

Responding to the petition, Constitutional Justice Wahiduddin Adams advised the Petitioner to describe his constitutional loss. “The Petitioner did not describe his constitutional loss. [Explain the issue that you experienced that meets the criteria of constitutional loss] so that it can be concluded that you have legal standing. Please elaborate more so that the Court will be convinced that the loss occurred as a result of the norms submitted for review,” he explained.

Meanwhile, Constitutional Justice Suhartoyo said the connection between the constitutional loss and the enactment of the norm being challenged should be elaborated.

At the end of the hearing, the panel informed the Petitioner that he would have 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Monday, October 16, 2023. 

Author         : Utami Argawati
Editor          : Nur R.
PR               : Tiara Agustina
Translator     : Tahlitha Laela/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.

---