Petitioners conveying the subject matter at the preliminary hearing of the material judicial review of the Supreme Court Law and the Criminal Procedure Code, Monday (10/9/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a material judicial review hearing of Article 50 paragraph (1) of Law No. 14 of 1985 as amended by Law No. 3 of 2009 on the Second Amendment to Law No. 14 of 1985 on the Supreme Court and Article 253 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) against Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution. The petition No. 122/PUU-XXI/2023 was filed by Asep Muhidin, Rahadian Pratama Mahpudin, and Asep Ahmad (Petitioners I-III).

Article 50 paragraph (1) of the Supreme Court Law reads, “Examination to the cassation shall be conducted by the Supreme Court, based on the letters and only if it is deemed necessary, the Supreme Court shall hear the parties or witnesses, or instruct the Court of First Instance or Appeal Court passing judgment upon the case to hear the parties or the witnesses.”

Article 253 paragraph (3) of the KUHAP reads, “If considered necessary in the interest of the examination as intended in section (1), the Supreme Court can itself hear testimonies of the defendant or witness or public prosecutor, by explaining in brief in a summons to them what it wishes to know or the Supreme Court can also order the court as intended in section (2) to hear their testimonies, by issuing the same summons.”

At the on-site hearing which the three petitioners attended, it was revealed that Petitioner I is an advocate, Petitioner II is an assistant lecturer at the Garut College of Law, and Petitioner III is a journalist. In order to fight for justice if deemed necessary, the Petitioners submit a cassation petition to the Supreme Court on unfair decisions. However, in reality, they found either for cassation or judicial review petitions, no supreme justices who examined, tried, and decided the cases had been requested to provide any information and explanation. There has never even been any decision pronounced in an open, public hearing, which is required by Article 40 paragraph (2) of the Supreme Court Law and its elucidation.

“This has the potential to give a decision with considerations that are not coherent, intact, potentially strong gaps in justification for certain interests that should give a just decision based on God Almighty will actually change its meaning to a decision based on interests,” said A. Muhidin before Constitutional Justices Manahan M.P Sitompul (panel chair), Daniel Yusmic P. Foekh, and M. Guntur Hamzah.

Therefore, in their petitum, the Petitioners request that the Court grant the petition by declaring Article 50 paragraph (1) of the Supreme Court Law and Article 253 paragraph (3) of the KUHP unconstitutional and not legally binding; declare the phrase “only if it is deemed necessary” in Article 50 paragraph (1) of the Supreme Court Law not legally binding insofar as it is not interpreted as “mandatory” so that Article 50 paragraph (1) should read, “Examination to the cassation shall be conducted by the Supreme Court, based on the letters and the Supreme Court shall hear the parties or witnesses, or instruct the Court of First Instance or Appeal Court to pass judgment upon the case to hear the parties or the witnesses.

Comparison with Other Countries

Constitutional Justice Daniel Yusmic P. Foekh observed the professions of Petitioners II and III and expected that proof of their professions be included. He also expected a comparison with the Supreme Court or Constitutional Court in other countries that has the authority to summon at the cassation level.

Meanwhile, Constitutional Justice M. Guntur Hamzah asked the Petitioners to strengthen their arguments by revealing their constitutional losses for different professions due to the enactment of the norms being challenged. “Please exercise caution in choosing diction, because if there is indeed a violation, then the forum is not the Constitutional Court,” he advised.

Constitutional Justice Manahan M. P. Sitompul talked about the difference between judex factie and judex jurist, because the Supreme Court only examines matters that are judex jurist. “Don’t equate everything. What are the constitutional losses for the advocate, lecturer, and journalist due to this legal narrative?” he asked.

At the end of the hearing, Justice Manahan informed the Petitioners that they would have 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Monday, October 23, 2023 at 09:00 WIB. 

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
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.

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