Petitioner M. Samosir Pakpahan conveying his petition at the panel preliminary hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP), Tuesday (10/10/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held a material judicial review hearing of Article 77 paragraph (1) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Tuesday, October 10, 2023 in the plenary courtroom. The petition No. 123/PUU-XXI/2023 was filed by M. Samosir Pakpahan, an advocate. The on-site hearing was presided over by Constitutional Justices Suhartoyo, Arief Hidayat, and Daniel Yusmic P. Foekh.
The Petitioner said that a person’s arrest can be challenged by a pretrial motion, but the KUHAP does not regulate the period between the determination of the arrest and the pretrial motion filing, thus causing legal uncertainty. He argued that based on facts of pretrial decisions, relating to the issuance of arrest warrant, detention warrant, investigation termination and prosecution determination, suspect determination, search warrant, seizure warrant, and request for compensation or rehabilitation, there has not been any provisions on the period between the warrant and the pretrial. This has caused legal uncertainty for justice seekers and, thus, is against Article 28D paragraph (1) of the 1945 Constitution.
The Petitioner also compared the KUHAP’s provision of a 14-day period between a court decision and appeal or cassation. Law No. 8 of 1981 on the KUHAP and the Constitutional Court Decision No. 21/PUU-XII/2014, he argued, do not regulate the period between the issuance of warrant and the pretrial.
Therefore, in the petitum, the Petitioner requests that the constitutional justices add the phrase “14 days after the issuance of arrest warrant, detention warrant, investigation termination and prosecution determination, suspect determination, search warrant, seizure warrant, and request for compensation or rehabilitation until the pretrial” to the a quo article.
Justices’ Advice
In response, Constitutional Justice Arief Hidayat said that as the case reviews the constitutionality of the norm, the Petitioner would have to clearly explain the contradiction between the article and the 1945 Constitution.
“The article being reviewed should be contrasted with the two articles in the Constitution. Observe its consistency, coherence, and correspondence with Article 27 paragraph (1) and Article 28D paragraph (1). Contrast them. What about the period? Then, in the petitum, ask for the stipulation of a period, since the article does not, which can lead to a lengthy period [in between]. What is the loss which warrant a time limit? Why is the limit 14 days? This must be explained,” he stressed.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh explained that the elaboration of legal standing must include two things: the explanation of the qualification and the fulfillment of the cumulative requirement for the Petitioner’s constitutional impairment. “The explanation of the Petitioner’s qualification as an individual Indonesian citizen must be emphasized, such as by providing KTP (identification), and so on. The Petitioner’s cumulative requirements for constitutional impairment are also not complete yet. Please also observe [past] Constitutional Court decisions [relating to the case],” he said.
At the end of the hearing, the panel informed the Petitioners that he would have 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Monday, October 23, 2023.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
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, October 10, 2023 | 16:11 WIB 208