Petitioner Changes Articles on Search Procedure in KUHAP
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Hosnika Purba (Petitioner’s legal counsel) after the petition revision hearing for the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code, Thursday (10/19/2023). Photo by MKRI/Ifa.


JAKARTA (MKRI) — The Constitutional Court (MK) held another hearing on the judicial review of Law No. 8 of 1981 on Criminal Procedure Code (KUHAP) on Thursday, October, 19, 2023 in one of the Court’s panel courtrooms. The case No. 115/PUU-XXI/2023 was filed by Leonardo Olefin’s Hamonangan. The on-site hearing was presided over by Constitutional Justices Suhartoyo, Enny Nurbaningsih, and Wahiduddin Adams.

The agenda of the hearing was the examination of the revised petition. During the hearing, Leonardo, represented by legal counsel Hosnika Purba, submitted an amended power of attorney regarding the Petitioner’s name. Previously, the Petitioner’s name was written as “Leonardo Siahaan.” In the revised petition, it was changed to “Leonardo Olefin’s Hamonangan” in accordance with the name listed in his KTP (resident ID card).

Hosnika also submitted revisions to the explanation of the Constitutional Court’s authority and the Petitioner’s legal standing. “There are revisions of the addition of KTP, NPWP (tax identification number) that shows the Petitioner as a tax subject,” he said.

Furthermore, Hosnika conveyed the change to the article petitioned. “Previously, the object of the case was Article 1 number 18 and Article 32 of the KUHAP. We omit Article 1 number 18 regarding the definition of meaning. The definition was changed to Article 5 paragraph (1) letter a number 3,” he explained.

Also read: Fearing Forced Cellphone Inspection by Police, Petitioner Challenges KUHAP

The case No. 115/PUU-XXI/2023 was filed by Leonardo Olefin’s Hamonangan, who believes that Article 5 paragraph (1) letter a point 3 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) is in violation of Article 1 paragraph (3), Article 5 paragraph (1) letter a number 3, and Article 30 paragraph (4) of the 1945 Constitution.

The Petitioner feels he has suffered potential constitutional loss due to the enactment of Article 5 paragraph (1) letter a point 3 of the KUHAP, which states: 1: ordering a suspected person to be stopped and asking for identification. Article 32 of the KUHAP reads, “In the interest of investigation, an investigator may perform house search or clothes search or body search according to the procedure stipulated in this law.

The Petitioner is concerned that the enforcement of Article 5 paragraph (1) letter a point 3 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 anyone under suspicion, citing evidence of a criminal offense, even though they must obtain a permit from the local court to do so.

He revealed that, as a private employee at a company in the East Jakarta area, he often goes home from work at night because of overtime. Once, he was stopped by police officers who inspected his motorcycle and mobile phone. He argued that not all police officers know legal procedures and was concerned that police could abuse their power to inspect mobile phones due to suspicion.

This happened in the East Jakarta area, when police officer Aipda (second sub-inspector) Ambarita carried out a search on a citizen. A viral video circulating on social media shows him forcibly searching a young man’s cellphone. He received a lot of criticism for or being caught red-handed searching without a warrant.

Therefore, in the petitum, the Petitioner asks the Constitutional Court to declare Article 5 paragraph (1) Letter a number 3 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.”

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.


Thursday, October 19, 2023 | 15:45 WIB 148