Ruling hearing for petition No. 115/PUU-XXI/2023 against the Criminal Procedure Code, Wednesday (11/29/2023). Photo by MKRI/Fauzan.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected a judicial review petition of Law No. 8 of 1981 on Criminal Procedure Code (KUHAP) by Leonardo Olefin’s Hamonangan. The ruling hearing for Decision No. 115/PUU-XXI/2023 took place on Wednesday, November 29, 2023 in the plenary courtroom, presided over by Chief Justice Suhartoyo and the other eight constitutional justices.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” Chief Justice Suhartoyo read out the verdict.
Quoting the legal consideration for Constitutional Court Decision No. 60/PUU-XIX/2021 paragraph [3.12], the Court is of the opinion that the absence of restrictions on the authority of the Police as stipulated in Article 16 paragraph (1) letter d of Law No. 2 of 2002 does not cause police officers to commit acts that degrade the dignity and honor of others. The issue that the Petitioner questioned is not the constitutionality but the implementation of said article. According to the Court, the implementation of norms related to the broadcast of police activities in the media has clear boundaries as regulated in laws and regulations, professional code of ethics, and other implementing regulations. Therefore, both police officers and the media are expected to always be careful in carrying out their duties and functions, so that they keep upholding human rights and complies with applicable laws and regulations.
Based on these considerations, the Court reminded members of the Police to always maintain professionalism and integrity while ensuring the protection of human rights, especially in actualizing Article 5 paragraph (1) letter a point 3 of the KUHAP. Similarly, citizens are expected to always support the implementation of the Police’s duties.
The Court also emphasized that inspection by police officers of a person suspected of committing a criminal offense requires speed that might not allow warrant. If a warrant becomes a requirement, the person of interest could use the opportunity to escape and eliminate evidence. In addition, police officers’ examination of people suspected of committing a criminal offense is actually still within the limits of a preliminary inspection, which has not yet entered into involuntary action (pro justitia). Therefore, it was not relevant to question the search warrant from a court or an investigation order unless the person is caught red-handed as argued by the Petitioner.
Next, with regard to the Petitioner’s argument requesting that mobile phones or the like be excluded from inspection, the Court argued that it is difficult to tell whether mobile phone or other similar items were used for a criminal offense or not without an examination.
“Therefore, without intending to assess the Petitioner’s concerns, if these concerns are true and if indeed members of the Police are proven to have violated legal procedures, the Petitioner can take the available legal remedies,” said Constitutional Justice Wahiduddin Adams reading out the legal considerations of the decision.
The Court believes that Article 5 paragraph (1) letter a point 3 of the KUHAP has provided legal certainty and does not violate the right to protection of self, family, honor, dignity, and property, as well as the right to security and protection from threats of fear to do or not to do something as guaranteed in Article 28G paragraph (1) and Article 30 paragraph (4) of the 1945 Constitution. Thus, the Petitioner’s arguments legally groundless in its entirety.
Fearing Forced Cellphone Inspection by Police, Petitioner Challenges KUHAP
Petitioner Changes Articles on Search Procedure in KUHAP
The case No. 115/PUU-XXI/2023 was filed by Leonardo Olefin’s Hamonangan, who believed that Article 5 paragraph (1) letter a point 3 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) was 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 felt he had suffered potential constitutional loss due to the enforcement of Article 5 paragraph (1) letter a point 3 of the KUHAP, which states: “An interrogator as referred to in Article 4: a. because of their duties has the authority: 1. to order a suspected person to stop and to ask 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 was concerned that the enforcement of said article 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 he 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 asked 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.
Wednesday, November 29, 2023 | 16:31 WIB 55